Elena Kagan to the Supreme Court

by John M. Curtis
(310) 204-8700

Copyright May10, 2010
All Rights Reserved.                                

                  President Barack Obama threw conservatives for a loop picking 50-year-old U.S. Solicitor General and former Harvard Law School dean Elena Kagan to the Supreme Court.  When he picked 56-year-old Sonia Sotomayor for the High Court last year, he picked a seasoned jurist with years of experience in New York’s U.S. Second Circuit Court of Appeals and U.S. District Court.  If history’s any guide, Kagan faces about the same confirmation chances in the U.S. Senate as Sotomayor, who replaced 70-year-old retiring liberal associate justice David Souter, confirmed Aug. 8, 2009 [68-31].  Kagan replaces 90-year-old liberal associate Justice John Paul Stevens, a progressive voice on the High Court since nominated by the late President Gerald R. Ford and confirmed Dec. 19, 1975.  Because Kagan replaces a liberal, Senate conservatives aren’t going to squawk too much.

            Barack praised Kagan’s “openness to a broad array of viewpoints,” actually considered more moderate by the Party’s more liberal base.  While there’s one less Democrat in the Senate since Republican Scott Brown replaced the late Sen. Ted Kennedy’s senate seat Feb. 4, 2010, removing Democrats’ filibuster-proof 50-vote majority.  Kagan was “honored and humbled by the nomination” by Barack.  “I look forward to working with the Senate in the next stage of this process, and I thank you again, Mr. President, for this honor of a lifetime,” said Kagan at the White House Rose Garden announcing the nomination.  Kagan met Obama, both Harvard Law School Graduates in 1986 and 1991, respectively, met at University of Chicago Law School while professors on faculty.  Kagan left Chicago to join the Clinton White House as an associate legal counsel [1995-1999].

            Kagan comes to the confirmation hearings as the first nominee, since the late Nixon appointed Chief Justice William H. Requist in 1972, without judicial experience.  She would have judicial experience had Congress approved Clinton’s appointment of Kagan to the U.S. Court of Appeals in the District of Columbia in 1999.  Her scholarly papers at Harvard’s Law Review and the University of Chicago Law School are considered by the American Bar Association as some of the best scholarly writing on administrative and presidential law.  “Elena is widely regarded as one of the nation’s foremost legal minds.  She’s an acclaimed legal scholar with a rich understanding of constitutional law.  She is a former White House aid, with a lifelong commitment to public service and a firm grasp of the nexus and boundaries between our three branches of government,” said Obama.

            What Barack didn’t discuss was Kagan’s personal background, bound, if nothing else, to wield some controversy.  She’s rumored to live with a long-term female companion, fueling speculation about her sexual orientation.  While she’s still in the closet and her sexual orientation is not fair game in her Senate confirmation hearings, her past remarks as Dean of Harvard Law School gives some telling clues about the military’s “don’t ask, don’t tell” policy about gays.  “This action causes me deep distress.  “I abhor the military’s discriminatory recruitment policy,” Kagan wrote in a 2003 e-mail to faculty and students while Dean of Harvard’s Law School.  She called the policy “a profoundly wrong—a moral injustice of the first-order,” revealing her own personal bias supporting gays in the military.  Kagan’s public opinions are fair game in Senate confirmation hearings.

            Kagan’s confirmation hearing last year as Solicitor General should make her vetting easier for Supreme Court associate justice in the U.S. senate.  While there’s a big difference between the time-limited solicitor general and lifetime Supreme Court justice, Kagan is already known to members of the Senate’s Judiciary Committee.  She’s known for a warm and engaging personality, making senate Republicans job more difficult.  Her sparse judicial track record leaves less objections but no surprises about her strong progressive views about abortion, gay marriage or affirmative action.  Ranking member of the Judiciary Committee Sen. Orin Hatch (R-Utah) said his decision this time “will be based on evidence, not blind faith.  Her previous confirmation and my support for her in that position do not by themselves establish either her qualifications for the Supreme Court or my obligation to support her.”

                Because Kagan doesn’t change the ideological complexion on the court, Republicans will object less at her confirmation hearings.  No matter what her qualifications, had Kagan tilted the court’s political balance, she would no doubt get filibustered   Her life experience—both professionally and personally—certainly, as Barack says, adds a unique perspective on the High Court, together with the other two women justices Ruth Bader Ginsberg and Sonia Sotomayor.   Like the late Chief Justice Renquiest, her lack of judicial experience doesn’t detract from her qualifications, having already proven her sophisticated legal chops.  Kagan praised retiring Justice Stevens for having played “a particularly distinguished and exemplary role.  It is therefore a special honor to be nominated to fill his seat.”  Barring some unforeseen surprise, Kagan should expect confirmation before Labor Day.

John M. Curtis writes politically neutral commentary analyzing spin in national and global news. He's editor of OnlineColumnist.com and author of Dodging The Bullet and Operation Charisma.