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Elena Kagan said to be Obama's Supreme Court pick

By Robert Barnes and Anne E. Kornblut
Monday, May 10, 2010; A01

President Obama plans to nominate Solicitor General Elena Kagan to be the 112th justice of the Supreme Court, sources said late Sunday night.

Kagan, 50, the former dean of Harvard Law School, would become the fourth woman to serve on the high court; if she is confirmed, the nine-member court will have three female justices for the first time.

In replacing Justice John Paul Stevens, Obama would also be breaking with tradition. Every other member of the court is a former federal appeals court judge, and Kagan has never served in the judiciary. The last time a non-judge was appointed was in 1972, when President Richard M. Nixon nominated William H. Rehnquist and Lewis Powell in the same year.

Kagan is the government's top appellate lawyer and representative at the Supreme Court. She was confirmed last year by the Senate in a 61 to 31 vote, and was the first woman confirmed to hold the job.

The choice was first reported by NBC News.

Obama considered about 10 people for the job. He and Vice President Biden interviewed three others, all federal appeals judges: Merrick Garland of the District of Columbia; Diane Wood of Chicago; and Sidney Thomas of Montana, who serves on the 9th Circuit in San Francisco.

It is Obama's second nomination to the court; last year, he chose the first Latina justice, Sonia Sotomayor of New York. Sotomayor joined the court in August and serves along with Justice Ruth Bader Ginsburg, who was chosen by President Bill Clinton and became the second woman to join the court in 1993.

Kagan was not seen as the most easily confirmed among that group, but no substantial problems are foreseen for her nomination.

She is known to be circumspect with her personal views and has no public record on some of the hot-button social issues -- such as abortion and gun control -- that have dominated past confirmation hearings. In fact, it is her lack of a record that has led some liberal activists to warn that Obama should not take a chance on her. But she has served in the Obama administration for more than a year and worked in the Clinton White House before that, and she has some powerful allies who have vouched for her.

She and Wood were finalists for the job last year, along with Homeland Security Secretary Janet Napolitano.

Conservatives have said the most controversial issue in her past was her belief that the military's "don't ask, don't tell" policy meant recruiters on campus would violate the Harvard Law School's anti-discrimination policy. Other law schools felt the same, but they were unsuccessful at the Supreme Court. The court said Congress could withhold federal funding from universities that did not accommodate military recruiters.

Critics also say that Kagan would bring less legal experience to the job than any of her recent predecessors. She worked two years as a private lawyer, with the rest of her career in government and academia. She was chosen by Clinton for a spot on the U.S. Court of Appeals for the District of Columbia Circuit when she was 39, but the Republican-controlled Senate did not bring her nomination to a vote.

The lack of judicial experience may be a negative in terms of the public's reaction to the pick. In the latest Washington Post-ABC News poll, seven in 10 Americans said service as a judge is a factor in favor of a nominee, the most to say so on any attribute tested in the poll.

Polling director Jon Cohen contributed to this report.

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