WASHINGTON — President Barack Obama on Monday hailed his nominee to the Supreme Court as “one of the nation’s foremost legal minds,” but Elena Kagan’s biggest asset in coming confirmation hearings may be her lack of an extensive public record, providing few openings for Republicans to attack.
A year after making Kagan his administration’s advocate before the Supreme Court, Obama now hopes her personal skills are good enough to craft consensus with the court’s conservative majority — and to win Senate confirmation to the position in the first place.
“She is a trailblazing leader, the first woman to serve as dean of Harvard Law School,” the president said as he made his announcement in the ceremonial East Room of the White House. “Elena is respected and admired not just for her intellect and record of achievement, but also her temperament, her openness to a broad array of viewpoints and skill as a consensus builder.”
GOP leaders were quick to criticize her as an out-of-touch elitist, someone who has “spent her entire professional career in Harvard Square, Hyde Park and the D.C. Beltway,” as Sen. John Cornyn, a Texas Republican, put it.
But Republicans stopped well short of declaring war on the nomination, with one GOP lawmaker telling reporters Monday that, given what they know about Kagan now, they consider a filibuster unlikely.
With 59 Democrats in the Senate, Kagan, a single woman from Manhattan’s Upper West Side, should have little trouble being confirmed this summer, barring a major surprise. She would be the third woman on the current high court, but the first justice in nearly four decades who never has been a judge.
She also has the advantage to Obama of being relatively young. At 50, she could carry out his legacy on the court for decades.
Kagan has been on the inside track in Democratic legal circles for two decades. As Cornyn pointed out, her career has centered on three places: the University of Chicago Law School, the Clinton White House and the Harvard Law School. It was a fortunate combination, since it gave her a chance to get to know nearly everyone who counts in the inner legal circles of the Obama White House, including the president himself, who also was a young law professor at Chicago in the early 1990s.
Ironically blocked from becoming a federal judge by Senate Republicans in 1999, she instead went on to became dean of the Harvard Law School in 2003 and won glowing praise for reviving the school and its public spirit.
Kagan, who never has argued a case before the Supreme Court before Obama made her solicitor general last year, paid homage to it in her statement Monday.
“I have felt blessed to represent the United States before the Supreme Court, to walk into the highest court in this country when it is deciding its most important cases, cases that have an impact on so many people’s lives,” Kagan said. “And to represent the United States there is the most thrilling and the most humbling task a lawyer can perform.”
Friends describe Kagan as the kind of calm, thoughtful and brilliant person who always seemed perfectly suited to being a judge.
“She is in the super-smart league, but she is also a good listener who can talk to people across the ideological divide,” said Carol Steiker, a Harvard law professor who was a clerk with Kagan at the Supreme Court.
But as Kagan ventures to the Hill to start calling on lawmakers this week, she’ll face a more skeptical audience. She was confirmed by a vote of 61-31 to become solicitor general last year, with seven Republicans supporting her, but those senators say that doesn’t mean they will back her again.
One obstacle the White House expects is the complaint that Kagan hasn’t spent much time in a courtroom before the past year, and another is that she has not published extensively. After writing one somewhat incendiary article in 1995, in which she faulted senators for not pressing Supreme Court nominees to reveal their views on major issues. There were few scholarly articles afterward.
Ironically, that may actually prove helpful to her in her hearings. When lawmakers go looking for documents that reflect Kagan’s work of the past three decades, they’ll get collections similar to those that have been floating around the White House of late — thin by comparison to those of the three judges who were under serious consideration — with little for critics to pick apart.
What Kagan offers instead is a professional narrative backed up mostly by personal accounts of those who have worked with her over the years. A high watermark of her tenure at Harvard came when she got a standing ovation from members of the conservative Federalist Society meeting on campus.
“Elena is someone who has done a superb job her entire career of bringing people together, of listening before deciding,” said Ron Klain, a former Kagan classmate who, as chief of staff to Vice President Joe Biden, was involved in the search for a nominee. “That has been one of her great assets.”
But Kagan took at least one stand at Harvard that did not sit well with conservatives, and is cause for particular concern among some conservatives now. When she took over as dean, she kept in place a standing policy against full school cooperation with military recruiters on campus. The policy was in place because the military’s “don’t ask, don’t tell” policy governing gays and lesbians in the armed forces violated the school’s anti-discrimination policy.
“Millions of Americans will be outraged when they learn that Obama has picked a Supreme Court nominee with a demonstrated hostility to the very armed forces that make our freedom and constitutional rights possible,” said Curt Levey, executive director of the conservative Committee for Justice.
In response, administration officials say Kagan did not draft the policy, that it was in place before she took over as dean. Military representatives still were allowed to recruit students at the school, Klain said, they just didn’t have help from the law school’s career services office.
“The idea that she is somehow anti-military is ridiculous and absurd,” said Klain. She was the first dean to host veterans at her home, he said, and she sought out chances to address veterans and encouraged students seeking military careers.
In announcing Kagan’s nomination, Obama said that, as solicitor general, Kagan has shown a concern for average people.
“She has repeatedly defended the rights of shareholders and ordinary citizens against unscrupulous corporations,” Obama said. “I think that says a great deal not just about Elena’s tenacity, but about her commitment to serving the American people.”