NEAL CONAN, host:
This is SPECIAL COVERAGE from NPR News. I'm Neal Conan in Washington.
In a few moments, President Obama is expected to nominate Elena Kagan as an associate justice of the Supreme Court, currently solicitor general of the United States, the first woman to serve in that position, previously the first woman to serve as dean of Harvard Law School.
If confirmed, she would be the fourth female justice overall, the third to serve on this court. At 50, she would also be the youngest justice and would replace the oldest, John Paul Stevens, who announced his plans to retire last month.
Elena Kagan has never been a judge. She was nominated to the federal bench near the end of President Clinton's last term, but never got a hearing before the Senate Judiciary Committee then controlled by Republicans. Last year, she easily won confirmation as solicitor general in a bipartisan vote.
Because she has never been a judge, she does not have a paper trail of opinions and rulings, which worries some activists on both the right and left. But as of this morning, she is considered very likely to be a member of the court come the first Monday in October.
With me here in the studio in Washington are Ron Elving, senior Washington editor; and Mara Liasson, national political correspondent.
And, Mara, Elena Kagan goes back with Barack Obama. They were both...
MARA LIASSON: They are both professors at the University of Chicago Law School. She obviously is his solicitor general. He knows her very well. She was also on the short list for his first pick, which went to Sonia Sotomayor. But I agree with everything you said, she's likely to be confirmed.
What's interesting about her, because she has no paper trail as a judge, there are other things that are going to be poured over. And both the left and the right are complaining about her already. The left thinks she is too conservative. She's been in favor of a strong executive. The right is taking aim at something she did when she was the dean of Harvard Law School and she banned the military recruiters, I think, for the JAG. I think that was...
LIASSON: It wasn't ROTC, it was the JAG.
CONAN: Judge Advocate General.
LIASSON: Judge Advocate General, the legal arm of the military from recruiting on campus because of don't ask don't tell, which of course was a policy that was supported by her previous boss, Bill Clinton, and her current boss Barack Obama.
CONAN: So she does say she is not a unitarian, not speaking of her religion, of course, but about the idea of the unified presidency. But Ron Elving, as we look ahead to a confirmation process later this summer, hearings before the Judiciary Committee, the Obama administration would hope a vote before the August recess. She looks - she got seven Republican votes last time around, she looks like she might be eminently confirmable.
RON ELVING: She looks like she might be eminently confirmable. But I think we have to also consider what else happened this weekend, and that was that a senior senator, a three-term senator, Bob Bennett from Utah, was denied 40 percent at a convention of Utah Republicans.
And as a result, will not even be allowed to participate in the primary in that state. He has been politically assassinated out there. He has been taken down by conservative populist activist associated with the Tea Party, and I think that there are going to be shockwaves. There were already a lot of anticipatory shockwaves going through the Republican Party just because Bob Bennett had been targeted and was in trouble.
Now I think that there is going to a feeling on the part of many Republicans that they must oppose absolutely everything Barack Obama does.
CONAN: This event is in the East Room of the White House and here is President Barack Obama, along with Vice President Joe Biden and the nominee Elena Kagan.
(Soundbite of speech)
CONAN: Elena Kagan, just nominated by President Obama to be an associate justice of the Supreme Court, speaking in the East Room of the White House, shaking hands with the president and Vice President Biden. Immediately afterwards the applause, as she mentioned, largely from members of her staff at the Justice Department who were crowded into the East Room to mark this occasion. And Elena Kagan accepting on behalf of, well, all of those people she worked with.
She spoke movingly about her family, about their traditions, about the career that she's had. First, as she mentioned, a clerk for Abner Mikva, a judge in Washington, D.C., then later for Thurgood Marshall, an associate justice at the Supreme Court. Then later, of course, she served as a law professor at the University of Chicago and later at Harvard. She also served both in Clinton and Obama administrations. Currently, she is solicitor general of the United States.
You're listening to special coverage coming to you from NPR News. I'm Neal Conan in Studio 3A in Washington. With me: Ron Elving, senior Washington editor; and Mara Liasson, national political correspondent.
And, Mara, as we listen to this, well, you can expect the president to have kind words to say about Justice Stevens who is retiring and certainly established a long record on his stay on the Supreme Court. And then, of course, nothing but compliments for his nominee.
LIASSON: You know, the president's advisers have said in advance of this decision that he wanted someone who could not just be a fair-minded justice, but somebody who had skills at building consensus in the hopes that they could actually put together some majority coalitions, some five-vote coalitions. And he said that again. He said, you know, she's fair minded, but she also has skills as a consensus builder. And he pointed as evidence to the fact that she recruited prominent conservative scholars to come and teach at Harvard.
Now, that's true. But I guess I consider this the theory, the great unproved theory of this nomination. We don't know if Elena Kagan is going to be able to actually convince Anthony Kennedy to join her on anything. And that's certainly what President Obama hopes.
But we have no evidence that she'll be able to do that. And I actually don't think anybody who thinks she can, should get their hopes up. But she is young and I think that's one of the most important characteristics of her -qualifications of her nomination is that she will be in the court for a very long time.
CONAN: And, Ron Elving, perhaps not a consensus builder immediately but, as Mara is suggesting, maybe down the road she could take that role that John Paul Stevens certainly took on the court of molding people's opinions into groupings, perhaps not immediately as rookie justices do not always have that much influence.
ELVING: That is true. At the same time, we of course have this president who is a constitutional law scholar. He taught it at the University of Chicago. This was, in a sense, his profession before he got into politics. He cares a great deal about the long-term future of the Supreme Court.
And let's pause it just for the moment that his goal here is to - if he gets three or four nominees in the course of his presidency, his goal here is to construct the core of a new Supreme Court. And I think his idea here would be a Supreme Court that was not nine liberals, that was not composed of people who all were driven by ideology, but who were excellent constitutional minds, excellent legal minds who would work with each other to develop each other's ideas and to actually mature each other's ideas, moderate each other's ideas and be a wise Supreme Court.
Now, of course, he would believe that such a court would also probably comport with his own views...
CONAN: Agree with him 99 percent of the time.
ELVING: Exactly, I wouldn't doubt that for a moment. But I don't think he idealizes this as a collection of liberals. I think he sees it as a collection of legal minds and he sees Elena Kagan as being a perfect exemplar of that kind of legal mind.
CONAN: She is, by any measure possible, a Democrat. She supported President Obama in the primary. She supported - well, she worked for the campaign of the former governor of Massachusetts when he ran for president of the United States.
ELVING: Good old Michael Dukakis in 1988.
CONAN: Good old Michael Dukakis in 1988. Mara Liasson, though some liberal activist will say this is a lost opportunity. She is not noted as a liberal. This is the last time President Obama is likely to have 59 Democrats in the United States Senate and that this was his great chance to appoint somebody who would take up the mantle of John Paul Stevens.
LIASSON: That's right. The other theory was that since you're never going to have more Democratic votes in the Senate than you do now, why not just go for it and go for the most liberal justice you can get. So they've been disappointed today.
And the kinds of emails that we're all getting in our inboxes from liberal groups are quite lukewarm saying, while we look forward to listening to her throughout the hearings, I think that all of that reaction from the left is a great thing for the White House politically. I think they welcome it. This is a White House that often has worn, as a badge of honor, criticism from the left. It kind of helps position them where they want to be, in the center.
I think in the end, you're not going to get Democratic liberals in the Senate voting against her. But what is going to be interesting, all these nominating processes are a battle for defining who the person is. And the nominee himself or herself tries to say as little as possible to define himself or herself in any direction. But there's going to be a big push from the right to define her as a liberal, as somebody who advocated strongly for gay rights when she tried to bar the military recruiters at Harvard.
But it's interesting, she herself, among the very few opinions that she has ever issued, expressed, she said that the nominating process was vapid and she said it was terrible because nominees don't say anything and senators just posture. I'm sure she will be very politely offered a chance to break from that stultifying tradition and say something more forthcoming and revealing about herself. And I'm sure she will politely decline.
CONAN: And on her behalf, President Obama has already spoken on the controversial Mets-Yankees issue.
(Soundbite of laughter)
CONAN: But nevertheless, Ron Elving, reaching out to conservatives as dean of the Harvard Law School, maybe not consensus building on the Supreme Court in the foreseeable future, in the next couple of years, but should be a benefit when it comes to a vote before the United States Senate.
ELVING: It should be. It should be the kind of thing that can be worn as a badge of honor and she should have some friends. In fact, among the Republican senators who respect what she did as the Law School dean at Harvard - this was one of the bases on which she has established friendships of a kind, a professional kind with some of the conservative members of the Supreme Court.
Antonin Scalia, for example, John Roberts, Samuel Alito, these are people who she knows. These are people she has matched wits with, both as solicitor general and in some of her other capacities. And so, she is a known quantity to these people and they respect what she did at Harvard. A lot of these people went to Harvard or have taught at Harvard. They have a kind of relationship with that faculty, which is a, you know, powerhouse faculty and a, if you will, a storehouse of legal wisdom and acuity for the entire legal community.
So, this was a big job. It was a kind of precursor job to the responsibilities that she has had since. And she passed that test with flying colors from the standpoint of conservatives. That should give her a reservoir of goodwill as it has, in fact, on the Supreme Court itself. And it should help her get a relatively smooth nominating hearing and nominating vote in the Senate.
But again, I have to say, as we did at the top of the show, this is not a normal United States Senate. This is not a typical or historically normative United States Senate. There is a grip of fear right now on a lot of the Republican senators that they cannot afford to be seen as accommodating to this president or to the Democrats in the majority or to liberalism in any way, shape or form, even to a small degree.
CONAN: So it'd be interesting to look at, for example, how Lindsey Graham, the senator Republican from South Carolina, might treat her. He's a member of the Senate Judiciary Committee and somebody who's been under pressure under some of those exact things, but has worked with Democrats in the past.
ELVING: And she got seven votes when she was nominated for solicitor general. She got seven votes from Republicans on the Judiciary Committee on the floor of the Senate when she was confirmed. Thirty-one Republicans voted against her, but seven voted for her. It will be fascinating to see the reasons put forward by those seven, or some of those seven, if they then vote against her for the Supreme Court.
CONAN: Thirty-one happen to be the number of Republicans who also opposed Sonia Sotomayor a year ago and may be predictive. But going back to those conservative appointments, Mara Liasson, some of them included lawyers who worked for the most recent Bush administration on some very controversial issues. And indeed, this is another source of criticism from the left that she hired people, some who would consider war criminals.
LIASSON: That's right. One of the biggest flashpoints between the left and this administration is on foreign policy. Not so much foreign policy but national security policy and, you know, how you treat terrorist defendants and detainees. And I think that that is going to be a big point of criticism from the left.
But I really wonder who in the Senate is going to take up that banner. I mean, there has to be some senator to press that case, if that's going to be part of the conformation hearings. And I can see who that would be.
ELVING: Possibly Russ Feingold. Is there a possibility? He's on the committee.
CONAN: He's on the committee as well. Joining us now is Ari. No, we don't have Ari, yet. We're hoping to get Ari Fleischer in just a moment who's at the event earlier today at the White House. He'll be joining us shortly.
But in any case, going back to this question. Nina Totenberg, our esteemed colleague, has pointed out John Paul Stevens is the last of the justices to come from the Western part of the United States, that this is now would be, if Elena Kagan is confirmed as a justice of the Supreme Court, very much a northeastern Supreme Court. Indeed four of the five boroughs of the city of New York would be represented on the United States Supreme Court.
(Soundbite of laughter)
ELVING: So the boroughs of New York are better represented than the regions of the country. No question about it, you know, this is not a brand new criticism of the Supreme Court. It certainly goes back to our history that it was way too eastern in its orientation, although the famous leaders of the court have oftentimes come from either the West or the Midwest. Recently Warren Burger, Earl Warren, both were from west of the Mississippi and even John Roberts, now the chief justice. He's originally from the Midwest, although he's so associated with...
CONAN: Washington, D.C.
ELVING: ...exclusive institutions of the Northeast. Now that it's hard to still fill Indiana in there. But this is part, if you will, of the elitism of the court that has emerged in recent years, where we have gotten people who have been not just judges but federal judges and at the highest levels of the federal appeals court system. That has become the farm team to which presidents of both parties have looked to stock the court.
So we haven't seen the political base. We haven't seen governors and senators being nominated. They've all been judges. And, in fact, if Kagan is confirmed, she will be the only person on the court that didn't come there from a bench.
LIASSON: Although her experience doesn't really offer much of a counterpoint to that. She comes from the same basic elite...
LIASSON: ...liberal kind of northeastern academic training ground. Sandra Day O'Connor also was another Westerner who's gone. But it is really interesting. The court is getting more and more homogeneous partly because of the decisions of Barack Obama, the great diversity president, which is kind of ironic.
(Soundbite of laughter)
ELVING: And himself a Midwesterner who has been introduced to the country mostly through the elite institutions of the northeast.
CONAN: Well, joining us now is Ari Shapiro, NPR White House correspondent. Prior to that, I can disclose, Justice Department correspondent, so with some familiarity with this nominee in both of those capacities. Ari, nice to have you with us.
ARI SHAPIRO: Hi, Neal, good to be with you.
CONAN: And you've seen some of her work as solicitor general of the United States. And for those who don't know that position, this is the person who goes in and argues before the Supreme Court on behalf of the government. And how has she done in that capacity?
SHAPIRO: Well, one of the striking things about her as solicitor general is that many people who occupied that role had lots of experience arguing before judges, maybe even before the Supreme Court.
Elena Kagan had none. And so when she first appeared before the Supreme Court, people were very eager to see how she would do her first time out. And she looked really comfortable. She had a great rapport. You know, the justices can be very aggressive in their back and forth with a lawyer arguing in front of them. She was, you know, like a pro playing tennis with them.
And so, the sense is that she has a good rapport with the eight people who she'll be joining on the court if confirmed and that might help, as some people have talked about, her efforts to bring consensus, bring liberals and conservatives together, perhaps sway Justice Anthony Kennedy who's sometimes a swing voter to join the liberal minority.
CONAN: And as she continues in this role, you were there at the White House, has there been any indication of how the White House plans, what did you glean from the way the president presented her today and from what others at the White House, how are they presenting her as to how this campaign - and there's no other way to describe this - but the campaign for confirmation will be conducted?
SHAPIRO: Well, the two themes that stood out to me in the president's comments were her understanding of how the law applies to real people, which is a theme that President Obama has hammered away ever since he began talking about Supreme Court nominations before he nominated Sonia Sotomayor.
But then the other thing that he emphasized with Kagan was her ability to bridge differences, to bring conservatives and liberals together. He talked about how, as dean of Harvard Law School, she helped diversify the faculty. In fact, one member of that law school faculty Jack Goldsmith was there in the audience today. He was a senior official in the Bush Justice Department. And when Elena Kagan brought him on at Harvard, there were protests from liberal faculty members and students. She really stood up and defended him. And so, he was there in the audience today as, I think, sort of an embodiment of the theme that President Obama was talking about in his comments.
CONAN: There is another issue that came up in a blog, I believe, on CBS and that was that if confirmed, this was the report on the blog, Elena Kagan would be the first openly gay member of the United States Supreme Court. The White House came out with a quick and complete denunciation of that.
SHAPIRO: Right. She's not married. Friends of mine who work with her at Harvard, who worked with her at Harvard, friends of mine who are gay and lesbian who are at Harvard say if she's lesbian, they're not aware of it. They have no reason to believe that she is lesbian. I have no reason to believe that she is either.
CONAN: And there's no reason to believe that should play a part in this conversation. Nevertheless, it is something that is going to be a part of the undercurrent, particularly given her stance on don't ask don't tell, one of the few issues on which she has taken an absolutely firm stance saying she considered that policy an outrage.
SHAPIRO: That's right. She said she considered it an outrage in the context of a battle between law schools and the military over the law schools' nondiscrimination policies. Any law school that joins the National Association of Law Schools has to sign onto an agreement saying they will not allow recruiters on campus who discriminate on the basis of gender, race, religion and sexual orientation.
Well, they consider the military an employer recruiting on law school campuses. And because the military discriminates on the basis of sexual orientation, Dean Kagan at Harvard and others said, this is not compatible with our nondiscrimination policy. We have to keep military recruiters off campus. She took a very strong stance on that and lost. And it is one of the things that Republicans will point to as a reason that some of them will vote against her.
CONAN: Yet there was a law, the Solomon Amendment, which was passed by Congress saying you either accept military recruiters or you lose your federal funding. She opposed that amendment, lost before the Supreme Court. And, of course, this came up in her hearing to be confirmed as solicitor general.
SHAPIRO: That's right. And the key was that it was not federal funding just for the law school, it was for the entire university. And so, hospitals, research centers, other university-affiliated institutions that receive millions of dollars in federal money could have been jeopardized by keeping military recruiters off campus. And as you say, she lost and that fight has dogged her ever since.
CONAN: And so, in her nomination and in her hearing to be solicitor general, she said as an advocate for the United States government, if she was required to argue on behalf of the Solomon Amendment, she would do so happily before the Supreme Court. So, that definitely will come up again.
Mara Liasson, as you're looking at this political landscape, the campaign to have her nominated, again, the president and the vice president will seek to present her in a certain light, their opponents in another. What are going to be the distinguishing characteristics, do you think?
LIASSON: Well, I think that obviously her opponents are going to try to present her as too far out of the mainstream and that she's too liberal and that she is anti-military. I'm already getting emails suggesting that. And you're going to - you heard a little preview of how the White House plans to present her - open minded, fair minded, consensus builder, has a background that allows her to be empathetic with ordinary people.
I'm thinking about this fight also in a bigger context. I mean this is happening just a couple of months before midterm election, where the Democrats are facing the prospect of huge loses. And I don't think that short-term political gain really is what presidents think about when they nominate a Supreme Court justice.
But she will become fodder for the fight that's already brewing. I mean, conservative groups are going to use her nomination to get their troops energized. Usually it's only activists on the left and the right that care about these nominations.
And also, this is the kind of thing, if it gets contentious, unlike Sonia Sotomayor which was almost 100 percent positive political thing for the White House because she was the first Hispanic justice. I think this does have the potential - there's nothing the president could do about it - to kind of take energy away from the topic that he wants to talk about now, which is the economy and jobs and how the economy is getting. So you've got this thing, you know, it's just by its nature a distraction.
CONAN: Ari, is there something, because of her job as solicitor general, that she might have to recues herself from, take her out, not participate in either the arguments or in the opinions of any issues that come up before the Supreme Court?
SHAPIRO: Yeah, I think it's safe to say that assuming she is confirmed by the beginning of next term, which there's no reason to believe she wouldn't be, that there will be things in the pipe coming up to the Supreme Court that she may have worked on as solicitor general. And obviously, she would have to recuse herself from those things, but that's not unusual.
When Chief Justice John Roberts took the seat on the High Court, he was coming from the D.C. Circuit Appeals Court and there were cases, including one very important case involving executive authority in Guantanamo detainees that Chief Justice Roberts had to recuse himself from. So that's not terribly unusual.
CONAN: And, Ron Elving, as we look ahead again to - this is a political year. All the members of the House of Representatives are running for reelection, a third of the members of the United States Senate. You pointed out earlier the situation regarding the Senator Bennett in Utah that he lost his chance to be even on the primary ballot because of the tenor of the times, if you will. And in that context, as we look ahead to a very contentious summer, where is this battle going to play out?
ELVING: I think the battle will play out, first, of course in the Judiciary Committee and then on the floor of the Senate, where there exists the possibility, but no one has mentioned it up to now. But I think we should recognize that the Republicans in the Senate have been routinely filibustering or, if you will, threatening to filibuster which results in, we've already had well over 150 cloture votes in this Congress. Not that long ago, you would have single digits per year cloture votes.
This is a filibuster-ridden Congress. And the Democrats, while they have an overwhelming majority, do not have 60 votes. They cannot cut-off debate with their votes alone. So if the Republicans were to choose to filibuster this nomination, there would have to be at least one Republican defector to defeat that filibuster. Now we don't necessarily know that there is commitment to filibuster or even a strong interest in filibustering on the part of the Republicans, but they could.
And if something should emerge, let me throw out the example in the Sotomayor case of the, quote, "wise Latina," unquote, remark that she had made in a speech and averring at the time that she would hope that a wise Latina would make a better decision than a, perhaps, other kind of person, gender-wise, ethnicity-wise. If something like that (unintelligible) about Kagan and they decided to dig their heels in, a filibuster is a possibility.
CONAN: Well, thank you very much, Ron Elving, senior Washington editor. Thanks as well to Mara Liasson, national political correspondent and to White House correspondent Ari Shapiro.
You're listening to SPECIAL COVERAGE from NPR News.