Kagan's Credentials Draw Praise, Scorn as Battle Lines Form Over Nomination

Tony Mauro

The National Law Journal

Battle lines formed quickly Monday after President Barack Obama announced that he was nominating Solicitor General Elena Kagan to replace retiring Justice John Paul Stevens on the U.S. Supreme Court.

Democrats praised Kagan, the former dean of Harvard Law School, as a highly qualified candidate who deserved quick confirmation, but Republicans questioned her lack of judicial experience and criticized her policies toward military recruiters while at Harvard.

Kagan, 50, would be the youngest member and third woman on the current Court, as well as the first nominee since 1972 who was never a judge. Kagan clerked for Justice Thurgood Marshall and in the early 1990s taught at the University of Chicago Law School, where she first met Obama, then teaching there part-time.

Administration sources indicated Monday that Kagan would continue as solicitor general during the confirmation period, but will not take on any new cases so as to reduce the number of cases she would have to withdraw from if confirmed as a justice. "I doubt she will do any work as solicitor general" during the next few weeks anyway, said Ron Klain, Vice President Joe Biden's chief of staff, said Monday at a press briefing.

The White House is aiming for Senate confirmation hearings by the end of June, with a vote sometime during the summer so she can "get busy," as Obama put it and be ready for the opening of the Court's fall term in October.

"She will be confirmed," said Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee. Leahy added that a quick hearing should be possible because the Senate examined her record just 14 months ago when it approved her nomination as solicitor general by a 61-31 vote.

"Her nomination will bring to the Supreme Court a diversity of experience that's been missing since Justice O'Connor retired in 2006," said Leahy, referring to retired Justice Sandra Day O'Connor's experience as a justice on the Arizona Supreme Court and as a state legislator.

Leahy has been urging presidents for years to look outside the "judicial monastery" for high court nominees, but now that he has gotten his wish Republicans are trying to turn that into a negative.

"Ms. Kagan's lack of judicial experience and short time as solicitor general, arguing just six cases before the Court, is troubling," said Sen. Jeff Sessions, R-Ala., ranking Republican on the Judiciary Committee. "The public expects Supreme Court nominees to possess a mastery of the law, a sound judicial philosophy, and a demonstrated dedication to the impartial application of the law and the Constitution."

Kagan's lack of judicial experience will be easy to overcome, said American University Washington College of Law professor Steve Wermiel. Noting that Kagan once clerked for the high court, Wermiel said, "Her learning curve shouldn't be huge. She understands the Court, and is in as good a position to hit the ground running as any nonjudge in the country."

Sessions also said that, even though Kagan won confirmation last year, a "fresh review based on different criteria" is warranted because a life-tenured seat on the Supreme Court is a "far more significant position." That view was echoed by Sens. Orrin Hatch, R-Utah, and Jon Kyl, R-Ariz., two other members of the judiciary committee.

Conservative groups also signaled they will challenge Kagan because of her policies on military recruiters while dean of Harvard Law School from 2003 to 2009.

Military recruiters were excluded first by the prior dean of Harvard, because the armed forces' "don't ask, don't tell" policy toward gays and lesbians violated the law school's anti-discrimination policy. Kagan continued the policy during her tenure, after the law requiring equal campus access for military recruiters had been struck down. She called the policy on gays in the military "a profound wrong -- a moral injustice of the first order" and joined in a legal challenge to the law requiring campus access by military recruiters. But she ultimately allowed military recruiters so as to not lose federal funding.

Klain said the policy did not keep military lawyers from recruiting Harvard students off-campus -- where most job interviews take place anyway.

It is "ridiculous and absurd," Klain said, to characterize Kagan as anti-military. "Elena respects military service," Klain added, noting that, while she was dean, she held an annual dinner for Harvard Law alumni who are veterans.

But Curt Levey of the conservative Committee for Justice said Monday in a statement: "Millions of Americans will be outraged when they learn that Obama has picked a Supreme Court nominee with a demonstrated hostility to the very armed forces that make our freedom and constitutional rights possible. But that's just one reason why President Obama is in for a more difficult confirmation fight than he bargained for when he chose Kagan."

While adding to the high court's diversity as another woman and as a nonjudge, Kagan scores lower on other kinds of diversity. She'd be the fifth Harvard Law School grad on the Court (along with John Roberts Jr., Anthony Kennedy, Antonin Scalia and Stephen Breyer -- and Ginsburg attended Harvard, too, though she graduated from Columbia Law School.) She would be the fourth justice raised in New York City (with Scalia, Ginsburg and Sotomayor.) Staten Island would be the only New York City borough not represented on the high court.

She is also the third new justice in a row with an undergraduate degree from Princeton University -- following Alito and Sotomayor. And if Kagan is confirmed, the Court would have no Protestant members for the first time in history; she is Jewish, as are Breyer and Ginsburg. The other six justices are Catholics.

Speaking briefly after the president's announcement, Kagan called herself "honored and humbled" by the nomination. She said she felt "blessed" throughout her life to have represented the nation as solicitor general and to have clerked for Marshall and appeals judge Abner Mikva.

She said her job representing the United States as solicitor general is "the most thrilling and the most humbling task a lawyer can perform." Kagan praised the lawyers on her staff as examples of "professionalism, public service and integrity. And I am grateful for all that they have taught me."

She concluded, "Through most of my professional life, I've had the joy of teaching of trying to communicate to students why I love the law so much ... . Law matters: It keeps us safe ... it protects our most fundamental rights and freedoms and...it is the foundation of our democracy."

Related stories: Keep up with The National Law Journal's continuing coverage of the Kagan nomination.