In choosing Solicitor General Elena Kagan as his next nominee to the United States Supreme Court, President Obama has managed to achieve three important goals at once. He's picked another distinguished woman to become a justice -- for the first time in its history three women will sit at the same time on the high court. He's chosen a younger person to join the group, a mortality-table parry to the 2005 Republican nomination of the youthful Supreme Court Chief Justice John G. Roberts. And he's selected a candidate whom some Senate Republicans were publicly signaling they'd accept and confirm even before she was named.
What the president gets from Kagan, 50, is a terribly bright, progressive judicial voice without a great deal of liberal baggage for critics to sort though. The White House also will get someone who has a long-held inside-the-beltway reputation for being some sort of "consensus-builder." Her mission, should she get the job? To build a consensus with one particular new colleague, Justice Anthony Kennedy, the eternal swing justice, so that together they can orchestrate Supreme Court rulings that tack a little less to the right. Justice Kennedy won't lose his power position; but Democrats hope a few of those 5-4 rulings on the most controversial issues will occasionally be authored by Kagan as well.
Even before her nomination was announced, anti-abortion groups had identified Kagan as a "pro-abortion" candidate who supported public financing of abortions. But liberal groups are disappointed with her pronouncement last year that there is no constitutional right to same-sex marriage. Republican committee members no doubt will ask her to explain her view that U.S. judges in some (as-yet-undefined) "circumstances" may rely upon foreign law. The Democrats will ask about her continued support for the Pentagon's "Don't Ask/Don't Tell" policy toward gay or lesbian soldiers. And when it comes to presidential power, she's left enough crumbs on both sides of the path for ideologues to bicker over. What happens in the crossfire over the next few months? And what's that they say about judges who leave all sides a little unhappy at the end of the case? Stay tuned.
The nominee will be criticized by some for her lack of judicial experience. She's never been a judge. But a great many Americans -- including the president -- say they are tired of a Supreme Court made up solely of former federal appeals court judges long lost in the cloistered world of life tenure. She may not have donned a robe yet but she's spent the past 20 years immersed in constitutional law and the legal system. And it's not like she's being called onto the national stage from obscurity. Her nomination to the federal bench was held up by Senate Republicans during the Clinton administration. But the Senate just last year confirmed her as solicitor general. Everyone knows everyone, in other words, and there are no huge surprises expected.
If indeed she is confirmed by the Senate following summertime hearings before its Judiciary Committee, Kagan will replace Justice John Paul Stevens. The oldest member of the Court will gave way to its youngest. She will not dramatically change the Court's ideological makeup -- if anything she would start her tenure sounding more conservative in certain areas than the man she replaces. But she will change its face and perhaps as well its tone for decades to come. The daughter of a school teacher even has a decent personal narrative which plays well. First female dean of Harvard Law School. First female solicitor general. Even in a "You go, girl" world Kagan has gone far first. And she once called judicial confirmation hearings a "vapid and hollow charade," which ought to earn her points for candor if nothing else.
Despite this background, or perhaps because of it, Kagan will continue to be compared by some conservatives to Harriet Miers, the former White House counsel for President George W. Bush who became a failed Court nominee after just a few weeks. But Kagan is no Miers, who failed to get the job in part because she was notably unimpressive about constitutional law during her private round of meetings with senators. Kagan is perhaps better compared with the man with whom she would likely serve out the rest of her career; Chief Justice John G. Roberts Jr., who was at least as conservative when he was confirmed as Kagan's liberal supporters hope she turns out to be down the road.
Nor are critics likely to get traction by attacking Kagan's long association with Harvard Law School. Six of the nine justices are connected in some way with that esteemed institution -- including three of the court's conservatives (Chief Justice Roberts and Justices Antonin Scalia and Kennedy). The two other court conservatives weren't baby lawyers very far away. Justices Samuel Alito and Clarence Thomas both attended Yale Law School. Moreover a handful of senators by my last count also went to HLS and thus surely like their judicial colleagues know about the Scorpion Bowls at the Hong Kong House. Did I mention everyone knows everyone?
Kagan holds out just enough hope for conservatives so that they aren't likely to stand their ground with her nomination. And she teases liberals enough so that they'll be forced to back her despite their concerns that she's hiding some conservative streak within her. The fact is that the nominee has positioned herself perfectly for the modern age of Supreme Court confirmation battles; she's part of the Establishment, she knows how to answer politically loaded questions without cutting off future options and she's enough of an iconoclast to make it through and to make it stick.
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