Obama chooses Kagan for high court, stresses her ‘restraint’
Calling her a “trailblazing lady,” President Obama announced his nomination of Solicitor General Elena Kagan for the Supreme Court in a ceremony Monday morning in the White House.
Kagan had won accolades from “across the ideological spectrum,” Obama said, praising her “openness to a broad array of viewpoints” and what he said was a “habit of understanding before disagreeing.”
“She sought to recruit prominent conservatives” when she was dean of Harvard Law School, Obama said, and encouraged students to debate and find common ground in the practice of law. He also praised her work in support of everyday Americans as the government’s chief lawyer and as a legal scholar.
“I think it says a great deal about her commitment to protect our fundamental rights,” Obama said. “It says a great deal about the path Elena has chosen.”
Kagan would replace Justice John Paul Stevens, who announced his retirement a month ago after almost 35 years on the high court. A confirmation hearing before the Senate Judiciary Committee could take place in late June or early July. Kagan’s confirmation would make history in one sense: It would mark the first time three women served on the Supreme Court.
The scene at the White House was reminiscent of Obama’s public nomination of then-judge Sonia Sotomayor last year. The nominee’s friends and political allies streamed through the White House grand foyer, a pianist playing as they awaited the announcement amid a festive atmosphere.
Administration officials hope the confirmation process will be like Sotomayor’s too. Though Republicans lined up to grill Sotomayor, picking apart her judicial philosophy and the president’s emphasis on her “empathy” as a qualifying attribute, she was confirmed without much trouble.
In that case, of course, Republican lawmakers were being cautious not to alienate Latino voters eager to see her ascend to the high court.
Kagan’s constituency is much closer to the White House, evident in the gilt-trimmed East Room on Monday morning. Present in the room were fellow veterans from the Clinton administration. Obama introduced Kagan to the crowd as “my friend.”
In his remarks, Obama lauded Stevens’ commitment to “restraint and respect for precedent” and his awareness of the effect of judicial decisions on people.
“While we can’t presume to replace his wisdom and experience,” Obama said, Kagan can “ultimately provide that same kind of leadership on the court.”
Kagan said she felt “blessed” to have represented the U.S. government before the Supreme Court, calling it “the most thrilling and humbling task a lawyer can perform.”
She praised the work of Justice John Paul Stevens, noting his commitment to precedent -- a buzzword in the White House argument for adding Kagan to the court. The president has expressed great dismay that the court recently struck down campaign finance laws in its Citizens United decision, overturning decades of precedent. Administration officials say Kagan would be a backstop against that happening again.
“Law matters,” Kagan told the crowd. “It keeps us safe. It protects our most fundamental rights and freedoms.”
Like Stevens, Kagan has ties to Chicago. She taught alongside Obama at the University of Chicago Law School in the 1990s before joining the White House during the Clinton administration. There, she emerged as a top domestic policy adviser to the president. She went on to become Harvard Law School’s first female dean and was credited for revitalizing the school.
Kagan was confirmed by the Senate last year as solicitor general by a 61-31 vote. As solicitor general, she argued for the government, and lost, the Citizens United case.
At age 50, Kagan would be the youngest member of the court and the only one without previous judicial experience. She also would be the fourth to have grown up in New York City, after Justices Antonin Scalia, Ruth Bader Ginsburg and Sonia Sotomayor. Kagan grew up in Manhattan and graduated from Hunter College High School.
She would be the third justice in a row to have gone to Princeton as an undergraduate. Justice Samuel A. Alito Jr. and Sotomayor were also Princeton grads. Her appointment would also leave the court without a Protestant for the first time. Currently, six of the justices are Catholics and two are Jewish, as is Kagan.
As dean at Harvard, Kagan developed good relations with conservative professors, students and alumnae despite her progressive credentials.
She once hosted a celebratory dinner for conservative Justice Antonin Scalia when he marked his 20th anniversary on the high court, and another time she drew a standing ovation from members of the Federalist Society during a national convention on campus.
In part because of that track record, some liberal activists had come to consider Kagan one of the more conservative people on Obama’s working list of potential nominees.
But advisers to the president characterize her as a progressive who is able to find common ground with legal thinkers across the left-right spectrum.
Obama advisers said that was what the president was looking for: a nominee who might work to keep the court’s five conservatives from running roughshod over the four liberals.
Kagan’s nomination is not much of a surprise in political circles, where her name has been in play for months. She surfaced as a possible candidate when a Supreme Court position came open last spring, but Obama appointed Sotomayor instead.
When Stevens announced his retirement, Kagan was thought to have the inside track to the nomination. In academia and in politics, she has worked with key players in Obama’s circle.
Despite her years as a law professor, Kagan has managed to avoid taking stands on controversial subjects such as abortion or affirmative action. While at Harvard, however, she joined a lawsuit that contested whether military recruiters could come to the campus to interview graduates. Harvard and several other law schools had a policy against having recruiters for employers who discriminated based on sexual orientation.
When the lawsuit reached the Supreme Court, the justices unanimously upheld the authority of Congress to require equal treatment for military recruiters.
Some conservatives say Senate Republicans should question Kagan closely because she has a limited public record. They cite her 1995 law review article arguing that senators should require nominees to talk about their views on legal controversies. In that article, she said that Senate hearings were a “vapid and hollow charade” where nominees were permitted to “stonewall” and avoid detailing their actual views. Clarence Thomas was confirmed even though his “substantive testimony had become a national laughingstock,” she wrote.
“It’s especially important that the Senate hold Kagan to the Kagan Standard,” said Ed Whelan, president of the Ethics and Public Policy Center. “Among Supreme Court nominees over the last 50 years or more, Kagan may well be the nominee with the least amount of relevant experience.”
Carrie Severino, general counsel of the Judicial Crisis Network, a conservative interest group, said the debate over Kagan would center on her status as an administration insider who was picked, as she charged, to “rubber stamp” the president’s domestic policy agenda if legislation pertaining to healthcare and financial regulatory reform were challenged in court.
Liberals are already lined up behind her.
“She has an excellent chance, and she would be terrific,” Harvard law professor Laurence H. Tribe said. “She has a masterful command of so many areas of law. And she’s been vetted and recently confirmed. Her writing is not voluminous, which is also a plus.”