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Elena Kagan: Next Supreme Court Nominee?

5 years ago
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A Friday morning news bulletin set Washington abuzz with the speculation that President Obama will nominate U.S. Solicitor General Elena Kagan to the Supreme Court on Monday. Mike Allen, who writes a morning briefing widely read by Washington insiders, got the gossip flowing by leading off his Friday Playbook with news that White House aides would be "shocked" if Obama picked anyone besides Kagan.

But no one knows if the anonymous aides are correct. The White House has been considering about 10 potential nominees, many of them women. Besides Kagan, Michigan Gov. Jennifer Granholm and homeland security director Janet Napolitano are believed to be in the running. Diane Wood, a strong liberal on the 7th Circuit Court of Appeals in Illinois, is also considered a front-runner. Merrick Garland is a Bill Clinton appointee to the D.C. circuit Court of Appeals. He is another leading candidate.Kagan, the former dean of Harvard Law School, is a native of New York City. She received her bachelor's degree from Princeton and her law degree from Harvard. Kagan clerked for Thurgood Marshall, the first black Supreme Court justice, and began her academic career at the University of Chicago Law School, where Obama taught constitutional law. Kagan was believed to be on Obama's "short list" of potential nominees when he made his first pick, current Justice Sonia Sotomayor.

In an e-mail to Politics Daily, Tom Goldstein of SCOTUSblog emphasized that he is not sure Kagan will be Obama's selection -- and suggested that none of the others who were speculating about it Friday are certain either. "Everyone is just reporting the same rumors, none of which are coming from someone who has actually talked to the President," he wrote.

Journalists who cover the Supreme Court have overwhelmingly leaned toward christening Kagan as the front-runner, even as others criticized what one called her "shamefully thin" judicial record. "Her academic career is surprisingly and disturbingly devoid of writings or speeches on most key legal and Constitutional controversies," blogger Glenn Greenwald wrote on Salon. Goldstein agrees, writing that it is possible Kagan "does not really have a fixed and uniform view of how to judge and to interpret the Constitution. ... By all accounts, she just is not doctrinaire."

As a result of her lack of rulings, commentators have parsed past statements -- and times when she did not make statements -- to speculate about her politics. Harvard law professor Lawrence Lessig wrote that he presumed Kagan to be a "progressive" known for her ability to convince people with wildly diverse opinions. "The core of Kagan's experience over the past two decades has been all about moving people of different beliefs to the position she believes is correct," Lessig wrote. "Not by compromise, or caving, but by insight and strength." He also noted that as the dean of Harvard Law, Kagan did not take a lead role in the school's vehement legal criticism of the Bush administration.

Writing in 2009, Slate senior editor Emily Bazelon noted that Kagan supported a lawsuit that would kick military recruiters off of college campuses to protest Don't Ask, Don't Tell. That position was enough to stir the conservative opposition: on National Review's legal blog, Ed Whelan called Kagan "a serious threat to vote to invent a constitutional right to same-sex marriage."
Filed Under: Supreme Court, Elena Kagan

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