washingtonpost.com
Kagan would emphasize Supreme Court moving in new direction

By Anne E. Kornblut and Robert Barnes
Washington Post Staff Writers
Tuesday, May 11, 2010; A07

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.

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.

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.

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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