Obama names Elena Kagan as Supreme Court nominee

McClatchy NewspapersMay 10, 2010 

WASHINGTON — President Barack Obama on Monday nominated Solicitor General Elena Kagan to the Supreme Court to replace Justice John Paul Stevens, who's retiring.

"Elena is widely regarded as one of the nation's foremost legal minds," Obama said, with the woman he called his friend at his side in the East Room of the White House.

He said Kagan "embodies that same excellence, independence, integrity and passion for the law" as Stevens does. He called Stevens "a giant … with fidelity to the constitutional ideal of equal justice under the law."

"I am honored and I am humbled," Kagan said, calling it a "special honor" to be nominated to take the seat that Stevens holds.

Kagan, 50, would be the youngest justice on the nine-member court. Her age probably was a key factor in her nomination. because it could mean a long tenure and a long-lasting imprint on the court for Obama.

She'd be the third woman on the court — the most ever — joining Justices Sonia Sotomayor, whom Obama named last year, and Ruth Bader Ginsburg, whom Bill Clinton named in 1993.

Kagan would be the first person in nearly 40 years to join the court without previous experience as a judge, something that could be an issue in her confirmation hearings.

She also would be the third Jewish member of the court.

Democrats lauded the pick.

"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's running for the Senate, said in a statement.

Republicans promised a fair hearing.

"Now that the president has nominated Elena Kagan to replace Justice Stevens, the Senate must thoroughly and fairly evaluate her qualifications to be a Supreme Court Justice," said Sen. Orrin Hatch of Utah, the senior Republican on the Senate Judiciary Committee.

"I will examine Ms. Kagan's entire record to understand her judicial philosophy," he said. "My conclusion will be based on evidence, not blind faith. Her previous confirmation, and my support for her in that position, do not by themselves establish either her qualifications for the Supreme Court or my obligation to support her. I have an open mind and look forward to actively participating in the confirmation process."

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 has no judicial record for critics to parse. She's been on record as supportive of indefinite detention for terrorism suspects, which could appease many Republicans.

If timing is everything, though, 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 Kagan 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 before 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, which prohibits openly gay people from 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'd replace Stevens, a Northwestern Law graduate and the only remaining member of the court who wasn't trained at Harvard or Yale Law. Although Ginsburg finished law school at Columbia, another Ivy League school, two-thirds of her training was 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 close White House ties.

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

She was one of four names on Obama's final list, along with three appeals court judges: Merrick Garland of Washington, D.C., Sidney Thomas of Billings, Mont., and Diane Wood of Chicago.

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