PRESIDENT BARACK Obama has nominated a woman to the Supreme Court for the second time in a year. She is Elena Kagan, who for much of the past year has served as his solicitor general – the chief legal advocate for the Obama administration.
Standing beside Ms Kagan in the East Room of the White House yesterday morning to announce her nomination, the US president called her a trailblazer who was the first woman dean of Harvard Law School, and the first woman solicitor general.
Ms Kagan’s nomination brings the number of women on the Supreme Court to an unprecedented three out of nine justices. Sonia Sotomayor, who was nominated by Mr Obama last year, and Ruth Bader Ginsburg, who was appointed by President Bill Clinton, are the other two. Ms Kagan is only the fourth woman to reach the Supreme Court.
Mr Obama did not mention the chief criticism levelled against Ms Kagan: that she has never served as a judge. Until the 1970s, it was not uncommon for Supreme Court justices to be chosen from other professions, but Kagan’s nomination marks the first time since 1978 that a non-judge has been elevated to the nation’s highest court.
The White House anticipates a fight in confirmation hearings this summer, but believes Ms Kagan will be confirmed in time to take up the seat of retiring Justice John Paul Stevens in the autumn. Justice Stevens has led the liberal wing of the Court. Mr Obama called him “a consistent voice of reason” and “an impartial guardian of the law, faithfully applying the core values of our founding to the cases and controversies of our time”.
Justice Stevens understood “that a judge’s job is to interpret, not make law”, Mr Obama said. In her confirmation hearings for solicitor general last year, Ms Kagan said that job did not require her to have opinions, only to defend federal law and the policies of the Obama administration.
Ms Kagan holds law degrees from Princeton, Oxford and Harvard. She has served in all three branches of government. In 1987-88 she clerked for Chief Justice Thurgood Marshall, the icon of civil rights. She was a policy adviser to President Clinton, and worked for Vice President Joe Biden when he was a senator.
It is somewhat unfair for Republicans to reproach Ms Kagan for her lack of experience on the bench, because Mr Clinton chose her for a seat on the US Court of Appeals for the District of Columbia in 1999. But Senate Republicans blocked her nomination until he left office, and President George W Bush appointed the current Chief Justice, the conservative Irish-American John Roberts, in her stead.
As solicitor general, Ms Kagan pleaded six cases before the Supreme Court. Her relationship with Chief Justice Roberts and his closest conservative ally, Justice Antonin Scalia, has sometimes been tense, particularly in the case of “Citizens United versus Federal Election Commission”. The Obama administration lost that case when the Court voted 5 to 4 that limits on corporate campaign contributions were a violation of freedom of speech.
Like Mr Obama, Ms Kagan has a reputation for listening to all points of view before she makes up her mind, and for reaching across ideological lines. At Harvard, she annoyed some liberal colleagues by hiring conservative law professors.
Mr Obama praised her “openness to a broad array of viewpoints” and said she has made a habit of Justice Stevens’s motto “of understanding before disagreeing.”
At age 50, she will be the youngest Supreme Court justice. Her age is an important consideration because it means she has a chance of staying on the court for decades. She will be required to recuse herself on subjects which she has tackled as solicitor general, but her support will be crucial to Mr Obama when cases involving healthcare reform and financial regulation reach the court.
Ms Kagan’s nomination does not alter the ideological composition of the court, which will remain four liberals and four conservatives with the right-leaning Justice Anthony Kennedy usually providing the swing vote.
But for the first time in the history of the court, the country’s dominant religion – Protestantism – will not be represented. The outgoing Justice Stevens, who is retiring at the age of 90, is Protestant. There are six Catholic justices, and Ms Kagan’s nomination brings the number of Jews on the Court to three.