When President Obama's newest nominee for the U.S. Supreme Court, Elena Kagan, last appeared before the Senate Judiciary Committee, Republicans tripped over themselves in praise. "Dean, you've done a terrific job up there at Harvard," said Orrin Hatch of Utah, referring to her job running that university's law school. "I have no doubt in hearing you that you're up to the task," said Oklahoma's Tom Coburn. "I look forward to supporting you," explained South Carolina's Lindsey Graham, calling Kagan "very qualified."
That was about a year ago, when Kagan, a former aid to President Clinton, was nominated as Solicitor General, a post with far less individual power than a Supreme Court Justice. This time, she will face a harder hearing. "I am 100% positive that Senator Coburn is not going to vote for her this time around," said Curt Levey, executive director of the conservative Committee for Justice, which has not yet taken a position on Kagan's nomination. "It's a changed political situation." But the early embrace of Kagan last year by seven key Senate Republicans nonetheless clears the way for an orderly confirmation this summer of a third female Justice for the sitting Supreme Court.
Obama introduced his nominee the worst-kept secret in recent political history in the East Room of the White House on Monday morning, calling her a "trailblazing leader" and "my friend." Said Obama: "Elena is respected and admired not just for her intellect and record of achievement, but also for her temperament, her openness to a broad array of viewpoints, her habit to borrow a phrase from Justice [John Paul] Stevens of understanding before disagreeing, her fair-mindedness and skill as a consensus builder. I hope that the Senate will act in a bipartisan fashion, as they did in confirming Elena to be our Solicitor General last year."
For her part, Kagan fulfilled what has become a standard script for Supreme Court nominees, thanking her mentors and staff and praising her brothers and her parents, both of whom are no longer living. "The court is an extraordinary institution in the work it does and in the work it can do for the American people by advancing the tenets of our Constitution, by upholding the rule of law and by enabling all Americans, regardless of their background or their beliefs, to get a fair hearing and an equal chance at justice," she said.
In a briefing after the announcement, Ron Klain, a top adviser to Vice President Biden who has been working on the nomination, said he expected Kagan to step back from her Solicitor General duties immediately to begin reaching out to Senators. He said that if she is confirmed, her past work for the Administration could force her to recuse herself from as many as 17 Supreme Court cases over the next two years. "Elena is clearly a legal progressive," Klain said, when asked to characterize her legal approach. "She's got a pragmatic perspective."
During the selection process, Obama reviewed the writings of two dozen potential Justices. That list was narrowed to 10 for more research. Obama and Biden spoke with four candidates privately, including both Kagan and Seventh Circuit Judge Diane Wood, who were both finalists last year for the open seat that went to Sonia Sotomayor. Klain said Obama heard from several Senators about a desire to find someone, like Kagan, who had not already served as a judge. "If you took the position that someone with her kind of experience couldn't serve on the Supreme Court, then you would have a situation where Thurgood Marshall would never have served on the Supreme Court and Robert Jackson would have never served on the Supreme Court," Klain said.
If confirmed, Kagan will be the fourth female Justice in the history of the Supreme Court, the eighth Jewish Justice to sit on the court and the first nominee since 1972 with no prior experience as a judge. At 50, Kagan will also be the youngest judge on the current court. Raised on the Upper West Side of Manhattan, Kagan is like the rest of the members of the court: a graduate of the Ivy League, schooled at Princeton and Harvard Law School. She has clerked for Supreme Court Justice Thurgood Marshall and D.C. Circuit Judge Abner Mikva, who is one of Obama's Chicago mentors. She taught at the University of Chicago in the early 1990s, where she first met Obama.
In addition to her Obama ties, Kagan is well known on Capitol Hill, having served for much of President Clinton's second term as a domestic policy adviser in the White House. She also worked briefly in 1993 for Vice President Joe Biden, who was then leading the confirmation hearings of Ruth Bader Ginsburg as chairman of the Senate Judiciary Committee. In 1999, she was nominated by Clinton to the D.C. Circuit, but Senate Republicans blocked a hearing and vote on her nomination.
Despite the widespread praise Kagan receives as a relatively non-ideological thinker, there are some flash points in her record that are sure to be scrutinized over the next two months. In 2003, as dean at Harvard, she filed an amicus brief in a case challenging the constitutionality of the Solomon Amendment, which blocked federal funding for schools that refused to allow military recruitment on campus. After winning a temporary victory in the Third Circuit in 2004, Kagan decided to ban military recruitment on the law school campus while the case went on to appeal to the Supreme Court, citing the military's ban on gays and lesbians as the reason. The following year, the federal government threatened to withhold all funding from the school, and Kagan reversed herself, reopening the school to recruiters.
"I have said before how much I regret making this exception to our antidiscrimination policy," Kagan wrote in a letter explaining her reversal. "I believe the military's discriminatory employment policy is deeply wrong both unwise and unjust ... I look forward to the time when all our students can pursue any career path they desire, including the path of devoting their professional lives to the defense of their country." The Supreme Court later overturned the Third Circuit decision, upholding the Solomon Amendment and unanimously rejecting the arguments that Kagan had made.
As a young law clerk for Justice Marshall, Kagan wrote a memo questioning whether it would be constitutional for religious organizations to receive federal funding to discourage teen pregnancy and provide care to pregnant teens. "It would be difficult for any religious organization to participate in such projects without injecting some kind of religious teaching," she wrote at the time. In her 2009 confirmation hearing, however, Kagan called her memo "the dumbest thing I've ever heard."
In November 2005, Kagan joined other law school deans, including Yale's Harold Koh, who is now a top State Department adviser, in protesting an amendment by Graham that would have stripped federal courts of the right to continue reviewing the cases of certain Guantánamo Bay detainees. "When dictatorships have passed laws stripping their courts of power to review executive detention or punishment of prisoners, our government has rightly challenged such acts as fundamentally lawless," the deans wrote in the letter. "The same standard should apply to our own government."
Nevertheless, some liberals are wary that Kagan, who is not a judge, has no public record of judicial thinking to explore. They are concerned that, if seated on the court, she could be a less progressive force than Justice Stevens, who is retiring this year. Wrote liberal legal blogger Glenn Greenwald: "Nothing is a better fit for this White House than a blank slate, institution-loyal, seemingly principle-free careerist who spent the last 15 months as the Obama administration's lawyer vigorously defending every one of his assertions of extremely broad executive authority."