What Obama sees in Kagan

By Michael D. Shear
Washington Post Staff Writer
Monday, May 10, 2010; 6:29 AM

It's Kagan!

Why is President Obama choosing his solicitor general, Elena Kagan, as his second nominee to the U.S Supreme Court? By all accounts, Obama wants someone who can serve as a counterweight to the intellectual heft of Chief Justice John Roberts. Regardless of how strong a liberal Kagan would prove to be, as a former dean of Harvard Law School, Kagan practically defines legal gravitas.

She's also a female, which adds to the court's gender diversity. She's young, at 50, which means she could be on the court for a quarter century. And she's never been a judge, which gives her a quality that Obama is known to have been seeking: someone to bring a different sensibility to a court that's currently dominated by judges.

That particular lack of experience also means she does not have a long record of controversial rulings that could provide fodder for the presidents political opponents.

On the other hand, Kagan is by no means a radically different pick from any of the court's current members. In some ways, she would add to the cloistered, East Coast mentality of the current court. Her lack of judicial experience could be a negative, especially with a public that thinks being a judge is pretty important.

Many of the current justices hail from New York, or have ties to the city. All but one are from east of the Mississippi River. Picking Kagan does not send a message that Obama wants the court to represent the country better geographically.

How will it be formally announced?

NBC first reported the pick around 10 p.m. last night, followed by the Post and other news organizations. All the reports were attributed to unnamed sources with some knowledge of the process.

Now, all eyes are on the White House, which is expected to make it official some time this morning.

Best guess as to how it will unfold: Look for a tweet from press secretary Robert Gibbs that a presidential announcement is coming.

Once that happens, there will be a brief period during which the press scrambles to get to the White House.

Last year, Sonia Sotomayor's name leaked out about an hour before she was formally introduced in an East Room ceremony.

What will Obama say in his announcement?

Obama most likely will talk a lot about bipartisanship. The White House and the Democrats on the Hill are not looking for a huge fight just before the midterm elections, so there's a hope that the nominee will not spark the kind of rigid, unified opposition that the Republicans have offered this year in other contexts.

[On the other hand, there are some Democrats who believe that baiting conservatives into a fight, especially on a subject like abortion, could only be good for their party. The theory goes that the GOP would whip themselves into a frenzy, forgetting to campaign on health care or jobs or the economy.]

Obama may also talk about conservative activism, something he has spoken publicly about and talked privately about with senators. He argues that the usual GOP critique of liberal judges as activists should be applied to the current, conservative Supreme Court, which he says has been actively pushing a conservative agenda from the bench.

And expect the president to talk about the need to understand regular people. Last year, he talked about it by saying a nominee should have "empathy." That caused quite a stir among conservatives who saw that as code for ruling on your feelings, not on the law.

This time, he's talked about wanting a judge who understands the "daily lives" of regular Americans. Whether Kagan --

whose former job at Harvard Law School could mark her as the ultimate Ivory Tower elite -- is that person or not remains to be seen. But look for Obama to talk about wanting that quality anyway.

What happens next?

The spinning begins. From the White House will come a flurry of information about the nominee's background. Very soon after that -- like, within minutes -- the activist groups allied with the White House will have their statements out, touting Kagan and her qualifications.

Look for Vice President Biden to play a large public role and an even larger private one, lobbying his former colleagues on the Judiciary Committee. Biden is a veteran of the confirmation process dating back decades.

But just as quickly as the supporters sound off, look for the opponents to be very visible too. There's an entire industry of anti-court nominee groups out there who will be ready with what amounts to opposition research on Kagan.

How long will it go on?

The idea at both ends of Pennsylvania Avenue is that the process should take about 6 to 7 weeks, leading to a hearing at the Judiciary Committee and a quick vote in early July. That leaves plenty of time for the back and forth, but also plenty of time for Kagan to take her seat on the court before the next year's session starts.

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