Supreme Court Selection

GW law professor discusses Obama’s nominee to the nation’s high court.

Elena Kagan
May 11, 2010

Earlier this week, President Barack Obama nominated Solicitor General Elena Kagan as the 112th justice of the Supreme Court. If confirmed by the Senate, Ms. Kagan will be the fourth woman in history to serve on the high court. At age 50, she’ll be the youngest member on the current court.

Before becoming solicitor general, Ms. Kagan was the first woman to serve as dean of Harvard Law School. She earned degrees from Princeton, Oxford and Harvard Law School. She’s also clerked for Justice Thurgood Marshall, worked as a Senate staff member and served as a White House lawyer and domestic policy aide under President Bill Clinton. However, she has no judicial experience.

Jeffrey Rosen, a GW Law School professor, sat down with GW Today to discuss Ms. Kagan’s nomination. An expert on the high court, Mr. Rosen is the author of “The Supreme Court: The Personalities and Rivalries That Defined America.”

Q: Every other member of the court is a former judge. Why do you think President Obama chose Ms. Kagan if she has no prior judicial experience? Do you think that will be a hindrance during her Senate confirmation hearings?
A: President Obama chose Elena Kagan because she shares his vision of liberal judicial restraint—mainly the view that judges should be hesitant to strike down laws and that political change should come primarily from the president and Congress, not from the courts. Her lack of judicial experience may be an issue in her confirmation hearings, but her defenders will point to Chief Justice William Rehnquist and Justice Louis Powell, both of whom were confirmed in 1971 without having served as judges. In the end, the lack of a paper trail will probably help her.

Q: Is she considered liberal, moderate or conservative? How would she influence the court’s rulings?
A: Ms. Kagan is considered a moderate. As President Obama said when he nominated her, she is known for “her openness to a broad array of viewpoints, her habit of understanding before disagreeing, her fair-mindedness and skill as a consensus-builder.” President Obama seems to hope that these qualities will help Ms. Kagan achieve consensus on the Supreme Court by winning over the swing justice, Anthony Kennedy, to the center.

Q: What is Ms. Kagan’s professional reputation?
A: Ms. Kagan is known for the qualities President Obama identified: her ability to empathize with her ideological opponents and respect their point of view. I first met Ms. Kagan in the mid-1990s and we are both former law clerks for Judge Abner Mikva on the D.C. Circuit. I’ve been impressed by her ability to challenge and persuade people of different points of view. She is also thoughtful, unpretentious and funny.

Q: How would her appointment change the dynamic of the court? Everyone will be either Catholic or Jewish. For the first time in history, there will be no Protestants.
A: If she can win over Justice Kennedy, the court might move a bit to the center. If she can’t, it won’t change much at all. As for religion, nowadays it matters less than race and gender, but it’s a little alarming that all of the justices studied at either Harvard or Yale!

Q: If Ms. Kagan is confirmed, this will be the first time in history there will be three women justices on the court. How might this affect the nature of the court’s rulings?
A: The fact that there will be three women on the court may not affect the nature of the court’s rulings in most cases. Still, Justice Ginsburg’s sensitive questions in the case involving the strip search of a female high school student who was suspected of possessing a painkiller suggested that gender does matter in some cases, since judges invariably draw on their personal experiences and backgrounds.

Q: If confirmed, Ms. Kagan would be the youngest member on the court at age 50. What is the significance of Ms. Kagan's relatively young age?
A: She’ll be on the court for a long time!

Q: Is Ms. Kagan expected to be a consistent supporter of Obama's agenda?
A: Ms. Kagan is expected generally to oppose efforts by activist conservative judges to strike down the centerpiece of Obama’s domestic agenda: health care reform and economic regulations. As a scholar, Ms. Kagan argued that the president should be able to use federal administrative agencies to pursue a progressive policy agenda, unless Congress says otherwise. Ms. Kagan is also expected to be sympathetic to the Obama administration’s position in national security cases—upholding, for example, the Obama administration’s proposal to limit Miranda rights to suspected terrorists.

Q: Do you think it will be an easy or difficult confirmation process?
A: There will be vigorous challenges to Ms. Kagan’s centrist record from enforcers of ideological purity on the left and the right sides, but in the end, everyone expects her to be confirmed.

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