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Kagan would emphasize Supreme Court moving in new direction

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The Washington Post's Robert Barnes discusses Solicitor General Elena Kagan's non-judicial background and looks ahead to the confirmation hearings on Capitol Hill.

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By Anne E. Kornblut and Robert Barnes
Washington Post Staff Writers
Tuesday, May 11, 2010

With his second Supreme Court nomination in as many years, President Obama has laid down clear markers of his vision for the court, one that could prove to be among his most enduring legacies.

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Together with Justice Sonia Sotomayor, Elena Kagan's confirmation would represent a shift toward a younger, changing court, one that values experiences outside the courtroom and emphasizes personal interactions as much as deep knowledge of the law.

Kagan, 50, the solicitor general named to replace outgoing liberal Justice John Paul Stevens, would not immediately alter the ideological balance of the bench. But her addition would almost certainly provide a lasting, liberal presence, and administration officials hope she would, in the words of one, "start to move the court into a different posture and profile."

Sen. Jeff Sessions (Ala.), the top Republican on the Senate Judiciary Committee, was quick to highlight her "lack of judicial experience and short time as solicitor general," while other conservatives pointed to her long list of Democratic connections.

Rep. Lamar Smith, the ranking Republican on the House Judiciary Committee, said Kagan will have to show "that she was not chosen by the president as a political ally who will rubber-stamp his agenda -- but as an impartial jurist who will uphold the Constitution's limits on the proper role of the federal government and defend the liberties of everyday Americans."

Kagan's elevation would also put three women on the court at once, something that was even more of a priority for Obama during the most recent selection process than some of his aides had realized. "People thought about that pretty hard," one senior adviser said, adding that the president was eager to be the first in history to name two successive women.

Yet if there is an aim in crafting an "Obama court" -- and advisers are preparing for the possibility of a third vacancy, which could make his imprint even more indelible -- it is to move the bench further in the direction of considering the impact of its rulings. Obama said as much Monday, praising Kagan during an East Room nomination ceremony as someone who has an "understanding of law, not as an intellectual exercise or words on a page, but as it affects the lives of ordinary people."

In just two years, Obama has had the ability to add two justices, the same number George W. Bush had in two terms. The president believes, according to his advisers, that, although Kagan has never been a judge, she would be able to play an "outsize role" on the bench by swaying her colleagues when opinion is divided.

Richard W. Garnett, a professor and associate dean of the University of Notre Dame Law School, said Obama was poised to make a lasting impact on the court.

"The notion that he is just replacing one member of the so-called liberal wing with another, I think, is superficial," said Garnett, who was a clerk for former Chief Justice William H. Rehnquist. Because he is replacing liberal justices with like-minded nominees at least a generation younger, "President Obama has a chance to entrench his view of the Constitution for many years to come.

White House officials said Obama phoned Kagan at 8 p.m. Sunday to inform her of his choice, then called the other contenders. At 8:30, he called Senate Majority Leader Harry M. Reid (D-Nev.), Senate Minority Leader Mitch McConnell (R-Ky.) and Judiciary Committee Chairman Patrick J. Leahy (D-Vt.).

Obama had settled on Kagan relatively early, said sources familiar with the process, who spoke on the condition of anonymity before the decision was announced.


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