• August 27, 2015

Obama Nominates Elena Kagan, Former Dean of Harvard Law, to Seat on Supreme Court

Elena Kagan

Jim Watson, AFP, Getty Images

President Obama nominates Solicitor General Elena Kagan to the Supreme Court during an event in the East Room of the White House on Monday.

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Jim Watson, AFP, Getty Images

President Obama nominates Solicitor General Elena Kagan to the Supreme Court during an event in the East Room of the White House on Monday.

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."


1. luigi - May 10, 2010 at 06:37 pm

Lots of Justices had little or no judicial experience before serving on the Supreme Court. Chief Justice Roberts had less than two years on a Circuit Court. A few of the other Justices who had no judicial experience include Hugo Black, William Douglas, Earl Warren, Arthur Goldberg, Felix Frankfurter--the list goes on. In the mid 1980s, Sen. Orin Hatch was vying for a place on the Court. It is a good idea to have some members of the Court who will see the law through other prisms than the judicial one.

2. jacky23456 - May 11, 2010 at 05:14 am

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3. lexpert - May 11, 2010 at 05:56 pm

We were told that Sotomayor had more judicial and litigation experience than other justices and should be confirmed based on that; now we're told that the lack of it for Kagan is a plus.....you can't have it both ways. Even Kagan wrote in 1995 article on Supreme Court process that justices should have judicial experience, so she doesn't meet her own standard.
At least Rehnquist had 16 years of private law practice before joining the Dept of Justice before he was nominated. Kagan has for the most part was in the ivory-tower of academia, and even in that realm, her scholarly writings are very slim compared to her colleagues.

As for her legal acumen, she recently admitted at a legal conference that she didn't know Thornhill v. Alabama, a major First Amendment case, when asked by Justice Stevens during oral argument.....a decision even many law students know, and one that she should know since the First Amendment is allegedly her expertise.

In short, she may be a good administrator, but not the best qualified to be on the High Court.

4. blueconcrete - May 11, 2010 at 09:37 pm

Did Kagan actually have a brilliant career in academia... ? I ask this question in relative ignorance of the legal profession and law departments, but from what I've read, she isn't that much of a legal scholar. She apparently managed to get tenure at the University of Chicago after having authored just one scholarly article and one essay (both published in journals affiliated with that institution). And she hasn't written much more since. I mean, correct me if I'm wrong in using published articles as the basis for evaluation of one's credentials as a legal scholar, but I'd kill for a TT job at ANY university for that price. And I certainly wouldn't call myself an expert...

5. fergbutt - May 12, 2010 at 04:50 am

Harriet Myers redux without the sexual-identity politics

6. honore - May 12, 2010 at 10:03 am

blueconcrete, now do be careful not to upset the Obama publicity steam roller with inconveniences like the facts...more "change we can believe in" no doubt with all attendant politically correct LGBT bones thrown before the drones.

7. 11134193 - May 12, 2010 at 11:28 am

111 34 193

Elena Kagan's nomination to The Supreme Court is just one of numerous changes that Mr. Obama promised. If you voted for him because he stood for, and promised change: Change is what he is delivering. How many of my colleagues were thrilled by the promise of CHANGE - and failed to request the specifics of the intended CHANGE. Like or not, CHANGE IS WHAT WE ARE ALL GETTING on almost a daily basis. Be careful what you wish for! In New Jersey, we educators got fooled twice! We recently got a Governor who promised significant CHANGE and he is in the process of dismantling higher education, teacher pensions, teacher salaries, K-12 public education etal. In New Jersey we are becoming experts on CHANGE!

8. phikaw - May 16, 2010 at 07:56 pm

Presumably the value of change depends on what the change is. It was pretty clear what kind of change the current NJ governor was going to initiate when he was a candidate, so I'm not sure how 111 34 193 was fooled. Ditto, with Obama. He's never been a radical, nearly all of his decisions include a calculation of what is politically feasible, and while it's true that he didn't provide a lot of specifics during the election, presumably if that was of concern to someone, then that should have made that person uneasy, instead of now "fooled". But, as far as supreme court justices go, no one would be specific during an election. Can't fault Obama for that. And, every nominee is a specific person, with specific talents. Perhaps the point is not to look for consistency between nominees, but whether the strengths of the candidate will bring something worthwhile to the Court (in spite of whatever weaknesses any candidate will inevitably have).

9. new_theologian - May 17, 2010 at 12:46 am

For the most part, I agree with phikaw's comment #8, except that it seems obvious to me that Obama is a radical. But I suppose it depends what we mean by the term. In any event, I do acknowledge his point that Obama does not just "react"--if that is something we associate with being a radical, then I suppose he is not a radical, but I don't see how that's really part of the definition.

So, if we'd been paying attention, we would have known what to expect of Obama. Many people were paying attention, but many weren't, and now find themselves wondering where all this "change" is coming from. I see Obama behaving exactly as I expected him to behave. I have yet to be surprised by anything but the poll numbers, which, inexplicably, show Obama's approval ratings generally higher than his disapproval ratings, even as the disapproval ratings for his policies are generally higher than the approval ratings for his policies. That's just not rational. Think what you will about his policies, but for cryin' out loud, be consistent!

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