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Obama Chooses Kagan, Scholar but Not Judge, for Court Seat

NY TIMES
By PETER BAKER and JEFF ZELENY
May 10, 2010

WASHINGTON — President Obama introduced Solicitor General Elena Kagan on Monday as his choice to become the nation’s 112th justice of the Supreme Court, hailing her as a “one of the nation’s foremost legal minds,” as he girded for a battle over whether it takes a judge to serve on the court.

At a ceremony with her at his side in the East Room of the White House, Mr. Obama called Ms. Kagan, the first woman to serve as solicitor general and as dean of the Harvard Law School, a “trailblazing leader” and “consensus builder” known for “her openness to a wide range of viewpoints.”

“She believes, as I do, that exposure to a broad array of perspectives is the foundation not just for a sound legal education but of a successful life in the law,” said the president, who was also joined by Vice President Joseph R. Biden Jr. He emphasized that Ms. Kagan grasps the law’s tangible impact: “That understanding of law, not as an intellectual exercise or words on a page, but as it affects the lives of ordinary people, has animated every step of Elena’s career,” he said.

With a beaming smile, Ms. Kagan said she was proud to be chosen to succeed Justice John Paul Stevens, the leader of the liberal justices on the court, who is retiring after 35 years. She said that the court serves the country “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.”

Her selection immediately touched off a debate about whether her résumé as an academic, a government official and, for one year, the federal government’s chief advocate before the Supreme Court qualifies her to join it. Although many justices through history have joined the court with no prior service as a judge, Ms. Kagan would be the first in nearly four decades.

That lack of time on the bench may both help and hurt her confirmation prospects, creating an opening for critics to question whether she is truly qualified while denying them a lengthy judicial paper trail filled with ammunition for attacks. If she is confirmed, she would, at 50, be the youngest justice and the third woman on the current court.

Perhaps because she has not been a judge, suspicions of her have surfaced on both sides of the ideological divide. Some liberals dislike her support for strong executive power and her efforts to reach out to conservatives while she was running the law school. Activists on the right have attacked her for briefly barring military recruiters from a campus facility because the ban on openly gay men and lesbians serving in the military violated the school’s anti-discrimination policy.

“In her disdain for the military, Elena Kagan considers her own views and opinions as more important than obeying the law and equipping the country with the best fighting force in the world,” said Penny Nance, chief executive of Concerned Women for America, a conservative activist group. “We need justices who put national security over the feelings or demands of special interest groups.”

Other critics said Mr. Obama chose her to be a reliable vote to defend his legislative program if elements of it are challenged before the high court. “Obama wants to pack the court with reliable liberal votes to rubber-stamp an agenda that he knows the American people would not accept,” said Carrie Severino, chief counsel and policy director of the Judicial Crisis Network, another conservative group. “What better way than to appoint a loyalist from his own Department of Justice with a thin public record to advance his leftist legacy through the court.”

Republican senators, who will actually consider the nomination, were more restrained in their initial reactions, promising a fair and respectful hearing while promising to ask tough questions. Democratic senators, on the other hand, rushed out effusive statements of praise, and liberal activist groups publicly rallied behind her despite their reservations.

While critics questioned her judicial inexperience, Senator Patrick J. Leahy of Vermont, the chairman of the Judiciary Committee, called it an asset. “Her historic accomplishments and the way she has conducted herself in these positions has earned her a place at the top of the legal profession,” Mr. Leahy said. “Elena Kagan’s nomination will bring to the Supreme Court a diversity of experience missing since Justice O’Connor retired in 2006,” meaning Sandra Day O’Connor.

The White House made clear that it plans to push back aggressively against the criticism of the military recruitment ban. “The suggestion I’ve seen in some of the attacks on Elena that she is somehow anti-military is ridiculous and absurd,” said Ronald A. Klain, Mr. Biden’s chief of staff and a leading figure on the confirmation team.

Ms. Kagam, a New Yorker who grew up in Manhattan, earned degrees from Princeton, Oxford and Harvard Law School, worked briefly in private practice, clerked for Justice Thurgood Marshall, served as a Senate staff member and worked as a White House lawyer and domestic policy aide under President Bill Clinton. She was nominated for an appeals court judgeship in 1999, but the Senate never voted on her nomination.

If the Senate confirms Ms. Kagan, who is Jewish, the Supreme Court would for the first time have no Protestant members: there would be six justices who are Catholic and three who are Jewish. All nine would have studied law at Harvard or Yale.

Replacing Justice Stevens with Ms. Kagan presumably would not alter the broad ideological balance on the court, but her relative youth means that she could have an influence on the court for decades to come, underscoring the stakes involved.

In making his second nomination in as many years, Mr. Obama was not looking for a liberal firebrand as much as a persuasive leader who could attract the swing vote of Justice Anthony M. Kennedy and counter what the president sees as the rightward direction of the court under Chief Justice John G. Roberts Jr. Particularly since the Citizens United decision invalidating on free speech grounds the restrictions on corporate spending in elections, Mr. Obama has publicly criticized the court, even during his State of the Union address with justices in the audience.

As he presses an ambitious agenda expanding the reach of government, Mr. Obama has come to worry that a conservative Supreme Court could become an obstacle down the road, aides said. It is conceivable that the Roberts court could eventually hear challenges to aspects of Mr. Obama’s health care program or to other policies like restrictions on carbon emissions and counterterrorism practices.

Critics have been pre-emptively attacking her in the days leading up to the president’s announcement. Paul Campos, a law professor at the University of Colorado, Boulder, writing on The Daily Beast, compared her to Harriet E. Miers, whose nomination by President George W. Bush collapsed amid an uprising among conservatives who considered her unqualified and not demonstrably committed to their judicial philosophy.

M. Edward Whelan III, president of the Ethics and Public Policy Center in Washington, wrote on National Review’s Web site that even Ms. Kagan’s nonjudicial experience was inadequate. “Kagan may well have less experience relevant to the work of being a justice than any entering justice in decades,” Mr. Whelan wrote.

Ms. Kagan defended her experience during confirmation hearings as solicitor general last year. “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 testified. “I think I bring up some of the communications skills that has made me — I’m just going to say it — a famously excellent teacher.” ...

Copyright 2010 The New York Times Company

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