Elena Kagan’s limited record may smooth her way
President Obama on Monday hailed his nominee to the Supreme Court, Elena Kagan, as “one of the nation’s foremost legal minds,” but Kagan’s biggest asset in upcoming confirmation hearings may be her lack of an extensive public record, providing few openings for Republicans to attack.
A year after making Kagan his administration’s advocate before the Supreme Court, Obama now hopes her personal skills are good enough to craft consensus with the court’s conservative majority — and to win Senate confirmation to the position in the first place.
“She is a trailblazing leader, the first woman to serve as dean of Harvard Law School,” the president said as he made his announcement in the ceremonial East Room of the White House. “Elena is respected and admired not just for her intellect and record of achievement, but also her temperament, her openness to a broad array of viewpoints … and skill as a consensus builder.”
GOP leaders were quick to criticize her as an out-of-touch elitist, someone who has “spent her entire professional career in Harvard Square, Hyde Park and the D.C. Beltway,” as Sen. John Cornyn, a Texas Republican, put it. Complaints also have surfaced about Kagan never serving as a judge.
But Republicans stopped well short of declaring war on the nomination, with one GOP lawmaker telling reporters Monday that, given what they know about Kagan, they consider a filibuster unlikely.
With 59 Democrats in the Senate, Kagan should have little trouble being confirmed this summer, barring a major surprise. The single woman from Manhattan’s Upper West Side would be the third woman on the current high court, and the first justice in nearly four decades who has never been a judge.
Kagan, who would replace retiring Justice John Paul Stevens, also has the advantage for Obama of being relatively young. At 50, she could carry out his legacy for decades on the court.
Kagan has been on the inside track in Democratic legal circles for two decades. As Cornyn pointed out, her career has centered on three places: the University of Chicago Law School, the Clinton White House and Harvard Law School. It was a fortunate combination, since it gave her a chance to get to know nearly everyone who counts in the inner legal circles of the present White House, including President Obama himself, who was also a young law professor at Chicago in the early 1990s.
Blocked from becoming a federal judge by Senate Republicans in 1999, she instead went on to became dean of Harvard Law School in 2003 and won glowing praise.
Kagan, who had never argued a case before the Supreme Court prior to becoming solicitor general last year, paid homage to the court in her statement Monday.
“I have felt blessed to represent the United States before the Supreme Court, to walk into the highest court in this country when it is deciding its most important cases, cases that have an impact on so many people’s lives,” Kagan said. “And to represent the United States there is the most thrilling and the most humbling task a lawyer can perform.”
But as Kagan ventures to the Hill to start calling on lawmakers this week, she’ll face a more skeptical audience. She was confirmed by a vote of 61 to 31 to become solicitor general last year, with seven Republicans supporting her, but those senators say that doesn’t mean they will back her again.
One obstacle the White House expects is the complaint that Kagan hadn’t spent much time in a courtroom before the past year, and another is that she has not published extensively. After writing one somewhat incendiary piece in 1995, in which she faulted senators for not pressing Supreme Court nominees to reveal their views on major issues, there were few scholarly articles.
But that may actually prove helpful to her in her hearings. When lawmakers go looking for documents that reflect Kagan’s work of the last three decades, they’ll get collections that are thin by comparison to those of the judges who were under serious consideration, with little for critics to pick apart.
Kagan does have a record as a policymaker in the Clinton White House, where she served from 1995 to 1999, and there may be a battle with Republicans over access to her White House memos. However, that is less likely to present a challenge than an extensive record of judicial or academic writings.
What Kagan offers is a professional narrative backed up mostly by personal accounts from those who have worked with her over the years. A highlight of her tenure at Harvard came when she got a standing ovation from members of the conservative Federalist Society meeting on campus.
“Elena is someone who has done a superb job her entire career of bringing people together, of listening before deciding,” said Ron Klain, a Harvard classmate of Kagan’s who, as chief of staff to Vice President Joe Biden, was involved in the search for a nominee. “That has been one of her great assets.”
But Kagan took at least one stand at Harvard that did not sit well with conservatives, and is cause for concern among some conservatives now. When she took over as dean, she kept in place a standing policy against full school cooperation with military recruiters on campus. The policy was in place because the military’s “don’t ask, don’t tell” policy governing gays and lesbians in the armed forces violated the school’s anti-discrimination policy.
“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,” said Curt Levey, executive director of the conservative Committee for Justice.
In response, administration officials say Kagan did not draft the policy, and it was in place before she became dean. Military representatives were still allowed to recruit students at the school, Klain said; they just didn’t have help from the law school’s career services office.
“The idea that she is somehow anti-military is ridiculous and absurd,” Klain said. She was the first dean to host veterans at her home, he said, and she sought out chances to address veterans and encouraged students seeking military careers.
In announcing Kagan’s nomination, Obama said that, as solicitor general, Kagan has shown a concern for average people.
“She has repeatedly defended the rights of shareholders and ordinary citizens against unscrupulous corporations,” Obama said. “I think that says a great deal not just about Elena’s tenacity, but about her commitment to serving the American people.”