Choosing Kagan: The factors at play

by James Oliphant

When Justice John Paul Stevens announced his retirement from the Supreme Court, the White House pledged a thorough and extensive search for his replacement. Officials said the president would seek someone who could understand the law's impact on ordinary Americans and perhaps someone from beyond the so-called "judicial monastery" - the judicial and intellectual Northeast elites that dominate the current high court.

Four weeks later, President Obama will name the person to the position that most expected him to name in the first place. But what makes Elena Kagan such a likely choice for this administration? First start with the most obvious point: As solicitor general, she's already been vetted by the White House and confirmed by the Senate--albeit not without some resistance.

Secondly, because of her work in Washington and elsewhere, she's well known by many people whose opinion Obama values, included an old political mentor of his, Abner Mikva, for whom Kagan served as a judicial clerk. And like Obama, Kagan attended Harvard Law School and taught at the University of Chicago. As dean of Harvard Law, Kagan had a great deal to do with burnishing the school's image, expanding the faculty and restoring an intense commitment to public service, accomplishments no doubt appreciated by the president.

Here are some other assets Kagan provides the White House:

1) She's young, by Supreme Court standards. If she is confirmed, she could serve on the high court alongside her contemporaries, conservative justices such as John Roberts and Samuel Alito, for decades.

2) By accounts, she is a confident and combative person who won't be afraid to disagree with the court's conservative majority at times.At the same time, she exhibited, both at Harvard and in the White House during the Clinton administration, the ability to forge a consensus with conservatives and strike compromises. Friends describe her as a pragmatist and a problem-solver, not as an ideologue.

3) There's a sparse record. For better or worse, her lack of experience as a judge means there are few indicators of her personal beliefs. Even her writing in academia has been largely unremarkable and bureaucratic. It could give her ample room to avoid being pinned down during confirmation hearings, just as Roberts enjoyed five years ago.

But, as with any potential choice, there are potential drawbacks:

1) She's an insider. The president ended up choosing someone within his own administration, which, to some critics, makes it looks like the fix is in. One conservative said Friday that Kagan would be picked to fend off constitutional challenges to Obama's signature triumph: the massive healthcare overhaul. Moreover, the choice comes in a year where many voters are distrustful of the federal government. A justice emerging from that environment could be viewed with deep suspicion by some.

2) She's never been a judge. Expect Sen. Jeff Sessions, the top Republican on the Senate Judiciary Committee, to express concern with Kagan's lack of experience in the courtroom and on the bench. Sessions believes a background as perhaps a U.S. attorney or a federal judge crucial for the Supreme Court.

3) There's no narrative. Sonia Sotomayor last year made for such an attractive choice last year because the White House had a real story to tell. Sotomayor had risen from a Bronx housing project to attend Princeton and Yale, worked as a street prosecutor in Manhattan, and was an undeniable history-maker for Hispanics. Kagan, who has spent her life at the highest levels of academia and government service, offers no such compelling tale. Still, the White House will portray her as someone who shattered the glass ceiling at both Harvard and at the solicitor general's office.

4) Some liberals don't like her. Since Kagan's name surfaced, critics on the left have warned that she holds a too-expansive view of executive power during a time of war, the very thing they distrusted in the Bush White House.

For more, here is a lengthy and spirited defense of Kagan by Supreme Court chronicler Thomas Goldstein. And here is a rebuttal to Goldstein and other criticism offered by Ed Whalen of the National Review.