President Barack Obama has chosen his solicitor general, Elena Kagan, to be the next Associate Supreme Court Justice, replacing retiring John Paul Stevens. Elena Kagan was dean of the Harvard Law School previous to her current appointment.
Elena Kagan has no judicial experience and has not argued many cases. But so far Kagan is getting a different reception than that of Harriet Miers, a White House counsel whom President George W. Bush nominated to the high court but eventually had to withdraw due to her lack of experience. Elena Kagan’s lack of judicial experience is being touted as a virtue, that her career as an academic would serve as a different perspective for the Supreme Court, generally made up of former lower court judges.
Elena Kagan’s not being a judge also means that there is not a long paper trail on her, with opinions that can be picked apart and used to rough her up during the confirmation hearings.
Elena Kagan does have a little bit of controversy to her name, one that caused over 30 Republicans to vote against her confirmation as Solicitor General. Kagan, while dean of the Harvard Law School, filed a friend of the court brief to the Supreme Court arguing against a law that forced institutions of higher learning that accept federal funding to accept military recruiters. Kagan supported a ban on military recruiters as a protest against the “don’t ask, don’t tell” policy on gay servicemen in the military. The Supreme Court ultimately and unanimously voted to uphold the law, against Elena Kagan’s objections.
While Republican senators vow to vigorously question Kagan’s views on various judicial issues, it is unlikely that they will get very much information, considering the reluctance to previous Supreme Court nominees to articulate opinions on matters that might come before the Supreme Court. Elena Kagan is expected to be confirmed, absent some unforeseen revelation, by a comfortable margin.
Oddly enough, the Kagan nomination is already having an effect on the Pennsylvania Senate primary where Sen. Arlen Specter, a former Republican who recently turned his coat to Democrat, is fighting for his seat against Rep. Joe Sestak. Sestak is attacking Specter for his vote against Elena Kagan’s appointment to be solicitor general. Specter said at the time that he voted against Kagan for her unwillingness to be forthcoming about her legal philosophy. If Elena Kagan continued to dodge those kind of questions during her Supreme Court nomination hearings, that might have a bearing on Sen. Specter’s vote as well.
Sources: Kagan, Though Inexperienced in Court, Is No Harriet Miers, Supporters Say, Fox News, May 10th, 2010
Kagan Nomination Adds Fuel to Dems’ Fight in PA Senate Race, Fox News, May 10th, 2010