In choosing Solicitor General Elena Kagan as his second Supreme Court nominee, President Obama — barely — has obliged supporters who wanted him to look outside one of several boxes in which recent appointments to the court have been made. Unlike all of her prospective colleagues at the time of their appointment, Kagan has never served as a judge.
But the selection of a solicitor general — often referred to as “the 10th justice” because of the office's intimate relationship with the court — is a much less dramatic departure than the appointment of a politician in the mold of Chief Justice Earl Warren or an experienced private practitioner such as Justice Lewis Powell would have been. If confirmed, Kagan would still have a lot in common with other members of the current court, including an Ivy League law degree, Washington experience and service as a Supreme Court law clerk. She may not be a member of the “judicial monastery,” to borrow a term from Senate Judiciary Committee Chairman Patrick J. Leahy, D-Vt., but she's no stranger to its sacred precincts.
Yet if Kagan isn't a particularly surprising choice, she is still an impressive one. A former dean of Harvard Law School, she would have been a plausible candidate for the court even before her service as solicitor general. As lawyers would say, the prima facie case for her confirmation is strong. But, especially given her lack of judicial opinions, members of the Senate Judiciary Committee have a duty to engage her in a conversation about her views of the Constitution and the role of a judge — an exchange in which she needn't take positions on particular matters that might come before her.
Like it or not, Kagan has provided an opening for such a dialogue. In a 1995 law review article, she called Supreme Court confirmation hearings “a vapid and hollow charade,” complaining that “senators today do not insist that any nominee reveal what kind of justice she would make, by disclosing her views on important legal issues.” Kagan should reread her article and strive as a nominee to exhibit the candor she called for as a scholar. In return, her questioners should approach the hearings with a similar commitment to intellectual honesty, which has been woefully missing from recent judicial confirmations.
So far, Republican lawmakers offer little to suggest that they are capable of that sort of statesmanship. Only one Republican member of the committee — Sen. Lindsey Graham of South Carolina — voted to recommend the confirmation of Justice Sonia Sotomayor. The rest sought refuge in the absurd assertion that Sotomayor was outside the mainstream of legal thinking. The hearings on Kagan's nomination thus will be a test not just of the nominee but also of those who sit in judgment of her.
In choosing Elena Kagan for the Supreme Court, President Barack Obama went for safety, quality and potential longevity. Kagan was vetted without much controversy when the president named her to the job of solicitor general, she has been a professor at the University of Chicago and dean of Harvard Law School and she's just 50 years old, meaning she could serve on the court for three or four decades.
What he didn't go for was a candidate with a sharp-edged ideological identity and a thick stack of controversial articles and judicial opinions. Not since the free-for-all that followed President Ronald Reagan's ultimately rejected nomination of conservative Robert Bork in 1987 has a president been willing to choose a justice who presented a large target. The Obama administration's obvious hope is to get its nominee approved with a minimum of trouble.
Kagan has much to recommend her. She is a first-rate legal mind, a respected scholar and accomplished administrator. Though she clearly falls at least slightly left of center in her political outlook, and perhaps more than slightly, she has managed to win sterling accolades from some conservatives. Jack Goldsmith, a Justice Department official during George W. Bush's administration, has said she “combines principle, pragmatism and good judgment better than anyone I have ever met.”
Republicans in the Senate, which seems likely to confirm her, have every right to prefer someone more conservative. But given who won the 2008 election, Kagan is probably about as palatable as anyone they are likely to get.
She will have a few hard questions to answer, particularly about her handling of military recruiters at Harvard. In 2003, after a federal appeals court said law schools had the right to refuse recruiting help to employers that discriminate on the basis of sexual orientation — which disqualified the U.S. military — Kagan restored a ban that had been adopted and dropped before her arrival.
But Kagan did allow access to military recruiters through the Harvard Law School Veterans Association, and veterans who attended the law school during her time there have extolled her support for them. Nor does her support for gay rights make her “anti-military.”
Still, Kagan has her work cut out in explaining her legal reasoning when she signed briefs arguing that law schools had the right to deny help to the military — an argument the Supreme Court then rejected without a dissenting vote.
Another of the few interesting exchanges we can expect will be about a law review article from 1995 in which Kagan said it is “an embarrassment” that “senators today do not insist that any nominee reveal what kind of justice she would make, by disclosing her views on important legal issues.” No doubt she will dutifully eat those words.
Senators may also have some qualms about her narrow professional path, which has been limited to academia and government service. True, the court could benefit from having justices with more diverse career backgrounds. A senator or governor, for example, might remind the other justices that the judiciary is not the only important branch.
Nothing has emerged to suggest that Kagan would not be a good justice. It's just a shame that the selection and confirmation process won't tell the public more about what kind of justice she would be.
She's a radical! She's a socialist. She's a liberal!
Now that she's been nominated for the Supreme Court, U.S. Solicitor General Elena Kagan will be labeled with words that used to have actual meaning before they became political epithets. And she'll be called much worse.
But the senators who must decide whether to approve President Barack Obama's choice to succeed retiring Justice John Paul Stevens have an obligation to do more than posture in pretense of doing their constitutional duty.
The noise surrounding Kagan's confirmation hearings will most likely distort her record and try to drown out rational discussion of complicated legal and social questions that could use thoughtful public debate.
Supreme Court nominations have become a showcase for the worst of the partisanship that divides the nation's capital. And both political parties must share the blame.
Accomplished lawyers and judges with fine credentials, brilliant minds and outstanding skills get reduced to caricatures as interest groups and senators try to pin them down on one side or the other of the most contentious issues of the day. Instead of an exploration of legal philosophy and decision-making principles, televised hearings resemble obstacle courses. The opposition party's goal is “gotcha.”
It could and should be different with Kagan, a 50-year-old who grew up in Manhattan.
She was a history major and student journalist at Princeton, studied at Oxford in England and got her law degree from Harvard, where she would become law school dean. She clerked for Justice Thurgood Marshall, who, according to a New York Times profile, nicknamed her “Shorty.”
She taught at the University of Chicago Law School, worked on domestic policy in the Clinton administration and spent the past year as the Obama administration's top lawyer before the Supreme Court. The Senate confirmed her 61-31 (seven didn't vote).
She has a reputation for having progressive ideas, making conservatives welcome on campus, listening to all sides of an argument and bringing ideological opponents together.
She's neither a darling of hard-line liberals nor a demon to all political conservatives.
Five former solicitors general from Republican administrations, including new Baylor University President Kenneth Starr, endorsed Kagan's nomination for that office. In a letter joining with three former Democratic solicitors general, they praised her “breadth of experience,” ‘'brilliant intellect“ and ”directness, candor and frank analysis."
Some complaints circulating about her are grounded in misinformation, such as the claim that she defied the law and didn't allow military recruiters at Harvard. In reality, she enforced an anti-discrimination policy that predated her deanship. Though she opposed the military's “don't ask, don't tell” policy, she allowed recruiters to work through a student group, then gave them equal access when courts upheld a law denying federal funding to schools that barred military recruiters.
If recent nominations are a guide, there will be far too much uninformed and uninformative commentary about Kagan. Senators need to discern whether she has the intelligence, legal skill and temperament to help decide some of the most difficult legal disputes of this and the next generations.
Going in, there's no apparent evidence that she isn't qualified. Republicans shouldn't pretend otherwise just for show.
She hasn't been a judge.
That, it appears, is the guts of early opposition to Solicitor General Elena Kagan as President Barack Obama's choice to be the 112th justice of the Supreme Court.
Exploring this is just fine. The U.S. Senate's advise and consent function should necessarily involve looking at substance — experience and judicial philosophy being quintessentially substantive topics.
We suggest, however, that a professional life spent practicing, analyzing and teaching law — including being dean of one of the nation's premier law schools, at Harvard — and working at top levels in the White House is not the same as, say, being a dogcatcher.
This is not a disqualifier.
Opinions will differ on the merits of justices chosen though they were not judges, but the list is not insubstantial. Among them are: William H. Rehnquist, Earl Warren, Hugo Black, Lewis Powell, Felix Frankfurter and Louis Brandeis.
There is, because of lack of judicial experience, little paper record for Kagan of the kind senators are accustomed to perusing. Unlike the president's last pick, Sonia Sotomayor, there is no exhaustive record of rulings. But we're confident that Kagan can fill in the blanks — at least better than Harriet Miers, President George W. Bush's shortlived nominee.
Miers flubbed a questionnaire the Senate Judiciary Committee asked her to complete to the point that senators asked her to redo it. The firestorm her perceived lack of qualifications prompted, even within the president's own party, eventually forced the withdrawal of her nomination.
We trust Kagan will do better. In any case, there is a record to review — solicitor general in the Obama administration, law professor at University of Chicago and Harvard, dean of Harvard Law and associate White House counsel in the Clinton administration. She was a law clerk for Judge Abner Mikva of the U.S. Court of Appeals for the District of Columbia Circuit and for Justice Thurgood Marshall of the U.S. Supreme Court.
The vetting must be thorough as to qualification, recognizing, however, that the president should have wide leeway to choose a nominee who suits him. It's the same argument we made in recommending confirmation for both Chief Justice John Roberts and Justice Samuel Alito.
President Barack Obama's nomination of Solicitor General Elena Kagan to serve on the United States Supreme Court is a first-rate choice.
Her education, training, legal experience and temperament make her well suited to review and pass judgment on the huge scope of cases that come before the highest court.
By all accounts, Kagan may well be the missing collegial link between liberal and conservative factions on the court. Her ability to make progress across starkly ideological lines as dean of the Harvard Law School made an impression.
Kagan has not served on the bench. She was nominated in 1999 for the federal appeals court in Washington, but a Republican-majority Congress never acted on the nomination. The partisan reaction to Kagan continued last year, with 31 votes against the confirmation to her current post.
The conundrum for her opponents is finding fault that has any substance or merit. Liberals and conservatives alike parse through her career and find a pattern of work and leadership that is alarmingly difficult to stereotype. Thoughtful and middle-of-the road. Oh my.
Educated at Princeton, Oxford and Harvard, Kagan has clerked on the U.S. Court of Appeals and Supreme Court. She was in private practice, policy positions in the Clinton White House, and she taught at the University of Chicago and Harvard law schools. Kagan represents the U.S. before the Supreme Court as solicitor general.
This is a history of assessing complex matters. The challenges facing her on the court are not unknown to her, or beyond her considerable intellect and talents.
Kagan would only be the fourth woman to serve on the court. Those demographic and sociological notations are becoming less important, but they are not insignificant.
In opposing her nomination, her critics must explain why brains, training, achievement and merit are inadequate benchmarks for outstanding future performance.
The highest court makes decisions that shape American life across generations. Kagan is a highly capable choice for that honor and responsibility.
Elena Kagan may have thought scrutiny was tight serving as dean of Harvard Law School, whose graduates follow every nook and cranny of its work. Or that she was under the gun in the Clinton White House while managing his domestic policy shop. Or that answering questions before the Supreme Court as President Barack Obama's solicitor general was tough sledding.
None of that will compare to the scrutiny she's about to get as Obama's second Supreme Court nominee. And we have no problem with that. (We'll save for another day our own questions that we hope Senate Judiciary Committee members, including Texas Republican John Cornyn, will ask.)
Kagan hasn't been a judge, which adds special emphasis to her Senate confirmation hearing. Without a legal paper trail, senators must draw her out through questioning. She's known as someone who holds her views close, so she'll need to spell out where she stands on major constitutional issues.
But we also believes it could prove a positive that she hasn't served on a bench. We made that point in a recent editorial encouraging the president to consider someone other than a sitting judge. The Supreme Court is already heavily weighted toward judges and needs some diversity of resume.
Kagan's time at Harvard likely will come into play, because she tried to block military recruiters from campus. But it was during that time that she also earned praise from conservatives for her hiring decisions and for listening to their concerns. The Brookings Institution's William Galston argues that Kagan actually quelled long-simmering ideological tensions in Cambridge. Perhaps that's why conservatives like former Reagan Solicitor General Charles Fried have spoken on her behalf.
We look forward to hearing more about her time at Harvard, as well as in the Clinton White House. For those whose views run closer to the center, where we stake our flag, it's encouraging to hear she was hired to run domestic policy by Bruce Reed, spiritual leader of the moderate New Democratic movement. It speaks to her ability to pursue common ground between left and right, which this court needs.
The major disappointment is that she is one more really smart lawyer who has spent her career swimming among Ivy League schools, top government jobs and elite teaching positions. The last four Supreme Court picks — John Roberts, Samuel Alito, Sonia Sotomayor and now Kagan — all spent much or all of their professional lives in the tight Boston-to-Washington legal orbit.
That alone shouldn't disqualify Kagan, of course. In fact, we've long contended that presidents should have leeway to get their preferred candidates through the Senate confirmation process, barring some extreme shortcoming.
That's why we hope Republicans will grill her with appropriate questions but also treat her as they would want a nominee from their own side treated.
President Obama's new nominee for the Supreme Court, Elena Kagan, possesses impressive, meaningful legal credentials despite her lack of judicial experience.
Kagan, 50, already has broken through some glass ceilings. In 2003, she became the first female dean of Harvard Law School. Last year, she became the first female U.S. solicitor general, with responsibility for arguing the government's side of cases before the Supreme Court.
The president chose Kagan over three federal appeals court judges, saying he was looking for someone who understands the impact of the law on average Americans. Obama praised her “temperament and fair-mindedness.”
The last justices who lacked prior judicial experience were William Rehnquist and Lewis Powell, appointed by President Nixon in 1972.
Despite never having served on the bench, Kagan possesses valuable qualifications for this lifetime job. In addition to her current high-pressure post, she served as an adviser in the White House during the Clinton administration. She was also a law clerk for Justice Thurgood Marshall, the first African American to serve on the court.
At Harvard Law, Kagan gained a reputation for bringing conservatives and liberals together. She is viewed as a forceful advocate who could provide a needed counterbalance to the court's conservative wing.
If confirmed, Kagan would replace retiring Justice John Paul Stevens, a liberal. It would be the first time that three women are serving together on the nine-member court, and Kagan would be the fourth female justice in its history.
Not having written judicial opinions, Kagan's ideology is something of a blank slate. A solicitor general advocates the government's position, not a personal view. Her scant written record could help win confirmation, but it also could be counted against her. Only seven Republicans voted for her Senate confirmation as solicitor general last year.
A Kagan appointment is unlikely to shift the court more to the left, but she could turn out to be a less liberal voice than Stevens. During her confirmation hearing last year, she favored broad executive powers for the president, including indefinite detention without trial for suspected terrorists. Such a view runs counter to Stevens’ who has been the conscience of the court in protecting civil liberties.
Conservatives will no doubt press Kagan about her role at Harvard in briefly barring military recruiters from using the law school's main recruitment office. She has called the military's policy against openly gay soldiers “terribly wrong.”
But the school had banned recruiters long before Kagan arrived. She at first allowed recruiters; then banned them for a semester after a court ruling in the school's favor. Harvard Law eventually backed down, again allowing recruiters in 2005, when the Pentagon threatened to withhold federal funds from the school.
The Senate will scrutinize Kagan's record and her views. But at this early stage, her nomination appears to be a sound one.
Barring the kind of surprises she has spent a career trying to avoid, Elena Kagan will become the 112th justice of the U.S. Supreme Court later this summer.
She will assume a seat held over the past 94 years by only three other justices, all of them legends: Louis Brandeis, William O. Douglas and John Paul Stevens. At age 50, Kagan could well serve long enough to break Justice Douglas’record tenure of 36-plus years on the big bench.
Some formalities, of course, come first. Senate confirmation hearings are expected in late June; already the interest groups that pad their payrolls and pay the rent with phony ideological arguments on Supreme Court nominees have begun cranking out appeals.
They will be hard-pressed to find a smoking gun on either side of Kagan's nomination. She has zero judicial experience and very little in the way of a paper trail. She seems to have spent an entire career in zero-defects mode, avoiding any statement that might jeopardize her high school dream of serving on the Supreme Court. She has been President Barack Obama's solicitor general since last year, but in that job, one argues as an advocate, not a partisan.
As court nominees go, she is the blankest slate since President George W. Bush nominated White House lawyer Harriet Miers to the court in 2005. Unlike Miers, who withdrew from consideration after being hammered from the right, Kagan, the former president of Harvard Law School, widely is regarded as superb lawyer.
But she is not the liberal firebrand for which some on the left had hoped, someone who would go toe-to-toe with the court's increasingly activist conservative majority. Kagan appears very much in the mold of the man who nominated her: A conciliator and strategic thinker who knows time is on his side.
Still, it's difficult to know how a justice's thinking will evolve. Richard Nixon didn't intend to appoint the man who would write Roe v. Wade when he named Harry Blackmun to the court in 1970. Gerald Ford didn't intend to appoint a future leader of the liberal bloc when he named Stevens to the bench in 1975. George H.W. Bush had no idea that David H. Souter would move to the left when he joined the court in 1990.
Kagan will have to finesse liberal unhappiness with her support, during her time working in the Clinton administration, for broad executive powers in regulatory affairs. She will have to finesse conservative critics who are unhappy that while at Harvard, she protested the military's “don't ask, don't tell” policy on homosexuality by keeping military recruiters out of the law school's main recruitment office.
But strong executive power for regulatory affairs doesn't necessarily mean a “unitary executive” who can waterboard at will. And even while she protested don't ask, don't tell, she continued to allow recruiters to meet elsewhere with her students.
The most interesting part of the confirmation dance could come when Kagan tries to avoid being pinned down on specifics, even as she defends a 1995 Chicago Law Review article in which she argued, “When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce.”
That's the only way to get confirmed these days. The surprises come later.
©2010, McClatchy-Tribune Information Services.