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Kagan praised by Obama for hiring conservatives at Harvard

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By ABDON M. PALLASCH and LYNN SWEET
Chicago Sun-Times

President Obama nominated Solicitor General Elena Kagan this morning for the Supreme Court vacancy being created by the retirement of Chicagoan John Paul Stevens.

Obama said Kagan would be the same "impartial guardian of the law" that Stevens has been over his 35-year career.

"Elena is widely regarded as one of the nation's foremost legal minds," Obama said.

The selection of Kagan, an unknown figure to much of America, came after nearly a monthlong process of consideration, though she was really in the before that, as a runner-up last year for the seat that went to Justice Sotomayor.

The president informed Kagan that she would a Supreme Court nominee on Sunday night. He then called the three federal judges he did not choose for the position, Diane Wood, Merrick Garland and Sidney Thomas.

Obama noted that, as dean at Harvard Law School "at a time when many believed that Harvard faculty had gotten a little one-sided in its viewpoint," Kagan recruited conservative scholars to join the faculty and tried to be a bridge over the ideological divide.

By ABDON M. PALLASCH and LYNN SWEET
Chicago Sun-Times

President Obama nominated Solicitor General Elena Kagan this morning for the Supreme Court vacancy being created by the retirement of Chicagoan John Paul Stevens.

Obama said Kagan would be the same "impartial guardian of the law" that Stevens has been over his 35-year career.

"Elena is widely regarded as one of the nation's foremost legal minds," Obama said.

The selection of Kagan, an unknown figure to much of America, came after nearly a monthlong process of consideration, though she was really in the before that, as a runner-up last year for the seat that went to Justice Sotomayor.

The president informed Kagan that she would a Supreme Court nominee on Sunday night. He then called the three federal judges he did not choose for the position, Diane Wood, Merrick Garland and Sidney Thomas.

Obama noted that, as dean at Harvard Law School "at a time when many believed that Harvard faculty had gotten a little one-sided in its viewpoint," Kagan recruited conservative scholars to join the faculty and tried to be a bridge over the ideological divide.

Kagan's decision as dean at Harvard not to allow military recruiters on campus over the don't-ask-don't-tell policy on gays in the military has drawn conservative scorn.

But some liberals say her lack of a paper trail -- she would be the first new justice in decades who hadn't previously served as a judge -- means she might be too conservative when it comes to allowing the president strong powers.

Former federal appellate judge Abner Mikva, whom Kagan clerked for and who brought Kagan to the Clinton White House as a deputy general counsel, watched with pride from Chicago as Obama introduced Kagan. He waved off the concerns about her.

"If the president appointed Moses, Muhammad and Jesus Christ all rolled into one, the critics would still come out," Mikva said. "Unfortunately, the Senate can be so contentious. They remind me of the Harvard Law faculty, but she brought them together."

Kagan's position as solicitor general -- the federal government's chief lawyer -- representing the U.S. government and defending acts of Congress before the Supreme Court and deciding when to appeal lower court rulings over the past year might make her appear to be an advocate of strong presidential powers, but Mikva said that's not Kagan's orientation.

"We were teaching seminars on executive privilege at the same time -- I was teaching here in Chicago, and she was teaching at Harvard -- and I was using her notes," said Mikva. "She had a very broad understanding of the interaction between the three branches. She knows Congress is the first branch not by accident. They are the lawmakers, and the president is not supposed to supplant that. I think her views are very, very mainstream."

Kagan said she looks foreward to working with the Senate through the confirmation process. She also gave a shout-out to Mikva, whom she said "represents the best in public service."

If Kagan is confirmed, the Supreme Court would, for the first time, include three women, as well as and three Jewish justices -- Kagan, Ruth Bader Ginsburg and Stephen Breyer.

There is some symmetry in that Stevens was a University of Chicago graduate and Kagan and Obama both taught at the law school there together. In addition to Mikva, Kagan clerked for former Supreme Court Justice Thurgood Marshall, whom Obama noted called her "Shorty."

Kagan was considered one of the safest bets for Obama because she hasn't been a judge, so she hasn't authored any controversial opinions.

"Her scholarship was mostly in the area of first amendment, free speech issues" at the University of Chicago, said Geoffrey Stone, who was dean of the school when she and Obama taught there in the 1990s. "She's not someone driven by ideology. She's driven by curiosity. More than anything, she is a terrific lawyer."

At 50, Kagan would be the youngest justice on the court, which would give her the opportunity to extend Obama's legacy for a generation.

Kagan would also be the first justice without judicial experience in almost 40 years. The last two were William H. Rehnquist and Lewis F. Powell Jr., both of whom joined the court in 1972.

The selection of Kagan was the result of a strategy mapped by White House chief of staff Rahm Emanuel, with the day-to-day work of whittling down the nominee list handled by White House Counsel Bob Bauer. Kagan and Obama's fellow law lecturer Diane Wood, a federal appellate judge in Chicago, was a finalist.

Part of that strategy involved another Chicagoan, Tina Tchen, chief of the White House Office of Public Engagement, who was involved in setting multiple meetings with the Obama-allied outside special interest groups who could be helpful in the confirmation.

Is Kagan really a moderate?

"I think she's a moderate-to-liberal, moderate progressive, along the lines of a [Justice Ruth Bader] Ginsberg or a [Justice Sonia] Sotomayor," Stone said. "Basically, she'll replace Stevens, although I think Stevens is probably, at this point in his career, somewhere to the left of where Elena would be."

Kagan appeared on tage with Stevens in Chicago a week ago at the 7th Circuit Bar Conference. She had offered to cede top billing to Stevens, but Stevens insisted on letting her be the main act. She used to opportunity to lavish praise on Stevens.

"How fortunate was this country to have had Justice Stevens' service over these last 35 years?" she said, then answered her own question: "This country was fortunate beyond all measure."

Stone said Kagan could command respect from judges on both sides of the ideological spectrum: "She was on the faculty ... and during that time she won the respect of her colleagues...her students loved her classes."

Former U. of C. law student Jesse Ruiz, who's now chairman of the Illinois State Board of Education, remembers Kagan as "a really good professor, really concerned about teaching."

She was also an opera lover and a formidable opponent when she played on the faculty trivia team against the student trivia team, Ruiz recalled. Looking at photos of her playing Chicago-style 16-inch "Clincher" softball, Ruiz added, "and you can really see her knocking the cover off of a 16-inch softball."

"She's a great appointment," said former University of Chicago law professor Al Alschuler, who also taught with Kagan and Obama and now teaches at Northwestern. "She was extremely popular. I think everyone at Harvard admired her. She made friends when she was working at the White House. I think her confirmation process will go smoothly. "

Kagan had one trait that surely did not hurt her with Obama, Alschuler said: "The only playoff game I've ever been to, she took me to, I about froze to death, but she insisted, she was a very strong White Sox fan while she was in Chicago."

When the president introduced Kagan this morning, he clarified that the Manhattan native is, in fact, a New York Mets fan.

Kagan, who is unmarried, was born in New York City. She holds a bachelor's degree from Princeton, a master's degree from Oxford and a law degree from Harvard.

Kagan's fate will be up to a Senate dominated by Democrats, who with 59 votes have more than enough to confirm her, even though they are one shy of being able to halt any Republican stalling effort. Republicans have shown no signs in advance that they would try to prevent a vote on Kagan, but they are certain to grill her in confirmation hearings over her experience, her thin record of legal writings and her objections to the military's policy about gays.

When she was confirmed as solicitor general in 2009, seven Republicans backed her: Sens. Tom Coburn of Oklahoma, Susan Collins of Maine, Judd Gregg of New Hampshire, Orrin Hatch of Utah, Jon Kyl of Arizona, Richard Lugar of Indiana and Olympia Snowe of Maine.

For the second straight summer, the nation can expected an intense Supreme Court confirmation debate even though, barring a surprise, Kagan is likely to emerge as a justice.

Supreme Court justices wield enormous power over the daily life of Americans. Any one of them can cast the deciding vote on matters of life and death, individual freedoms and government power. Presidents serve four-year terms; justices have tenure for life.

Democrats went 15 years without a Supreme Court appointment until Obama chose federal appellate judge Sonia Sotomayor last year to succeed retiring Justice David Souter. Just 16 months in office, Obama has a second opportunity with Kagan, under different circumstances.

Obama's decision last year centered much on the compelling narrative of Sotomayor, the first Hispanic Supreme Court justice, who grew up in a housing project and overcame hardship.

This year, Obama particularly wanted someone who could provide leadership and help sway fellow justices toward a majority opinion. The president has grown vocal in his concern that the conservative-tilting court is giving too little voice to average people.

Her background, including time as a lawyer and a key domestic policy aide in the Clinton White House, would give the court a different perspective.

Kagan has the high task of following Stevens, who leaves a legacy that includes the preservation of abortion rights, protection of consumer rights and limits on the death penalty and executive power. He used his seniority and his smarts to form majority votes.

Kagan would be the fourth woman to serve on the Supreme Court, following current Justices Ginsburg and Sotomayor and retired Justice Sandra Day O'Connor.

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your kinda woman, eh?

blah blah blah

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Lynn Sweet

Lynn Sweet is a columnist and the Washington Bureau Chief for the Chicago Sun-Times.

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About this Entry

This page contains a single entry by Lynn Sweet published on May 10, 2010 10:56 AM.

Obama nominates Elena Kagan for Supreme Court. "Honor of a lifetime," Kagan said. Transcript was the previous entry in this blog.

Giannoulias presses Kirk--who said he would have voted against Sotomayor--on Elena Kagan is the next entry in this blog.

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