Both Liberals, Conservatives Unsure Of Kagan
ROBERT SIEGEL, host:
From NPR News, this is ALL THINGS CONSIDERED. I'm Robert Siegel.
MICHELE NORRIS, host:
And I'm Michele Norris.
President Obama made it official this morning. He announced his appointment of Solicitor General Elena Kagan to succeed retiring Justice John Paul Stevens on the U.S. Supreme Court. If she is confirmed, the high court would have three female justices for the first time in its history and no Protestant justice.
NPR legal affairs correspondent Nina Totenberg has this profile.
NINA TOTENBERG: Elena Kagan once told a reporter plaintively that she, quote, "Didn't have a good story," meaning that she'd not overcome huge odds to get where she is. Indeed, her mother was a public school teacher, her father a lawyer who specialized in tenant rights cases.
Kagan went to New York City public schools then to Princeton, Oxford and Harvard Law School. Her career path has been meteoric. She clerked first for Judge Abner Mikva and then for the man she called her mentor, Supreme Court Justice Thurgood Marshall.
After that, she practiced law then taught at the University of Chicago Law School. And when Bill Clinton was elected president, she went to the White House, where she held a number of legal and policy positions.
In 1999, she was just 39 years old when President Clinton appointed her to the Federal Appeals Court here in Washington. The Republican-controlled Senate however, never took up her nomination, and it died at the end of the Clinton presidency.
Kagan then took a job at Harvard, soon won tenure, and in 2003 was appointed the first female dean of the law school. In 2009, she left that perch to become the government's chief advocate in the U.S. Supreme Court, the solicitor general.
President Obama today portrayed his nominee as more than just a brilliant scholar but a person with the temperament of a judge.
President BARACK OBAMA: Her openness to a broad array of viewpoints, her habit, to borrow a phrase from Justice Stevens, of understanding before disagreeing, her fair-mindedness and skill as a consensus builder.
TOTENBERG: Kagan, her voice at times thick with emotion, spoke about the honor of representing the United States in the Supreme Court and what she called the simple joy of teaching.
Ms. ELENA KAGAN (Solicitor General, Department of Justice): Of trying to communicate to students why I so love the law, not just because it's challenging and endlessly interesting, although it certainly is that, but because law matters, because it keeps us safe, because it protects our most fundamental rights and freedoms, and because it is the foundation of our democracy.
TOTENBERG: Republicans quickly focused on Kagan's lack of judicial experience. Senate Republican leader Mitch McConnell.
Senator MITCH McCONNELL (Republican, Kentucky; Senate Minority Leader): She has been nominated for a lifetime appointment on the nation's highest court, and we will carefully review her brief litigation experience, as well as her judgment and her career in academia.
TOTENBERG: Senate Judiciary Committee Chairman Patrick Leahy had this response.
Senator PATRICK LEAHY (Democrat, Vermont; Judiciary Committee Chairman): I told the president, I said you realize if you had nominated Moses the law giver, somebody would raise: But he doesn't have a birth certificate. Where's his birth certificate?
TOTENBERG: The last Supreme Court justice to serve on the court without prior judicial experience was William Rehnquist, appointed by President Nixon and elevated to chief justice by President Reagan. He died in 2005 and was replaced by John Roberts, who had two years of judicial experience.
If President Obama hopes to portray Kagan as a nominee from the real world as opposed to the so-called judicial monastery, that may be a hard sell, according to Supreme Court advocate Tom Goldstein.
Mr. TOM GOLDSTEIN (Advocate, U.S. Supreme Court): She may be outside the judicial monastery. It's probably fair to say that she's still in church.
TOTENBERG: Probably the best thing Kagan has going for her, politically, is support from many conservative scholars. As dean at Harvard, she ended the long-running ideological faculty wars over new hires, adding 22 new tenured professors, including a number of prominent conservatives. Among her fans is Harvard professor and Reagan administration Solicitor General Charles Fried.
Professor CHARLES FRIED (Former U.S. Solicitor General, Department of Justice; Law, Harvard Law School): I think she's terrific.
TOTENBERG: And Jack Goldsmith who authored some key opinions for the Bush Justice Department in the war on terror before joining the Harvard faculty.
Professor JACK GOLDSMITH (Law, Harvard Law School): I have a very strong feeling that she will be a great justice. She will be a very consequential justice.
TOTENBERG: Conservative's scholarly support does not immunize Kagan, though, from conservative criticism. Here's Ed Whelan of the Ethics and Public Policy Center.
Mr. ED WHELAN (President, Ethics and Public Policy Center): I think what we see is that in Elena Kagan, apparently ever since high school, has harbored the ambition of being a Supreme Court justice and has very deftly maneuvered her way along that path. And she's been very guarded in expressing her views at the same time, you know, cultivating some very helpful ties to powerful folks on the left.
TOTENBERG: Indeed, so elusive are Kagan's views that the constant refrain one hears from her pals on the right and left is, what does Elena believe? Republicans are bound to press her on a variety of subjects and to hold her to what they are already calling the Kagan standard. That's a reference to the 1995 law review article Kagan wrote in which she criticized senators for failing to ask, and nominees for refusing to answer, questions about their views on specific issues. The current system of confirmation, she said, is a vapid and hollow charade.
At her confirmation hearing for the job of solicitor general, much criticism focused on the military recruiting policy she continued as Harvard Law School dean. The policy barred military recruiters from campus because in the view of Harvard and many other law schools, the Don't Ask, Don't Tell policy was discrimination against gay students.
Indeed, Kagan called the policy a moral outrage of the first order, but she rescinded the ban on recruiters when the Supreme Court ruled unanimously against the law school's position.
Today, the recruiting controversy was again the focus for many critics, but another controversy is waiting in the wings. Buried in the record is a letter Kagan wrote that's bound to set off alarm bells among Republicans, especially a key Republican on the Senate Judiciary Committee, South Carolina's Lindsey Graham, who last year was the only Republican on the committee to support Sonia Sotomayor's nomination.
In 2005, Kagan wrote a letter, with three other law school deans, opposing Senator Graham's legislation to strip the courts of the power to review almost anything that happened at Guantanamo Bay, Cuba. Under the legislation, the courts would have no role in reviewing the treatment of detainees, their trials or any punishment meted out, including the death penalty. Quote, "When dictatorships have passed similar laws," said Kagan and her fellow deans, "our government has rightly challenged such acts as fundamentally lawless. The same standards should apply to our own government."
Nina Totenberg, NPR News, Washington.
NORRIS: It's been observed that should Kagan be confirmed, all nine justices will have attended either Harvard or Yale Law School. Justice Ruth Bader Ginsburg transferred from Harvard to Columbia where she graduated.
SIEGEL: Not very diverse, you say? Well, perhaps, the court with Elena Kagan aboard will make up in geographical distribution what it lacks in educational diversity.
She grew up in Manhattan. Ginsburg is from Brooklyn. Sonia Sotomayor is from the Bronx. And Antonin Scalia grew up in the borough of Queens, although he was born down south, in Trenton, New Jersey.
The New Yorker in me says four out of five boroughs is not bad, now the court just needs someone from Middle America, also known as Staten Island.
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