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Reports: Obama picks Kagan for Supreme Court

May 9, 2010 12:00:00 AM PDT
Multiple reports state that Solicitor General Elena Kagan is President Barack Obama's pick for the Supreme Court vacancy left by Justice John Paul Stevens. He is slated to make the announcement at 7 a.m. PST Monday in the East Room of the White House.If her nomination is approved by the Senate, Kagen would become the fourth woman ever to sit on the nation's highest court.

Kagan is considered one of the finest legal scholars in the country, dazzling both fellow liberal and conservative friends with her intellectual and analytical prowess but also her ability to find consensus among ideological opposites.

Kagan serves as the solicitor general arguing the administration's position at the Supreme Court, as well as supervising the handling of litigation in federal appellate courts.

She would be the only justice on the bench, however, who has never served as a lower court judge. The choice reflects the president's desire to find a candidate outside the so-called "judicial monastery" who has the intellectual heft to hold her own against more conservative justices and perhaps sway wavering justices to her position on divisive issues.

"Elena is universally well-liked and trusted by lawyers on both the right and left of the political spectrum," said Bradford Bereson, former associate counsel in the George W. Bush White House. "Her congeniality, flexibility, and moderate demeanor would serve her well on the Supreme Court, where she would have uncommon potential to build coalitions and consensus with her judicial colleagues, at least over time. She could turn out to be a genuinely influential justice."

Unlike other candidates on the president's short list, Kagan, 50, is in some ways an unknown. Because she has never served on the bench, there's no paper trail to identify her position on some of the hot topics of the day. Although she served in the Clinton White House, and later as dean of Harvard's Law School, she has written little that might reflect positions she would take as a judge.

Since becoming solicitor general, she has personally argued six cases in front of the court on issues such as campaign finance, free speech and national security, but little can be drawn from her arguments because as solicitor general she is obligated to argue the administration's position regardless of whether she personally supports it.

In her confirmation hearing to be the first woman to hold the office of solicitor general, she was asked about her relative lack of courtroom experience.

"I think I bring up a lifetime of learning and study of the law, and particularly of the constitutional and administrative law issues that form the core of the court's docket," she said." I think I bring up some of the communication skills that has made me -- I'm just going to say -- a famously excellent teacher."

Elena Kagan Challenged 'Don't Ask, Don't Tell' As Harvard Dean

Kagan is a product of the Ivy league. She graduated from Princeton University in 1981 and went on to Harvard Law School in 1986.

She has many friends connected to the Obama administration. She served as a law clerk to Obama legal adviser and former federal judge Abner Mikva and later as a law clerk to Justice Thurgood Marshall. She met the president when they taught at the University of Chicago law school. While she was at the University of Chicago, she took on an assignment as special counsel to then-Sen. Joe Biden, who was conducting the confirmation hearings of Justice Ruth Bader Ginsburg.

In 1995, she took a job in the Clinton White House serving as associate counsel to the president and then deputy assistant to the president for domestic policy. She was nominated by Clinton to sit on the U.S. Court of Appeals for the D.C. Circuit, but the nomination stalled in the Senate.

In 2003, Harvard's then-President Larry Summers, who is now director of the White House National Economic Council, named her dean of Harvard Law School.

At Harvard, she pulled off an academic coup by persuading legal scholar Cass Sunstein to leave the University of Chicago for a position at Harvard. Sunstein now works for the Obama administration. She also was widely praised for her pragmatism and her ability to bridge ideological divides between faculty members and the student body.

"She has an unusual brilliance and well developed intra-personal skills," said her friend Carol Steiker, a former Harvard Law School colleague, adding, "and she works harder than anyone I know. She pours her heart and her soul into whatever she does."

Kagan has made clear her distaste for one controversial topic: the military's "don't ask don't tell" policy, which bans homosexuals and lesbians from openly serving in the armed forces.

She has called the position "a profound wrong." She confronted the issue as dean of Harvard Law School when she initially objected to the presence of military recruiters on campus because she believed "don't ask don't tell" violated the school's anti-discrimination policy. But she explained later in an e-mail to faculty and students that she was obliged under federal law to allow the military recruiters on campus or lose government funding. Other law schools eventually took the issue to the Supreme Court, which ruled unanimously in favor of the government's position.

But not all critics of Kagan are conservative. Some liberal commentators hoped Obama, with a strong majority in the Senate, might choose a candidate with a solidly liberal track record. Before her nomination was announced, Glenn Greenwald, writing for Salon, questioned why Kagan hadn't been more vocal during the Bush administration in criticizing the government's broad claims of executive power:

"Where was Elena Kagan during all of this?" Greenwald wrote. "Why is it seemingly impossible to find even a single utterance from her during the last decade regarding the radical theories of executive power the Bush administration invoked to commit grave crimes and other abuses? It's possible that she said something at some point, but many hours of research (and public inquiries) have revealed nothing -- other than when she endorsed the core Bush template during her solicitor general confirmation hearing. "

Supporters of Kagan such as Walter Dellinger, the acting solicitor general during the Clinton administration, responding in Slate that Greenwald's analysis was "way off the mark." Dellinger pointed in part to Kagan's sharp criticism in 2007 of the Bush administration's "unsupported legal opinions" used to justify violations of federal laws regulating wiretapping and interrogation.

"I do think it is important," Dellinger wrote, "to set the record straight on Elena Kagan's views of presidential power: Her views are fundamentally progressive. "

Elena Kagan Has Eschewed Confirmation Process

Human rights advocates have been furious that as solicitor general Kagan has supported some of the same policies held during the Bush administration, including the argument against extending habeas rights to detainees held in Bagram Air Force base.

But experts caution about reading too much into the positions Kagan has taken while serving as solicitor general.

"Part of the reason why it is difficult to look at the solicitor general for the court is because one can't ever really tell, unless they were in the room, whether she is shaping policy, or merely enforcing it," said law professor Stephen I. Vladeck of American University Washington College of Law. "It's unfair to reach any conclusions based purely on external, public indicia."

Obama has made clear his desire to hold confirmation hearings by early July. In her last appearance before Congress, Kagan was a lively witness, at times charming conservative senators. But a confirmation hearing for a lifetime appointment to the court is sure to entail more pointed questions and a closer review of her record.

Kagan may also have to explain comments she made in a 1995 book review on Senate confirmation fights: "When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public."

She will also be asked more questions about decisions she made while working in the Clinton White House. The administration has yet to release any documents from that time period.

During her confirmation hearings for solicitor general, she was asked about several memos that she prepared in 1987 for her then-boss Justice Thurgood Marshall. Conservatives believe the memos on criminal procedure reveal Kagan to be left of the political spectrum.

At her hearing, Kagan downplayed the effect of the memos, saying, "You know, I was a 27-year-old pipsqueak, and I was working for an 80-year-old giant in the law, and a person who, let us be frank, had very strong jurisprudential and legal views."

Sen. Arlen Specter of Pennsylvania asked her about one memo involving the Adolescent Family Life Act, which authorized federal funds for religious organizations designed to discourage teen pregnancy. Specter, then a Republican who has since become a Democrat, quoted Kagan's memo: "It would be difficult for any religious organization to participate in such projects without injecting some kind of religious teaching."

At the hearing, Kagan admitted she had only recently seen the memo again after 20 years. "And I looked at it and I thought that is the dumbest thing I've ever heard," she said.

Specter laughed.


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