Elena Kagan Is Obama’s Supreme Court Pick, The Huffington Post, May 10, 2010, by Mike Allen and HuffPo, photo from Wikimedia Commons, excerpts quoted verbatim, commentary by Evans Liberal Politics owner Paul Evans:

President Obama is expected to nominate Solicitor General and former Harvard Law dean Elena Kagan to the Supreme Court on Monday, Mike Allen reports (Politico, quote on Huffington Post).

Kagan has long considered the frontrunner to replace retiring Justice John Paul Stevens, even as questions have emerged about the limited public record of her legal opinions and how she compares ideologically to Stevens, a Gerald Ford appointee who has nonetheless been the high court’s flagship liberal justice for decades. President Obama seems to have few doubts, however, Allen reports.

From Mike Allen on Politico:

WHAT ALLIES WILL SAY: Kagan has a lifetime of public service stemming from the values her parents (mom a public school teacher, dad a lawyer who fought for tenants against big landlords). She’s exceptionally capable at building coalitions and bringing people together — an effective counterweight to Chief Justice Roberts and Justice Scalia, and could help bring swing Justice Kennedy into coalitions. She’s a trailblazer – the first woman dean of Harvard Law School, and first woman Solicitor General. Not just another appellate judge – outside “the “judicial monastery.” Gets along with Justice Scalia in social settings, and has a nice banter with him during arguments. These two will be big: 1) As a Clinton Justice Department official, she worked with Sen. John McCain in negotiating anti-tobacco legislation. 2) In her current job, she argued the administration side in Citizens United, the decision that opened campaigns to more corporate funding. Even though she lost, Dems will argue during her confirmation hearing that the Roberts court is rolling back rights, benefiting corporate interests.

WHAT CRITICS WILL SAY: She has no judicial experience — not a day in a robe. While Kagan can be expected to follow the lead of many of Obama’s judicial nominees and disavow her record of liberal activism, her record shows that she can become emotionally involved on issues she deeply cares about and there is nothing in her record to suggest she has the proper temperament to be a judge. When Kagan was dean of Harvard Law School, she was a tireless advocate for the university’s decision to ban military recruiters from the school’s campus because of “Don’t Ask, Don’t Tell.” Her record is one of an advocate and an activist, not of a fair-minded, impartial judge. President Obama and Kagan are going to be asking Americans to take her at her word in the hearings, ignoring her previous writings and advocacy efforts. The irony is that Obama’s biggest problems might come from his left. Several liberal scholars have come out aggressively against Kagan for her support of providing law enforcement, intelligence and military officials the tools necessary to effectively fight the war on terror.

Commentary by Evans Liberal Politics owner Paul Evans: Kagan, besides having been dean of Harvard Law School, is currently Solicitor General of the U.S., arguing in defense of Congress’ laws before the high court for the United States. She was confirmed in that role on March 19, 2009. The main point of controversy for Kagan, besides being the first Supreme Court nominee in 40 years with no judicial experience, is her rather notorious stand for gay rights while at Harvard Law School. The New York Times reports that:

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.

Replacing Justice Stevens with Ms. Kagan presumably would not alter the broad ideological balance on the court, but her relative youth (Kagan is 50) 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.

The Republicans are not in the greatest shape to attack Kagan on her pro-gay stance, because of the recent flap over Family Research Council co-founder and NARTH activist George Rekers and his Rent Boy scandal. Moreover, in Congress these days, there’s far more vocal denunciation of homosexuality than Republican’s personal feelings (and sometimes lifestyle) actually reflect. If the pro-gay rap is the worst Republicans can come up with against Kagan, then she probably faces pretty easy sailing through the confirmation process.

As the Times reports, though, the lack of judicial experience makes Kagan something of a wild card:

That lack of time on the bench may both help and hurt her confirmation prospects, allowing critics to question whether she is truly qualified while denying them a lengthy judicial paper trail filled with ammunition for attacks. As solicitor general, Ms. Kagan has represented the government before the Supreme Court for the past year, but her own views are to a large extent a matter of supposition.

Perhaps as a result, some on both sides of the ideological aisle are suspicious of her. Liberals dislike her support for strong executive power and her outreach to conservatives while running the law school.

There are some indications that at least some Republicans don’t mind Elena Kagan much at all. See Lindsey Graham: ‘I Like’ Elena Kagan, Which Might Hurt Her Chances, The Huffington Post, April 13, 2010, by Sam Stein. Apparently both Lindsey Graham and Orin Hatch both like Kagan:

“I like her,” the South Carolina Republican said of Elena Kagan, the former Harvard Law School dean and current Solicitor General. “I liked her [during her solicitor general confirmation hearings]. I liked her answers.”

Graham, who spoke to reporters on Capitol Hill, was referring to Kagan’s positions on executive power, which she regards as relatively broad in scope. It’s a position that already has civil libertarian groups skittish about the prospects for her ascending to the Supreme Court. And, in that sense, Graham recognized that an endorsement by a Republican Senator of her viewpoints could rankle this crowd even further.

Asked whether his comments in support of Kagan might actually hurt her prospects for being chosen by Obama, the Senator flashed a smile.

“I like her,” he clarified. “It doesn’t mean I’m going to vote for her. I believe she’s liberal if that helps. I think she is a solid liberal person. Any nominee would be liberal… To suggest [Obama] wouldn’t nominate a liberal would be breathtaking considering everything else he’s done and who he is. But elections matter.”

In making his remarks, Graham becomes at least the second Senate Republican to speak highly of Kagan’s capacity for the bench. Senator Orrin Hatch (R-Utah), last May, called Kagan brilliant and someone who would cause difficult(y) for Republicans should she be nominated (Obama would chose Sotomayor instead).

See also, Kagan, Gays, and the Bogus Right Wing Ideas Factory, The Huffington Post, April 19, 2010, by Nathaniel Frank:

As usual, the belief that a person in power could be either a lesbian or sympathetic to lesbian and gay rights has conservatives fuming. And part of the reason is they feel constrained in their ability to say, in polite company, that they dislike gay people and wish to block their rights even when doing so creates unnecessary human suffering. So they use thinly veiled code phrases that sidestep their real angst. Peter Sprigg of the Family Research Council, for instance, called granting hospital visitation rights to gay partners a case of “pandering to a radical special interest group” because he is too cowardly to admit that his peculiar practice of Christianity would have him leave gay people to die alone. And in yesterday’s Washington Post, Ed Whelan of the Ethics and Public Policy Center accused Kagan of using “strikingly extreme rhetoric” simply for calling the military’s “don’t ask, don’t tell” policy “a moral injustice of the first order.”

If conservatives are willing to let the gay rights issue alone, Kagan should face pretty smooth sailing, although one can expect that progressives may well be displeased that Kagna is so pro-executive branch. Yet for Obama, this nomination fits right in with his administration, which has to a large extent continued the Bush administration policies which strengthen executive branch powers, to the chagrin of some liberals. I wondered if Judge Diane P. Wood might get tapped, but in the end her beliefs were probably too pro-everyman to really fit in with the corporatist, pro-establishment Obama administration. Let’s face it folks, Obama has not exactly instituted policies which benefit the lower and middle classes all that much, and we shouldn’t expect his Supreme Court pick to be anything but fully consonant in these sorts of “coddle the rich” sorts of policies, either. Kagan has consistently backed the administration in police and national security matters, insofar as she has a documented record as Solicitor General. This despite the fact that at Princeton, she wrote a senior thesis under historian Sean Wilentz titled “To the Final Conflict: Socialism in New York City, 1900-1933.” Call it a youthful indiscretion. (See Myths and falsehoods about Elena Kagan’s Supreme Court nomination, Media Matters for America, May 10, 2010, by Media Matters staff.)

As to the business about gay rights in the military, serving as the basis for a semester-long ban to military recruiters while at Harvard, Media Matters reports that “Kagan pledged to defend Solomon Amendment (providing recruiters access to college campuses) as solicitor general despite her personal views,” and so might be considered even in matters of personal strong opinions to be something of a strict constructionist, following precedent. How much of an issue the pro-gay rights personal stance which Kagan holds remains to be seen, yet should be somewhat diminished by this fact.

These two distinctions (being pro-establishment and pro-executive branch) are in force in any decision between Elena Kagan and Diane Wood. But then, any person rising to a high position in government these days has to “fit in” with the establishment of they wouldn’t be where they are. At least Kagan did a creditable job in Citizens United and she has the “right sort” of parents to be considered not of the elite. However, the progressive legal scholar Jonathan Turley (see video, below) feels that she is to the right of Justice Stevens in matters of privacy and freedom of speech. But she has no trail of legal opinions which can be attacked. Because of that, some Republicans shouldn’t have too much difficulty supporting Elena Kagan, despite the temptation to excite the base prior to this fall’s elections.

UPDATE: Obama announced Kagan’s nomination Monday at 10:00 a.m. (see video below).

UPDATE: See, Isn’t This a Bit Much?, The Volokh Conspiracy, May 10, 2010, by David Bernstein, excerpt quoted verbatim:

I know that Harvard and Yale attract a disproportionate percentage of America’s talented youth, but still, isn’t this a bit much? Are there no similarly talented individuals who attended other Ivy League schools, other private universities or (gasp!) even state law schools?

UPDATE: See, What the Elena Kagan pick says about President Obama, Politico, May 10, 2010, by Glenn Thrush.

UPDATE: See, Why Elena Kagan won’t be the next Harriet Miers, Salon, May 10, 2010, by Mike Madden:

Liberals grumble about Kagan’s lack of a record, but the White House made the safe pick for a reason — it’s safe.

….

What really bothers liberals (who weren’t very interested in discussing this on the record on the day the pick was announced) is that Obama probably could have gotten someone who was more openly progressive confirmed. Democrats hold 59 seats in the Senate, but after November, they’re virtually certain to have fewer. Kagan, though, has enough support from Republicans that she could probably have gotten on the court even after the elections. The liberal argument boils down to this: Instead of making a bold, assertive choice, the White House went the safe route and asked the left to trust them. (Which it didn’t even do all that aggressively; Vice President Biden’s chief of staff, Ron Klain, asserted that Kagan is “clearly a progressive,” but also called her a pragmatic, and didn’t really provide much evidence of her progressive ways.)

Still, that hardly makes Kagan the next Miers. There’s no question of her basic proficiency for the job — she’s been serving as solicitor general of the United States since Obama took office, and argued six cases before the court while she was there. She helped shape the administration’s entire line of reasoning on questions of constitutional issues. Unlike Miers, who spent her private career litigating, Kagan taught constitutional law and had previously been nominated to an appellate court by former President Bill Clinton; had Republicans not blocked her way, she would have been there for years by now.

Republicans blocked the nomination of Kagan by Clinton? That in itself is encouraging to me.

UPDATE: See, Obama’s natural choice of Kagan, Salon, May 10, 2010, by Glenn Greenwald.

It’s anything but surprising that President Obama has chosen Elena Kagan to replace John Paul Stevens on the Supreme Court. Nothing is a better fit for this White House than a blank slate, institution-loyal, seemingly principle-free careerist who spent the last 15 months as the Obama administration’s lawyer vigorously defending every one of his assertions of extremely broad executive authority. The Obama administration is filled to the brim with exactly such individuals — as is reflected by its actions and policies — and this is just one more to add to the pile. The fact that she’ll be replacing someone like John Paul Stevens and likely sitting on the Supreme Court for the next three decades or so makes it much more consequential than most, but it is not a departure from the standard Obama approach.

The New York Times this morning reports that “Mr. Obama effectively framed the choice so that he could seemingly take the middle road by picking Ms. Kagan, who correctly or not was viewed as ideologically between Judge Wood on the left and Judge Garland in the center.” That’s consummate Barack Obama.

Highly Recommended: The Problem With Elena Kagan Is Barack Obama, Daily Kos, May 10, 2010, by Cenk Uygur:

My problem with her is my problem with Obama. Cheney and Bush moved the ball 80 yards down-field, whether that was on executive power, warrantless wiretapping, pre-emptive wars or just about any other issue you can think of. And Obama’s bold and brilliant response is to move the ball 10 yards in the opposite direction. Not good enough. Not remotely good enough.

….

Elena Kagan – safe, no record, never challenged power in any meaningful way, never stood up for progressive ideology, beloved by the establishment in Washington – the perfect Obama candidate. I’m tired of it. The ball is down against our own goal line and the guy thinks he just scored a touchdown.

He is never going to throw the ball down the field. If you like two yard pick-ups by a running-back going straight up the middle, you’ll love Obama. It’s the Eddie George presidency. What he doesn’t seem to get is that the other side is eventually going to get the ball back and then it won’t seem like a major accomplishment that we went from our own two-yard line to our own twelve-yard line. It’ll be viewed as a tremendous disappointment.

See President Obama will name Elena Kagan as Supreme Court pick, Politico, May 10, 2010, by Josh Gerstein.

This appointment is all about politics. White House and Democratic strategists have been concerned about the prospects for a bruising confirmation fight just before the November midterm elections. There is an enthusiasm gap with Republican versus Democrat voters which bodes poorly for the fall elections. In recent weeks this gap has shrunk from 19 points in early April to only 10 points currently. According to this source, “Gallup states that if the elections were hypothetically held today the voting preference would be a 45% tie,” so that an enthusiasm gap is not necessarily decisive in projected voting.

Even so, Democratic theorists have long dreaded a bruising confirmation fight which would take place if a “true liberal” — someone to the left of, say, Sonia Sotomayor — were nominated to fill Justice Stevens SCOTUS seat. Rachel Maddow tonight on MSNBC stated that at least one Republican power orgnanization is advocating delaying the nomination, whoever was nominated, beyond the August recess or to delay it till as close to the election as possible.

Therefore, it was almost inevitable that the nominee would be someone “safe”, and unlikely to bring the kind of confirmation fight that could result in a united Republican opposition. Only a few Republican Senators, such as Graham or Hatch (or Snowe, who voted for Kagan’s confirmations as Solicitor General) are needed to avert a prospective filibuster during the confirmation hearing. In Democratic circles, the main thing is to avoid igniting the Republican base just before the fall elections. Elena Kagan is such a “safe” choice.

And (let’s make it official), let me be the first to echo the former Redskin’s quarterback Joe Theisman and welcome Ms. Kagan to the rarefied world of power politics by simply saying: “lighten up Elena baby!” ~ Paul Evans

UPDATE: See Nomination of Kagan Leaves Some Longing on the Left, The New York Times, May 10, 2010, by Peter Baker.

See the SCOTUS Blog article 9,750 Words on Elena Kagan, which has many links and resources.

Watch the CSPAN video on Kagan’s Solicitor General Confirmation Hearing from February 9, 2009 — 2 hours, 6 minutes.

Watch CBS News press conference with Senator Patrick Leahy on the nomination here.

Read the announcement on the White House blog.

Click here to watch the full speech video on CSPAN. Click here to see the transcript text.

Watch Elena Kagan thank the President for the nomiation.

Criticism from the right: Watch Sessions: Unacceptable That Kagan Banned Military Recruiters From Harvard, CNN on YouTube – 1:59.

Elena Kagan Nominated To US Supreme Court

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