Washington (CNN) — President Obama took a key step in cementing his judicial legacy Monday, nominating Solicitor General Elena Kagan to replace retiring Justice John Paul Stevens on the Supreme Court.
If confirmed, the 50-year-old Kagan will become the 112th Supreme Court justice. She would be the third woman on the nine-member bench and the fourth in the history of the court.
She served as a law clerk for federal judge Abner Mikva and then for Justice Thurgood Marshall on the high court. Marshall affectionately called the diminutive Kagan “Shorty.”
From The Dallas Morning News:
WASHINGTON – Texas Sen. John Cornyn sharply criticized Supreme Court nominee Solicitor General Elena Kagan today — hinting strongly that her lack of judicial experience, privileged background and role in Harvard’s efforts to bar military recruiters make it unlikely he will support her confirmation.
“The president says he wants to appoint somebody who will understand how the court’s decisions will impact regular people,” said Cornyn, a Republican who sits on the Judiciary Committee that will first consider Kagan’s nomination. “I don’t see how Ms. Kagan meets the president’s own standard. Her lack of experience as a practicing lawyer and a practicing judge are things that do not argue in her favor.”
Kagan is the administration’s top appellate attorney, and was the first female dean of the Harvard Law School. She has never served as a judge and had never argued a case before the Supreme Court before President Barack Obama tapped her last year as solicitor general.
Cornyn said Monday that a lack of judicial experience doesn’t automatically disqualify a person from serving on the Supreme Court. But his dwelling on the issue stands in contrast to his comments when President George W. Bush selected his former aide, Harriet Miers, for a court seat in 2005. Miers had also never been a judge, but Cornyn wrote a column in The Dallas Morning News that extolled Miers’ credentials – including her lack of judicial experience.
“Although she has no prior judicial experience, this was true for nearly 40 percent of the men and women who have served as Supreme Court justices,” he wrote of Miers, whose nomination was ultimately withdrawn amid stiff political opposition. “Indeed, rather than make her nomination less desirable, many of us believe that her long career in private practice will be to her credit.”
Cornyn, who also heads the GOP’s Senate campaign committee, voted against Kagan’s confirmation as solicitor general in March 2009.
He suggested that she wouldn’t be able to relate to regular Americans, because she comes from the “rarified atmosphere” of Harvard, where she earned her law degree, and the University of Chicago, where she previously was a professor.
“Ms. Kagan has spent her entire professional career in Harvard Square, Hyde Park, and the DC Beltway. These are not places where one learns how ordinary people live,” he said.
Cornyn took special exception to Kagan’s support of a lawsuit that would have barred military recruiters from Harvard’s campus because of concerns about the “Don’t Ask, Don’t Tell” policy toward gays in uniform. Cornyn deemed that as a “lack of respect” to the military.
Along with Cornyn, fellow Texan Kay Bailey Hutchison and 29 other senators opposed Kagan’s confirmation as solicitor general.
Hutchison, who is not a member of the Judiciary Committee, said in a brief statement that she also had concerns about Kagan’s lack of judicial experience and her stance on the military recruiters on Harvard’s campus.
From TALKING POINTS MEMO:
Of the handful of Supreme Court hopefuls said to be on President Obama’s short list, Elena Kagan was thought by the administration to be one of the safer picks: much less outspoken ideologically, and able throughout her career to swim among conservatives and liberals alike. That reasoning may have paid off on day one: GOP senators have been congratulatory, and in some cases positive, about her nomination. But, as is common for the minority during Supreme Court fights, they are leaving themselves plenty of room to revisit their position, if and when they decide to turn the debate over the nomination into a full-bore political fight.
Take for instance Republican Whip Jon Kyl, who cast doubt on the likelihood that Republicans will obstruct Kagan’s confirmation, telling reporters this afternoon, “there won’t be a Republican position. It’s hard for me to see–though we have to look at all her record–that there would be grounds for filibustering her nomination.”
Without endorsing her, Sen. Olympia Snowe (R-ME) called Kagan a ‘strong candidate.
And Sen. Lindsey Graham (R-SC), who has been praising Kagan to reporters for weeks, also issued a positive statement.
But that’s just one side of the coin. Just after downplaying the possibility of a filibuster, Kyl listed a series of bones the GOP will pick with her. “Different members will have different views about the importance of her position on military recruiting, about the relative lack of experience, and about information we don’t yet have relative to her service in the Clinton administration,” he said.
Senate Republican Leader Mitch McConnell went further still, telling ABC News, “It’s way too early to be making a decision about the issue of whether there should be a 60 vote threshold on the nominee.”
For the uninitiated, this is a common opening move–the King’s Pawn of Supreme Court fights. It gives Republicans the flexibility to decide in the days and weeks ahead whether they want to throw everything in their arsenal at her, or to allow for a relatively smooth confirmation process.
The fact of the matter is, Kagan is overwhelmingly likely to be confirmed in the end. Thus far, only one senator–James Inhofe (R-OK)–has announced his opposition.
But Republicans understand the political value in drawing out a Supreme Court fight, even when the nominee isn’t overwhelmingly objectionable to them. And perhaps the most telling sign of where Republicans plan to take this fight comes from Sen. Jeff Sessions (R-AL), the ranking member on the Judiciary Committee where Kagan will have her first hearing. Sessions raised a series of objections to Kagan, calling her lack of judicial experience “troubling,” and in an appearance on CNN earlier today, he called her opposition to allowing the military to recruit on the Harvard campus “unacceptable.”