Today, President Obama nominated Elena Kagan to replace retiring Supreme Court Justice John Stevens who will step down later this year. According to the official website of the White House, Kagan is the first woman to serve as solicitor general of the United States. The solicitor represents the federal government in front of the Supreme Court.
The Washington Post has some more background information on Kagan who served as a clerk to Thurgood Marshall. Kagan was also the first female dean of Harvard Law School which also happens to be the same institution from where Obama holds his law degree.
It seems to me that President Obama may actually be playing favorites here. I was surprised that the president didn’t choose a nominee with more experience actually sitting as a judge. That may be a disadvantage as her opponents may criticize her lack of judicial experience.
On the other hand, having a fresh face to the justice system may be what Obama had in mind. When Justice Sotomayor was nominated her extensive background as a judge helped ease the minds of many Republicans who felt like she may have made missteps with her “wise Latina” comments. This time, Kagan won’t have much to stand on if someone asks her how long she’s actually served as a judge in the court system.
Elena Kagan does know how the Supreme Court works and will certainly be able to get along with her fellow justices should she ascend to the bench. Having served in many different capacities for the Supreme Court will certainly give her an inside track to lay out her knowledge of what it takes to be a Justice.
Perhaps a better choice would have been Justice Diane Wood, who is an appellate judge from Chicago. She has been a federal judge since 1995 when she was appointed by Bill Clinton. Ironically, Kagan was appointed by Clinton as a Federal court judge but never received her confirmation hearing as the Republican-led Senate stalled her day in Congress.
If I were a senator on the Justice Committee, I would certainly question Kagan’s approach to being a judge since she’s never actually held that title. Another question to ask would be how she would respond to a groundbreaking case should her vote be the deciding factor with some issue such as abortion, gay rights, or some other hot-button issue. I might also ask her how it would feel to be only the fourth woman to serve as a Supreme Court Justice.
Much like being a solicitor general, Kagan’s answers will be well-rehearsed and practiced. She will draw on her experience with the Court in general to answer any doubts on her abilities. As far as a hot topic to ask, she will say something like “it depends on the case brought before the Court.” Querying a nominee about abortion would simply be a tactic to get fellow Republicans riled up about her. As for serving as a woman on the Court, Kagan hopefully will respond with a somewhat profound statement about loving being on the cusp of change in this modern era and make references to her time serving Thurgood Marshall.
The White House and the Washington Post were my sources for this article.