Obama To Nominate Elena Kagan To High Court

President Obama officially announces on Monday that his choice to serve as the 112th Supreme Court Justice is Elena Kagan. She's currently the solicitor general, and was the former dean of Harvard Law School. Kagan has never served as a judge.

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RENEE MONTAGNE, host:

This is MORNING EDITION from NPR News. Im Renee Montagne.

LYNN NEARY, host:

And Im Lynn Neary in for Steve Inskeep who's on assignment.

President Obama has named his next pick to serve on the Supreme Court, replacing Justice John Paul Stevens.

President BARACK OBAMA: While we can't presume to replace Justice Steven's wisdom or experience, I have selected a nominee who I believe embodies that same excellence, independence, integrity, and passion for the law; and who can ultimately provide that same kind of leadership on The Court. Our solicitor general, and my friend, Elena Kagan.

NEARY: His choice, Elena Kagan, was standing beside him in the East Room of the White House. Kagan is the nation's solicitor general, and the former dean of Harvard Law School. She's had a meteoric legal career, but she's never served as a judge.

Joining us now, in the studio, is NPR's legal affairs correspondent Nina Totenberg. Good morning, Nina.

NINA TOTENBERG: Good morning, Lynn.

NEARY: So tell us a little bit about Elena Kagan.

TOTENBERG: Well, she's a native New Yorker, like at least, I think, three other members of The Court. She's the daughter of a school teacher and a lawyer. She went to New York City public schools, was a star student at Princeton, at Oxford, at Harvard Law School - then clerked for the man she calls her mentor, Supreme Court Justice Thurgood Marshall, who used to refer to her as Shorty.

She spent her early career teaching at the University of Chicago and practicing law, then served in the Clinton White House in a number of top legal and policy jobs.

In 1999, when she was just 39 years old, President Clinton nominated her to the Federal Appeals Court here in Washington, but the Republican-controlled Senate never took up the nomination and it died at the end of the Clinton presidency.

In the meantime, she started teaching again, this time at Harvard Law School, where she very quickly became the first female dean. In that job, she was just hugely popular with students and won widespread praise for ending the long running ideological faculty wars, for changing the curriculum, for raising a humongous amount of money. She was a huge success.

NEARY: And if Elena Kagan is confirmed, it would set some more precedence on The Court, wouldnt it?

TOTENBERG: Yes, it would the first time in this country's history that there were three female justices. I know here, that we are a majority of the country. It would also be the first time there would be no Protestant justice. And I think Protestants are a plurality of the country, anyway. Six of the current justices are Catholic, Kagan would be the third Jewish justice on the current court.

NEARY: And I find this very interesting, that she would also be the only current member with no previous judicial experience.

TOTENBERG: Well, thats true. All the current justices came from the lower courts, though Chief Justice Roberts and Justice Thomas each served roughly two years or less on the courts. But, more to the point, her non-judicial career path may have been one of the reasons she was chosen. It means she doesn't have a big paper trail.

Until very recently in this country's history, for in addition, most of The Courts' members did come from the lower courts. They were former senators, congressmen, cabinet members, even one president William Howard Taft - people from other branches of government, people with experiences that are, and I suspect, Lynn, you're gonna hear this expression more than once, outside the judicial monastery.

(Soundbite of laughter)

NEARY: Now, what kind of timetable do you expect for the confirmation proceedings?

TOTENBERG: Well, I think they're going to try to have the hearings in about six weeks, and get her on the floor of the Senate for a confirmation vote before the August recess. And if there are no unexpected hitches, that should be possible.

NEARY: What are some of the problems might she face in the process?

TOTENBERG: Well, the first thing she's going to face is, there were 31 votes against her when she was confirmed for solicitor general. And one of the big subjects was, then, her lack of experience that she'd never argued a case before the Supreme Court. In addition, there was a good deal of controversy about the position she took as dean at Harvard Law School, in which she cut off access for military recruiters because of Don't Ask, Don't Tell; joined a lawsuit supported a lawsuit that challenged to advocate that policy; lost spectacularly, unanimously, in the Supreme Court. And then there are her views on a host of other things that she actually has written on, even though her paper trail is sparse, there's stuff to go to.

NEARY: All right. Thanks so much.

TOTENBERG: Thank you.

NEARY: NPR's legal affairs correspondent, Nina Totenberg.

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