Kagan Nominated to Supreme Court
Last month, PAI reported that John Paul Stevens had announced his retirement at the end of the court’s current term. As a result, President Obama has nominated U.S. Solicitor General Elena Kagan to fill Stevens’ seat. Stevens’ retirement gives President Obama his second Supreme Court nominee in just two years. Both Stevens and David Souter were appointed by Republican Presidents (Gerald R. Ford, and George H.W. Bush) but were among the court’s most liberal justices. Now, with the retirement of Stevens, who is arguably the most liberal justice on the Roberts Court, Obama has the opportunity to shape his political legacy by appointing a new justice.
Interestingly, Kagan’s nomination has garnered immense criticism from both the left and the right as a result of her views on due process, the Commerce Clause, Executive Branch powers, and her strong support for same-sex marriage. President Obama and the Democrats should expect the fight of their lives with the Kagan nomination, as Republicans and conservatives are livid about her nomination. Of all the nominees Obama was considering, Kagan is by far the most liberal and most controversial. Obama could have played it safer and nominated someone like Merrick Garland from the United States Court of Appeals for the District Columbia circuit—a court that has produced a number of Supreme Court justices, including: Wiley Rutledge, Warren Berger, Ruth Bader Ginsburg, Antonin Scalia, Clarence Thomas, and John Roberts. Instead, Obama appointed a candidate without any judicial experience. Republicans are going to work vociferously to block Kagan’s nomination to the Supreme Court. If Republicans are successful, expect Obama to nominate a moderate with judicial experience.
Elena Kagan, as mentioned above, has no judicial experience whatsoever. Upon graduation from Princeton University, Kagan attended Oxford University as a Rhodes Scholar and then Harvard Law School. While at Harvard, this native New Englander had the opportunity to serve as a law clerk for Thurgood Marshall, the court’s first African-American justice. Following her service as a clerk for Justice Marshall, Kagan served as a law professor at the University of Chicago Law School (the alma mater of Justice John Paul Stevens), as Associate White House Counsel, and as the dean of Harvard Law School after failing to be nominated to the United States Court of Appeals for the Washington, D.C. Circuit. During her time at Harvard, Kagan banned U.S. military recruiters from the Harvard campus.
Elena Kagan is a “stealth candidate,” much like Justice Souter was when he was appointed to the court in 1990. For years, she has been relatively silent on her philosophy and her views on landmark cases such as Roe v. Wade, Miranda v. Arizona, Wallace v. Jaffree, Stare Decisis, and others. Despite these many unknowns, scholars are familiar with her stances on executive power (she supports the usurpation of power by the president); the Commerce Clause (she is opposed to the court’s ruling that limits Congressional powers); and the Due Process Clause (she supports “substantive due process,” a very liberal interpretation of the law). From analysis of Kagan’s views on the three aforementioned issues, it appears as though she is going to be a member of the court’s liberal wing, and it is therefore safe to assume that Kagan is a staunch supporter of liberal positions established in Roe v. Wade, Miranda v. Arizona, Hamdan v. Rumsfeld, Hamdi v. Rumsfeld, Gratz v. Bollinger, Gruttner v. Bollinger, and the little known school prayer case, Elk Grove Unified School District v. Newdow.
If confirmed, the addition of Elena Kagan to the Court is unlikely to change its composition in any significant way. Currently, the Supreme Court is comprised of four conservatives (Scalia, Thomas, Roberts and Alito), four liberals (Breyer, Ginsburg, Sotomayor and Stevens), and one moderate swing voter (Kennedy) who sides with conservatives on cases pertaining to religious freedom, affirmative action and due process, but is a strong proponent of international law. It appears as though Kagan will side with the liberals on the vast majority of issues. If confirmed, Kagan would be the fourth female in the history of the Supreme Court and the first justice in four decades without any prior judicial experience.
Expect the Kagan nomination to be as contentious as any since Clarence Thomas’ nomination in 1991. It appears as though Kagan will be confirmed by the Senate by a very slim margin, with perhaps one or more Republican Senators voting for her confirmation; if even one Republican crosses the aisle and joins the Democrats in approving her, she will be confirmed.
The National section of the Weekly Political Forecast is written by PAI’s Political Analyst.