Obama to name Elena Kagan to Supreme Court today

McClatchy NewspapersMay 9, 2010 

WASHINGTON — President Barack Obama is expected to announce Monday that he will nominate U.S. Solicitor General Elena Kagan to the Supreme Court to replace retiring Justice John Paul Stevens.

If confirmed, Kagan, 50, a Harvard trained academic, would bring to three — a historic high — the number of women serving on the nine-member high court. She also would be the third Jewish member of the current court.

There was no official word from the White House late Sunday, but a person with knowledge of the president's thinking confirmed that the announcement would come at 10 a.m. Monday.

One Democratic lawmaker hailed the selection, even without official confirmation. "As the first woman dean of Harvard Law School and the nation's first woman solicitor general, Kagan is a pioneer in her own right who is driven by clear thinking, not ideology," U.S. Rep. Kendrick Meek, D-Fla., who is running for Senate, said in a statement.

Kagan had been considered one of Obama's safer choices for a number of reasons.

She survived the confirmation process only last year for her current post. Because she's never been a judge, she also has no judicial record for critics to parse. And she's been on record as supportive of indefinite detention for terrorism suspects, which could appease many Republicans.

But if timing is everything, Kagan's past service on an advisory board for Goldman Sachs — the latest poster child for greed in the finance industry — is certain to draw scrutiny during televised Senate confirmation proceedings.

White House Press Secretary Robert Gibbs said Friday that the panel on which she served from 2005 to 2008 "had absolutely nothing to do with the decisions that Goldman has made that they're now being investigated for" in connection with Securities and Exchange Commission charges. He also noted that Kagan's service on the panel was disclosed prior to her last confirmation hearings.

Kagan also could face questions about having previously called the U.S. military's 'don't ask, don't tell' policy that prohibits openly gay military service "a moral injustice of the first order." Obama has said he intends to end the policy.

Kagan's confirmation could invite debate about academic elitism on the court. As a Harvard Law graduate and former dean of the law school, she would replace Stevens, a Northwestern Law graduate and the only remaining member of the court not trained at Harvard or Yale Law. Although Justice Ruth Bader Ginsburg finished law school at Columbia, another Ivy League school, two-thirds of her training was done at Harvard Law.

Kagan has relatively little courtroom experience. She worked less than three years in a law firm in the nation's capital before entering academia. However, she has many years of legal experience and government experience as well as closed White House ties.

In addition to attending the same law school as the president and previously clerking for one of his important Chicago supporters, Abner Mikva, she also previously worked as a special counsel to now-Vice President Joe Biden when Biden served on the Senate Judiciary Committee. She advised the Clinton administration on tobacco regulation and social welfare policy.

Kagan has argued half-a-dozen cases before the Supreme Court as solicitor general, including one she lost in which the court overturned limits on corporate campaign spending.

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