Bio: Born in New York City. Harvard Law; clerked for Justice Thurgood Marshall; Williams & Connolly; Harvard Law dean. Solicitor General since 2009.
If picked: Experience managing Harvard egos may help her sway justices. Has expertise in administrative and First Amendment law.
For many, being compared with Supreme Court Justice David Souter would seem like a compliment. But for Solicitor General Elena Kagan, the comparison could spell trouble on the right and the left if she is nominated to replace Justice John Paul Stevens.
The 49-year-old solicitor general has been paired with Souter in the sense that both had relatively short paper trails on hot-button issues before being picked as Supreme Court nominees. But Souter, appointed by President George H.W. Bush in 1990, drifted to the left, so Republicans now invoke the slogan, “No more Souters,” to make the point that more needs to be known about nominees’ views if they are to win approval.
Likewise, liberals for the same reason fear that Kagan turn out to be too conservative, avoiding the role that liberals have assigned to whomever replaces Stevens: aggressively countering the Court’s conservative wing.
“Kagan’s absolute silence over the past decade on the most intense Constitutional controversies speaks very poorly of her,” wrote Glenn Greenwald in a widely noted Salon piece that voiced concern that Kagan would move the Court to the right.
Her stances as solicitor general, which show little change from Bush administration positions, have also provoked criticism from human rights advocates.
But supporters like former acting solicitor general Walter Dellinger assert that Kagan will bring a decidedly progressive voice to the high court, including the area of executive power. “She sees presidential supervision of federal agencies as a mechanism to achieve progressive goals,” Dellinger wrote on Slate last week.
Conservatives have generally held their fire on Kagan, noting that as Harvard Law School dean, she hired conservative professors and made them feel welcomed.
But her Harvard record also includes a legal battle that Republicans will surely ask her about: her opposition to the Solomon Amendment, the law that called for withdrawing federal funds to universities that exclude military recruiters. Harvard, like other law schools, had treated military differently because of its “don’t ask, don’t tell policy” on gays in the armed services. She called the policy “a profound wrong — a moral injustice of the first order” and joined in a legal challenge to the Solomon Amendment. But she allowed military recruiters so as to not lose federal funding.