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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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Kagan does not have an extensive record of statements, speeches, writings or decisions for critics and supporters to study. That gives potential allies and adversaries an opportunity to shape the public's view of her life and career.

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Administration officials declined Monday to be drawn into any discussion of Kagan's personal life. Asked whether questions about her sexuality would be off-limits during the confirmation process, White House press secretary Robert Gibbs replied, "It's not anything I'm going to get into." Last month, the White House blasted CBS News for publishing a blog report that conjectured about Kagan's sexual orientation; an administration official told The Washington Post that Kagan is not a lesbian.

Meanwhile, the Associated Press turned up a 1997 memo that revealed Kagan urging then-President Bill Clinton to support a ban on late-term abortion. Kagan and Bruce Reed, her boss in the White House domestic policy office, told Clinton that he should support the ban in a legislative compromise; the compromise failed, and he vetoed a stricter Republican ban. The document came from Clinton's presidential library in Little Rock.

Anticipating the possibility of a ferocious debate about Kagan, top White House aides moved swiftly to begin framing the narrative about her life and what kind of justice she would be.

Ron Klain, chief of staff to Vice President Biden, said Kagan will start making courtesy calls on Capitol Hill this week.

Kagan's personal story, much like Obama's own, is somewhat removed from the lives of Middle America. She was raised on the Upper West Side of New York, graduated from Princeton and served as Harvard's dean. She worked in the Clinton administration and recently for Obama.

If she is confirmed, the court would be filled with justices who attended law school at either Harvard or Yale, although Justice Ruth Bader Ginsburg graduated from Columbia Law School. And because Kagan is Jewish, for the first time in its history, the court would be without a Protestant justice: It would be composed of six Catholics and three Jews.

There are similarities between Sotomayor and Kagan: Both women are New Yorkers who were educated at Ivy League universities, are in their 50s, unmarried and have no children.

But Sotomayor was a prosecutor and corporate lawyer before becoming a judge, while Kagan comes from a world of academia and government service. Kagan describes herself as an "excellent" teacher and a consensus-builder among the fractious faculty of Harvard Law School, where she won praise from conservatives and liberals.

Perhaps more important to White House officials is her background as a policymaker in the Clinton White House. Obama described her as "a former White House aide with a lifelong commitment to public service and a firm grasp of the nexus and boundaries between our three branches of government."

Said William Galston, who preceded Kagan as a domestic policy assistant to Clinton: "What she would do is a bring a multifaceted understanding of the executive branch." He added: "She knows exactly how it functions and how it reacts to the other two branches. I do think that's a very useful experience for a member of the court to have."

One issue for Kagan would be how many cases from which she would need to recuse herself. As solicitor general, she is the lawyer who decides how to handle all of the government's appeals at all judicial levels, not just the Supreme Court. She would have to stay out of cases in which she had played a role in lower courts.

Klain said Kagan would probably recuse herself from about a dozen cases in the upcoming term and five in the following term.

Staff writer Michael D. Shear contributed to this report.


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