President Obama on Monday nominated Elena Kagan, the U.S. solicitor general and a former dean of Harvard Law School, to serve on the Supreme Court, ending weeks of speculation about who would replace Justice John Paul Stevens, who is retiring. Her confirmation rests with the U.S. Senate, where Republican critics are expected to home in on a position she took on military recruiting on college campuses five years ago.
In 2005, Ms. Kagan, along with several dozen other Harvard law professors, signed a friend-of-the-court brief urging the Supreme Court to uphold a lower-court ruling that overturned the Solomon amendment, a 1994 law that allows the federal government to withhold funds from colleges that bar or limit military recruiting on their campuses.
The brief argued that law schools that refused to allow recruiters on the campus were treating military recruiters the same as any other employer that discriminated on the basis of sexual orientation. The brief did not contend that the law was unconstitutional, and Ms. Kagan has said she does not believe the U.S. Constitution confers a right to same-sex marriage, but conservative activists see Ms. Kagan's support for the brief as a sign that, if confirmed by the Senate, she would advance same-sex marriage from the bench.
Senate Republicans are also expected to make an issue out of the fact that Ms. Kagan, who has never been a judge, has spent much of her career in academe, seeking to paint her as an ivory-tower liberal. The Senate minority leader, Mitch McConnell of Kentucky, said on Monday that Republicans would question Ms. Kagan's "brief litigation experience, as well as judgment and her career in academia."
Anticipating those attacks, President Obama went on the offensive, citing Ms. Kagan's years as law dean at Harvard and describing her as a "consensus builder" who has "sought to recruit prominent conservative scholars and spur a healthy debate on campus."
"While Elena had a brilliant career in academia," he added, "her passion for the law is anything but academic."