Obama set to name Elena Kagan to Supreme Court

President Obama has apparently made his choice to fill the Supreme Court seat left open by the retirement of Justice John Paul Stevens. Elena Kagan, former dean of Harvard Law, will be introduced as Obama’s nominee later today.

Says The Washington Post:

“By all accounts, Obama wants someone who can serve as a counterweight to the intellectual heft of Chief Justice John Roberts. Regardless of how strong a liberal Kagan would prove to be, as a former dean of Harvard Law School, Kagan practically defines legal gravitas.

She’s also a female, which adds to the court’s gender diversity. She’s young, at 50, which means she could be on the court for a quarter century. And she’s never been a judge, which gives her a quality that Obama is known to have been seeking: someone to bring a different sensibility to a court that’s currently dominated by judges.”

Kagan, named solicitor general by Obama, has never served as a judge. She was nominated to the appellate bench by President Clinton in 1999, but Senate Republicans who controlled that chamber never brought her name up for a committee hearing, let alone a floor vote.

The New York Times, in a profile, described her this way:

“She was a creature of Manhattan’s liberal, intellectual Upper West Side — a smart, witty girl who was bold enough at 13 to challenge her family’s rabbi over her bat mitzvah, cocky (or perhaps prescient) enough at 17 to pose for her high school yearbook in a judge’s robe with a gavel and a quotation from Felix Frankfurter, the Supreme Court justice, underneath.

She was the razor-sharp newspaper editor and history major at Princeton who examined American socialism, and the Supreme Court clerk for a legal giant, Thurgood Marshall, who nicknamed her “Shorty.” She was the reformed teenage smoker who confessed to the occasional cigar as she fought Big Tobacco for the Clinton administration, and the literature lover who reread Jane Austen’s “Pride and Prejudice” every year.

She was the opera-loving, poker-playing, glass-ceiling-shattering first woman to be dean of Harvard Law School, where she reached out to conservatives (she once held a dinner to honor Supreme Court Justice Antonin Scalia) and healed bitter rifts on the faculty with gestures as simple as offering professors free lunch, just to get them talking.”

And here’s a little Limbaugh bait that the Great White One surely won’t be able to turn down.

“As a history major (at Princeton), Ms. Kagan was reflective and thoughtful, said Prof. Sean Wilentz, her senior thesis adviser, who guided her on an exploration of the history of American radicalism.

She titled the thesis “To the Final Conflict: Socialism in New York City, 1900-1933,” and used the acknowledgments to thank her brother Marc, whose “involvement in radical causes,” she wrote, “led me to explore the history of American radicalism in the hope of clarifying my own political ideas.”

In 153 pages, the paper examines why, despite the rise of the labor movement, the Socialist Party lost political traction in the United States — a loss that she attributed to fissures and feuding within the movement. “The story is a sad but also a chastening one for those who, more than half a century after socialism’s decline, still wish to change America,” she wrote.

If that sounds like a defense of socialism, Mr. Wilentz insists that is not the case.

“She was interested in it,” he said. “To study something is not to endorse it.”

So how will Republicans respond this time? With just 41 votes, they no longer control the Senate. At least not directly. However, a unified GOP effort could at least make things difficult, and a whole industry has taken shape in Washington designed to raise and spend money — with a little skimmed off the top, of course — to generate opposition to major court nominees. It’s also an election year, and Supreme Court nominations always offer a tempting opportunity to whip the base into a frenzy.

Here’s how Politico handicaps it:

“A wide array of conservative lawyers backed Kagan for solicitor general, including (Ken) Starr, the former independent counsel who investigated Bill Clinton; Olson, Bush’s solicitor general, along with Bush White House lawyer Brad Berenson. Most cited determined efforts she made to bring conservative faculty to Harvard Law and to make sure that conservative legal groups such as the Federalist Society felt welcome on campus.

However, Kagan’s outreach to conservatives was so concerted that it has underscored concerns that she would not be the liberal firebrand on the court that some of Obama’s supporters had hoped for. While those concerns are expected to temper some liberal groups’ enthusiasm about her nomination, no major organizations on the left are likely to oppose her and most expect her to easily win majority support in the Senate.

“She’s very smart and very thoughtful, really wanting to hear all sides of things and wanting to understand what the other side thought,” said Richard Socarides, an attorney who served as the Clinton administration’s liaison to the gay community. “I always found her very progressive,” he said.

While conservatives may find Kagan more palatable than some other possibilities for the high court, that may not translate into substantial GOP support in the Senate, particularly in an election year. In the 61-to-31 vote last March on her confirmation as solicitor general, Kagan won the support of only seven Republicans. One Republican vote against her confirmation came from Senator Arlen Specter of Pennsylvania, who joined the Democratic Party a few weeks later. He complained that she had been unduly evasive in answering questions from the Judiciary Committee….

Given the higher stakes of a Supreme Court nomination, it seems doubtful Kagan will be able to hold all the Republican votes she won last year. Obama also considered Kagan for his first Supreme Court vacancy, but ultimately nominated 2nd Circuit Appeals Court Judge Sonia Sotomayor, who won 68 votes in the Senate.”