Elena Kagan Tapped For Supreme Court

Today President Barack Obama announced Elena Kagan as his pick to fill the vacancy on the U.S. Supreme Court. Justice John Paul Stevens will retire this summer. Kagan served as the Solicitor General of the United States. She was the first woman to serve as dean of Harvard’s Law School. However, she’s never served as a judge. Host Michel Martin speaks with Eva Rodriguez with the Washington Post. Rodriguez is a member of the Washington Post’s editorial board and she’s a former editor of the Legal Times. Also joining the conversation to talk about the significance of Kagan’s nomination is: Kevin Johnson, dean of the law school at the University of California, Davis and Harvard Law professor Charles Ogletree.

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MICHEL MARTIN, host:

This is TELL ME MORE, from NPR News. I'm Michel Martin.

Coming up, the governor of Puerto Rico tells us why the island is experiencing sky-high unemployment and what he's doing about it, and why he thinks the island should become America's 51st state. That conversation in a few minutes.

But first, President Barack Obama announced his nominee to replace retiring Supreme Court Justice John Paul Stevens.

President BARACK OBAMA: 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.

(Soundbite of applause)

MARTIN: Kagan is the former dean of the Harvard Law School and is currently serving as solicitor general, which means she represents the United States in the Supreme Court and federal appellate courts. But what else do we know about her, and what reception is she likely to face in the Senate? To find out more, we've called Eva Rodriguez. She's a member of The Washington Post editorial board and a former editor of the Legal Times and a former Supreme Court reporter. She joins us from the studios at The Washington Post here in Washington, D.C.

Also on the line, Kevin Johnson, dean of the law school at the University of California Davis. He's also a member of the board of directors for the Mexican-American Legal Defense and Education Fund, known as MALDEF. And Charles Ogletree, professor of law at Harvard and the director of the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School. He's here with me in our Washington, D.C. studio. I welcome you all. Thank you for joining us.

Professor KEVIN JOHNSON (Dean, School of Law, University of California Davis): Good to be with you, Michel.

Ms. EVA RODRIGUEZ (Editorial Board, The Washington Post): Thanks for having me.

Professor CHARLES OGLETREE (Law, Harvard University): Thanks for having me.

MARTIN: Eva, I'm going to start with you, because the last time we talked with you, when Justice Stevens announced his retirement, you mentioned that many people on the left were perhaps not so secretly hoping that President Obama might tap somebody who would be a strong and recognizable progressive voice, the argument being that Sonia Sotomayor - his first selection, who was fundamentally viewed as a moderate - had a rough time in the Senate, that the president should just go for it and select a high-profile progressive. Is Elena Kagan that person?

Ms. RODRIGUEZ: You know, the short answer - and I'm sorry to say this - is we don't really know. We don't know for sure. In part, it's because she doesn't have much of a paper trail, either academically or, because she's never served as a judge, there are no opinions out there. She's clearly progressive when it comes to things like don't ask, don't tell. She's been on the record as saying she finds that policy abhorrent. But how she would rule as a judge, we don't know.

And, in fact, Michel, it's funny that you start off by asking about her progressive, you know, bona fides. But I have found it remarkable that liberal interest groups that have, you know, been sending out emails after the president's announcement, have been so tepid. For example, People for the American Way, an organization that fights for progressive nominees and progressive issues, issued this: Elena Kagan is bright and clearly qualified. We look forward to hearing more about her judicial philosophy at the confirmation hearings.

That's not exactly the sort of cheer that you would expect from the left. And in part, it's because there is so much about Elena Kagan's thoughts, political views, judicial philosophy that's unknown.

MARTIN: Charles Ogletree, you were there when Elena Kagan's nomination was announced. You were at the White House.

Prof. OGLETREE: Right.

MARTIN: And you're kind enough to join us after that. What about that?

Prof. OGLETREE: Well, I've known Elena for 25 years, since she was a law student at Harvard when I first started teaching. And she has all the qualities that the president mentioned. I think she's going to be a real sparkplug for the Supreme Court. She's bright. She's independent. She has good judgment. She's able to bring people together.

And I think that we have lost the liberal icons. There won't be another Thurgood Marshall or William Brennan in our time with this Senate approving it. But somebody who has the ability to step right in and do the job as she did as the first woman ever as the dean at Harvard, first woman ever as solicitor general - she's been a path-breaking, trailblazing icon in her 50 years. And she's going to make an important impact on the court. And I think she'll be someone who - you can't replace Justice Stevens, but she'll be an incredible benefit to the country and to the Supreme Court when she's confirmed.

MARTIN: I want to hear more about why you think that, but I want to bring Dean Johnson into our conversation. Elena Kagan is not a sitting judge, dean. She'd be the only one on the court. Although it's worth pointing out that Justice Roberts and Justice Thomas had served very briefly on lower courts before they were elevated to the Supreme Court.

So what's the advantage to the president of selecting somebody who is not a judge? And I do have to say that a lot of the sort of the before chatter, where you kind of get the sense of the administration preparing the way for someone, made a point of saying that it would be an advantage to have someone who's not a judge. So, dean, why?

Prof. JOHNSON: I think that's a very important question, and I think President Obama made it fairly clear that he wanted to increase the diversity of experience on the Supreme Court. He knows, for example, that the court that decided Brown vs. Board of Education was composed of nine justices who had not previously had judicial experience in the courts of appeals. And I think that he wanted to return some independence in terms of background to the judiciary.

And I think it's important now that Elena Kagan, who has experience as a solicitor general, who has experience in the White House, has experience in academia, would bring some difference and difference of experiences to the court, some political experience. There'd been some discussion of a possible politician appointed, office holder appointed to the court.

And I think that this move is in the right direction. We've been focusing so much in recent years on judicial experience and how many years on the circuit court. Now we have a Supreme Court that's composed almost exclusively, if not exclusively, of previous court of appeals judges. And I think that the president wanted to move away that, bring some fresh perspective, bring some perspective from the world outside the judiciary. And I think Elena Kagan is an important move in that direction.

MARTIN: If you're just joining us, this is TELL ME MORE from NPR News. I'm Michel Martin. We're talking about the nomination of Solicitor General Elena Kagan, a former dean of the Harvard Law School, as President Obama's next selection to sit on the Supreme Court. She will replace John Paul Stevens, who announced his retirement.

My guests are journalist Eva Rodriguez. She's a former Supreme Court reporter -she's on The Washington Post editorial board - law school dean, Kevin Johnson, and Harvard law professor, Charles Ogletree. Charles Ogletree, you were saying that you think this will be an impactful nominee, if confirmed. Why do you think that?

Prof. OGLETREE: Well, Elena's always been a trailblazer. If you look at what she did at Harvard Law School - and I've worked very closely with her. She was very great in increasing the number of minority students, African-American, Native-American, Asian-American and Latino students during her six years as dean. She brought in a lot of people of color as visitors from the faculty and tried to get those appointments, as well. And people look at the raw numbers and say she hasn't done anything, but I know what she tried to do. And the one thing I do know...

(Soundbite of laughter)

Prof. OGLETREE: ...Kevin, with all due respect, my friend, deans don't decide faculty appointments. Faculties do. And it's a very hard thing. But she's been someone who's worked behind the scene. And I think she'll be that way in the court. She'll be very effective. She'll be very respected. She's not going to sit and wait for things to happen. And I think the fact that she's 50 years old, the youngest Supreme Court justice in a long time, she's going to have a big impact on this court.

MARTIN: In remarks made today, she singled out her work for Supreme Court Justice Thurgood Marshall, for whom she clerked. I'll just play a short clip. And here it is.

Ms. ELENA KAGAN (Solicitor General; Supreme Court Nominee): My professional life has been marked by great, good fortune. I clerked for a judge and for a justice, Thurgood Marshall, who did more to promote justice over the course of his legal career than did any lawyer in his lifetime. I have had the opportunity to serve under two remarkable presidents who have devoted themselves to lifting the lives of others and to have inspired a great many more to do the same.

MARTIN: Eva, will Elena Kagan's career be tied to Thurgood Marshall's, for good or for ill? Will she be deemed to be carrying on his legacy in part because she clerked for him? Or...

Ms. RODRIGUEZ: Well, let's see. Look, I can't imagine that having had that experience working, you know, for Justice Marshall isn't going to have an enormous impact on Elena Kagan, not only in terms of his judicial philosophy view of the world, the little guy versus the big guy, right? But just having had that experience behind the scenes at the court to understand how justices come together or fall apart in deciding a case.

I'm not sure, though, that in many areas such as national security and some civil liberties areas whether Elena Kagan today would be in step with Justice Marshall.

MARTIN: I'll just play a short clip. We're going to take a short break, but I'm going to bring you all back for a couple minutes after the break. But before we do, I just want to lay a little bit of the groundwork for the kind of conversation that may ensue once the confirmation hearings begin. When Justice Stevens announced his retirement, the president had this to say about the type of person he'd be looking for as a replacement. Let me just play that.

Pres. OBAMA: An independent mind, a record of excellence and integrity, a fierce dedication to the rule of law and a keen understanding of how the law affects the daily lives of the American people. It will also be someone who, like Justice Stevens, knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.

MARTIN: Now, last week in an editorial in The Washington Post, Republican Senator Jeff Sessions wrote that that statement was, quote, "nothing more than another thinly veiled attempt to justify judicial activism." He wrote: What matters is what the Constitution says, not a judge's personal take on what laws are best for the country.

Dean Johnson, was he saying that? How do you interpret this kind of prefight over the confirmation?

Dean JOHNSON: I think that whatever whoever the nominee was that you were going to have, Senator Sessions making some noises about judicial activism because that's what he's going to do. That's what he did when he was challenging Judge Sotomayor, now Justice Sotomayor, in the confirmation hearings last summer.

I wouldn't make that much of his comments. And I think that the president made very clear that he wanted somebody who was committed to the rule of law, was independent, who is excellent in all respects and also understood the experiences of real people in the United States. So I do think that we are going to hear some talk about activism, that's sort of the, you know, the kiss of death for some nominees nowadays, if you're a Republican attacking them. But I don't think it's going to go very far with Elena Kagan.

MARTIN: Professor Ogletree, we only have 30 seconds before we need to take our break and I'll come right back to you, but your thoughts?

Prof. OGLETREE: Well, I think, you know, the senator's wrong. The idea of activism is not liberal or conservative. It's any judge who wants to move something in a direction. That's not Elena Kagan. She's never been viewed as an activist. She won't be. She's very careful and very thoughtful.

And think about it, Chief Justice John Roberts clerked for former Chief Justice William Rehnquist. Now nominee Elena Kagan clerked for Thurgood Marshall. I hope they both learned something from the justices they clerked for and I hope that might be an impact on their judicial philosophy.

MARTIN: We need to take a short break, but when we come back, we'll have more with our panel. We're talking about the nomination of Elena Kagan to the next seat on the Supreme Court. I'm speaking with Charles Ogletree, professor of law at Harvard. Eva Rodriguez, Washington Post editorial board member, former Supreme Court reporter and Kevin Johnson, dean of the law school at the University of California Davis and a board member at MALDEF.

Please stay with us. I'm Michel Martin and you're listening to TELL ME MORE from NPR news.

(Soundbite of music)

MARTIN: I'm Michel Martin and this is TELL ME MORE from NPR News.

In a few minutes we'll hear from the governor of Puerto Rico. We'll talk about the economic conditions in his state and also his drive to make Puerto Rico the 51st state. That's in just a few minutes.

But, first, we continue our conversation about the nomination of Elena Kagan to the Supreme Court. We're joined by Eva Rodriguez of The Washington Post editorial board and a former editor of Legal Times. Also on the line with us, Kevin Johnson, dean of the law school at the University of California Davis. And last, but not least, Harvard law professor Charles Ogletree.

Professor Ogletree, it's been reported that one of the things that Elena Kagan was known for when she was dean was not just improving the quality of life for students, but also addressing what has been described as a kind of warfare between the liberal and conservative factions of the faculty. What are people talking about? And what exactly did she do?

Prof. OGLETREE: Well, Harvard was divisive for almost a quarter of a century, since I started in 1985, between the left and the right. And appointments were not made or appointments that were made were rejected by the then president at Harvard University. And it was a battle. And she came in and she pushed the different points of view to make sure that there was a sense about the qualifications of the individuals. And she also opened up that pipeline.

And the reality is that people may disagree with her, but they had a chance to express their views on every candidate. And now we have a diverse faculty. We have one of the largest faculty of people of African descent of any law school other than Howard University. And we just confirmed another woman, who Annette Gordon-Reed, who, you know, a Pulitzer Prize winning author who just accepted the appointment, and Elena brought her in. And there are other people in that pipeline as well.

So, she has settled the sense about talent and ability and diversity and made sure that people had that opportunity to express themselves.

MARTIN: Dean Johnson, what about we've talked about diversity in terms of sort of ethnic profile and gender. She would be the fourth woman selected for the court if confirmed. She's be the it'd be the first time in history three women would be serving at the same time, but are there other diversities on the court that would be of interest to you? For example, the lack of geographic diversity is something that used to be of great interest to nominating presidents. It doesn't seem to be anymore.

Dean JOHNSON: Well, I mean there was some talk in the nomination, you know, process early on as people were talking about the nomination, that we might see somebody from the Midwest and we might see somebody like Diane Wood because currently we don't have anybody from the Midwest serving on the court. And I think the president's made the judgment that kind of diversity, while important - for this individual appointment, he found what he thought to be the best person for the job and is looking at that person.

I do think that in the future, it is important to have some kind of geographic diversity on the court, as well as gender and racial diversity on the court.

MARTIN: Eva, this was a big issue in Sonia Sotomayor's confirmation hearings. Of course this is the first Latina to be nominated, then to serve, the first person of Latino descent to, you know, of either gender. What do you think the lines of discussion will be this time around?

Ms. RODRIGUEZ: As far as Elena Kagan and the diversity that she brings?

MARTIN: Or just or in general. What are the lines of conversation going to be, since you've already highlighted the fact that many people really don't know what her position is on many issues. But what other lines of discussion do you think will ensue at these hearings?

Ms. RODRIGUEZ: Well, I think we'll end up having what is a, you know, a robust discussion about whether prior judicial experience matters as far as choosing a Supreme Court justice. I mean, that's one line of attack that even before this morning's announcement, some on the right had been pushing as far as Kagan's concerned.

I think it's refreshing not to have somebody from the sort of judicial monastery, and yet someone who is unquestionably qualified and will no doubt master the art of being a justice rather quickly. I think we'll have, again, simply because it was a huge issue when Ms. Kagan was confirmed last year as solicitor general, we'll have a discussion about Don't Ask Don't Tell, same sex marriage.

And we may, you know, we may even I don't think this is a big deal but we even have a discussion about whether it matters that for the first time in I don't know how long, there is not a Protestant on the court. So we'll talk about religious diversity as well.

MARTIN: Tell me if you would just briefly clarify the Don't Ask Don't Tell controversy and why that's an issue here.

Ms. RODRIGUEZ: Oh, sure, sure. When Kagan was dean of the Harvard Law School, she tried to bar military recruiters from the law school campus because she found the and she and many, many others on campus found the Don't Ask Don't Tell policy repugnant. In the end, she backed off of that in large part because the school would've risked losing hundreds of millions of dollars in federal funding. And ultimately, a case challenging this made it to the Supreme Court. And the Supreme Court by, I believe, 8-0 said that you can't bar military recruiters.

MARTIN: Will that likely be held against her as evidence of an animus toward the military, for example or what?

Ms. RODRIGUEZ: Yes, by some, absolutely. By some, absolutely. They will try to depict that as an animus towards the military, as a strong and unreasonable bias toward issues of sexual orientation and diversity. You know, personally I think she was right on the policy. And I think that Don't Ask Don't Tell is repugnant.

There is a hugely, though, between somebody espousing a policy view as a dean of a law school, and somebody ruling as a justice of the Supreme Court on the legality of a policy. So it doesn't dovetail completely, although I think we know as a matter of law what where Kagan leans.

MARTIN: Okay. And Professor Ogletree, if you would address it from the other direction. Eva Rodriguez started us off by saying the number of the progressives were actually rather tepid in response to this announcement and that could be interpreted any number of ways, as perhaps not wanting to be too enthusiastic for political reasons, or it could be they're generally not terribly pleased about the appointment. How do you interpret that?

Prof. OGLETREE: Well, Elena Kagan's not the most liberal candidate. And, in fact, what we do know is that it's unlikely that someone who is a pronounced and papered liberal would not be confirmed by Democrats or Republicans. She doesn't have the paper trail.

My good friend and mentee Goodwin Liu, who's nominated from the 9th circuit now, is going through a blistering examination by Republicans because he honestly as a scholar said what he thought about issues of race and equality, et cetera, and he's being taken to task for it. I think Elena Kagan is going to be someone who comes in with an arsenal of ideas that other justices will respect. She's not going to try to overturn the law overnight. She's going to be someone who will do her homework, who will be very thoughtful and who has life experiences that I think is going to be very important in making her a great justice for more than a quarter century.

MARTIN: And Dean, a final thought from you, and we only have about a minute left. We've, again, talked a lot about sort of various forms of diversity and the need to have somebody connected to the real world. Is she that person as a person who's been a scholar? No disrespect to you, Professor, but you were also a practicing attorney before you became a scholar for 10 years.

Prof. OGLETREE: Yes I was, thank you. Thank you very much.

(Soundbite of laughter)

MARTIN: But she spent her entire career in the academy and this is her, really, her only as solicitor general it's the first time she's really been a trial lawyer. Is she that person?

Dean JOHNSON: She also spent five years in the Clinton White House, first as the deputy assistant to the president for domestic policy. She's associate White House council and deputy director of the domestic policy council. So I don't think it's fair to say that she spent her entire career just in the cloistered halls of academia. She has worked at the highest levels of the federal government, you know, sat with the president making some of the most difficult decisions of all.

I mean, and she does have some very practical coalition-building experience as Professor Ogletree mentioned that the Harvard law faculty is known for its fractiousness, particularly before she joined the faculty. She does have some real world experience that shouldn't be ignored as well. She is an academic. She spent some time in academia, so I think that shouldn't be held against her.

MARTIN: We have to leave it there for now. Dean Kevin Johnson Kevin Johnson is dean of the law school at the University of California at Davis. He joined us from his office there.

Harvard Law School professor, Charles Ogletree, is with us here in Washington, D.C. His latest book is "The Presumption of Guilt: The Arrest of Henry Louis Gates, Jr. and Race, Class and Crime in America."

Also with us, Eva Rodriguez of The Washington Post editorial board. She's with us from their offices there. I thank you all for joining us.

Dean JOHNSON: Thank you.

Prof. OGLETREE: Our pleasure.

Ms. RODRIGUEZ: Thank you.

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