Kagan on short list for Supreme Court

By A. James Memmott

April 13, 2010 at 8:54am

A gap in Solicitor General Elena Kagan’s resume may help, not hurt, her chances for a seat on the U.S. Supreme Court.

Kagan, then the Harvard Law School dean, was one of four finalists for the court seat that went to Sonia Sotomayor last year.

With the impending resignation of Justice John Paul Stevens, Kagan is consistently mentioned as a possible Barack Obama pick this time around.

Kagan has academic and governmental experience. She also has a connection at the highest place, having been a colleague of Barack Obama. However, she has never been a judge.

Elena Kagan
Elena Kagan

But that minus could be seen as a plus, as it means that opponents to her nomination would have no rulings to pick over. In addition, she would bring a different perspective to the proceedings.

“There are all former judges on the court now, and I think Obama wants people of more different backgrounds,” Jeffrey Toobin, the New Yorker’s legal correspondent, told National Public Radio last month. “So I think she’s the likely choice.”

Kagan, 49, graduated from Princeton University and Harvard Law School, after which she first clerked for federal Judge Abner J. Mikva and then for U.S. Supreme Court Justice Thurgood Marshall.

She then was an associate at the Washington law firm of Williams & Connolly before joining the law school faculty at the University of Chicago in 1991, the same year Obama took a position at the school.

Kagan held two posts in the Clinton administration, serving as associate counsel to the president and then deputy assistant to the president for domestic policy.

In 1999, she joined the Harvard Law faculty, and four years later then Harvard President Lawrence Summers picked her to be the school’s dean. Summers, who is now director of Obama’s National Economic Council, is said to be backing Kagan for a spot on the court.

Kagan’s lack of a judicial track record bothered some senators last year at hearings on her nomination to be solicitor general. However, she was easily confirmed by a vote of 61-31. Seven Republicans voted in her favor.

She is the first woman to serve as solicitor general, the person who argues on behalf of the United States government before the Supreme Court.

According to Jess Bravin of The Wall Street Journal, some conservative opposition to a Kagan Supreme Court nomination focuses on a stand she took as Harvard Law School Dean.

“Kagan was one of 40 Harvard law professors who signed a friend- of-the-court brief urging the Supreme Court to uphold an appellate ruling that permitted law schools to limit military access to campus recruiting events,” Bravin wrote.

The schools had reasoned that because the military banned openly gay and lesbian individuals from serving in the armed forces, it practiced discrimination and thereby violated campus policies. The Supreme Court eventually ruled in favor of the military.

At the time of the appeal, Kagan called the military’s “don’t ask, don’t tell” policy, “a profound wrong - a moral injustice of the first order.”

Opponents said that this “extreme rhetoric” suggested that she might be in favor of same-sex marriage.

At the confirmation hearings, Sen. John Cornyn, a Republican from Texas, asked Kagan if she believed there was a federal constitutional right to same-sex marriage.

Kagan said there wasn’t. In response to Cornyn’s question about a state constitutional right to same-sex marriage in Massachusetts, Kagan said she did not have “an informed view.”

Kagan does have some support from conservatives, in part from her record as Harvard dean. She has added conservative legal scholars to the faculty, including Jack Goldsmith, who was an assistant attorney general in George W. Bush’s office of legal counsel.

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