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In Kagan, Obama picks a nominee, not a fight

By Dana Milbank
Tuesday, May 11, 2010; A02

President Obama's announcement in the East Room that he had nominated Elena Kagan to the Supreme Court was perfectly boring -- and that's what makes her such a bold choice.

A year ago in that same room, there was a festive atmosphere as Obama stood next to Sonia Sotomayor, the sharp-tongued jurist with the up-from-poverty life story who would become the first Hispanic justice.

On Monday morning, by contrast, there was a sea of mostly white faces and gray hair as Obama stood next to a candidate not from the Bronx but from the Upper West Side. Kagan wasn't the first woman to be named to the high court. She wasn't the first Jew. She wasn't even the first Jewish woman. She was just another former Supreme Court clerk and product of the Ivy League (Princeton, Harvard Law, dean of Harvard Law).

Nominating Kagan, therefore, required some courage. Obama defied those populists who said he should reach beyond the Eastern elite for somebody with more "real world" experience. He defied liberal interest groups -- his own base -- that favored a more ideological liberal, such as Judge Diane Wood. Instead, he chose brain over bio, sending to the Senate neither a compelling American story nor a liberal warrior but a superbly skilled, non-ideological builder of bridges.

Kagan wore green -- the color of the olive branch -- as she told the East Room audience of her experience wooing conservatives at Harvard Law. "I had the privilege," she said, "of working there to bring people together."

Obama was more explicit. "At a time when many believed that the Harvard faculty had gotten a little one-sided in its viewpoint, she sought to recruit prominent conservative scholars and spur a healthy debate on campus," he said.

The nomination poses a challenge to Senate Republicans to see whether they can recognize Obama's conciliatory gesture and move beyond reflexive opposition. Conservative interest groups have already begun to holler about how Kagan plans on "reshaping the court" with a "leftist legacy."

That's nonsense. True, Kagan comes from the liberal side. (Was anybody expecting Obama to nominate a member of the Federalist Society?) But she is certainly not the nominee liberal groups wanted. Though the interest groups, now noncommittal, have little choice but to fall in line, writers at liberal outfits have called her an "ideological cipher" (Mother Jones) and a "seemingly principle-free careerist" (Salon).

One smart conservative activist, Manuel Miranda of the Third Branch Conference, gave Obama credit for disappointing the left: "The president must be commended for shunning left wing activists who demanded that he select a Supreme Court nominee who could promise results for the clients that fund their advocacy. He selected a perfectly reasonable nominee for a Democratic president."

Only in the current political atmosphere could "perfectly reasonable" be grounds for activists on both sides to oppose her. This reporter came across Kagan a dozen years ago when she was a mid-level official in the Clinton White House negotiating tobacco legislation with Republican lawmakers. The resulting article on Kagan, then 38, appeared in the New Republic:

"Kagan uses knowledge as a weapon, absorbing thousands of pages of legal and policy minutiae and then deploying information to beat down opposing arguments. 'I don't want to tell you that she rolled me, but she was coming at me so hard,' says a Hill negotiator who opposed Kagan in much of the negotiation. 'She reminds me of Bobby Knight's old University of Indiana basketball teams that used to wear you down with defense.' "

Regardless of any on right and left, that intellectual firepower should assure Kagan a comfortable confirmation. And the lack of suspense about the outcome may have contributed to the no-drama feeling in the East Room on Monday.

Though top White House aides packed the room for the Sotomayor announcement, they were relatively scarce for Kagan. Chief of Staff Rahm Emanuel walked in midway through Kagan's speech, grabbed a seat in the last row and examined his BlackBerry.

Obama, after introducing his nominee, bestowed an awkward kiss on her cheek; she turned her head to one side, then quickly to the other, to avoid the dreaded touching of lips. The president also did his best to add some color to Kagan's bio. He noted that Kagan, who barely reached shoulder level on Obama and stood on a box to address the gathering, was dubbed "Shorty" by the late Thurgood Marshall.

A year ago, Obama and Sotomayor got plenty of laughs talking about her beloved New York Yankees. Obama tried to revive the baseball talk this time, saying Kagan's "appreciation for diverse views may also come in handy as a die-hard Mets fan serving alongside her new colleague-to-be, Yankees fan Justice Sotomayor."

But the notion of Kagan as a die-hard sports fan wasn't convincing. And Kagan, when her turn came, didn't even try for humor. She mentioned her respect for the retiring Justice John Paul Stevens and a "touch of sadness" that her parents didn't live to see the day.

In the audience, Obama aide Samantha Power brushed a tear from her cheek. But the president and his no-drama nominee remained dry-eyed. When Kagan finished, Obama congratulated her again -- this time with a handshake.

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