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Kagan is nominee, Democrats say

Obama to announce high court choice today

By Peter Baker
New York Times / May 10, 2010

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WASHINGTON — President Obama will nominate Solicitor General Elena Kagan as the nation’s 112th justice, choosing his own chief advocate before the Supreme Court to join it in ruling on cases critical to his view of the country’s future, Democrats close to the White House said yesterday.

After a monthlong search, Obama informed Kagan and his advisers yesterday of his choice to succeed the retiring Justice John Paul Stevens. He plans to announce the nomination at 10 a.m. today in the East Room of the White House with Kagan by his side, said the Democrats, who insisted on anonymity to discuss the decision before it was formally made public.

In settling on Kagan, the president chose a well-regarded 50-year-old lawyer who served as a staff member in all three branches of government and was the first woman to be dean of Harvard Law School. If confirmed, she would be the youngest member and the third woman on the current court, as well as the first justice in nearly four decades without any prior judicial experience.

That lack of time on the bench may both help and hurt her confirmation prospects, allowing critics to question whether she is truly qualified while denying them a lengthy judicial paper trail filled with ammunition for attacks. As solicitor general, Kagan has represented the government before the Supreme Court for the past year, but her own views are to a large extent a matter of supposition.

Perhaps as a result, some on both sides of the ideological aisle are suspicious of her. Liberals dislike her support for strong executive power and her outreach to conservatives while running the law school. Activists on the right have attacked her for briefly barring military recruiters from a campus facility because the ban on openly gay men and lesbians serving in the military violated the school’s antidiscrimination policy.

Replacing Stevens with Kagan presumably would not alter the broad ideological balance on the court, but her relative youth means that she could have an influence on the court for decades to come, underscoring the stakes involved.

In making his second nomination in as many years, Obama was not looking for a liberal firebrand as much as a persuasive leader who could attract the swing vote of Justice Anthony M. Kennedy and counter what the president sees as the rightward direction of the court under Chief Justice John G. Roberts Jr. Particularly since the Citizens United decision invalidating on free speech grounds the restrictions on corporate spending in elections, Obama has publicly criticized the court, even during his State of the Union address with justices in the audience.

As he presses an ambitious agenda expanding the reach of government, Obama has come to worry that a conservative Supreme Court could become an obstacle down the road, aides said. It is conceivable that the Roberts court could eventually hear challenges to aspects of Obama’s health care program or to other policies like restrictions on carbon emissions and counterterrorism practices.

With all signs pointing to a Kagan nomination, critics have been preemptively attacking her.

Paul Campos, a law professor at the University of Colorado at Boulder, writing on The Daily Beast, compared her to Harriet E. Miers, whose nomination by President George W. Bush collapsed amid an uprising among conservatives who considered her unqualified and not demonstrably committed to their judicial philosophy.

M. Edward Whelan III, president of the Ethics and Public Policy Center in Washington, wrote on National Review’s website that even Kagan’s nonjudicial experience was inadequate. “Kagan may well have less experience relevant to the work of being a justice than any entering justice in decades,’’ Whelan wrote.

Kagan defended her experience during confirmation hearings as solicitor general last year.

“I bring up a lifetime of learning and study of the law, and particularly of the constitutional and administrative law issues that form the core of the court’s docket,’’ she testified. “I think I bring up some of the communications skills that has made me — I’m just going to say it — a famously excellent teacher.’’

Kagan was one of Obama’s runners-up last year when he nominated Sonia Sotomayor to the court, and she was always considered the front-runner this year. The president interviewed three other candidates, all federal appeals court judges: Merrick B. Garland of Washington, Diane P. Wood of Chicago, and Sidney R. Thomas of Montana.

Kagan had several advantages. For one, she works for Obama, who has been impressed with her intelligence and legal capacity, aides said, and she worked for Vice President Joe Biden when he was a senator. For another, she is the youngest of the four finalists, meaning she would most likely have the longest tenure as a justice.

She also was confirmed by the Senate just last year making it harder for Republicans who voted for her in 2009 to go against her in 2010.

The president can also say he reached beyond the “judicial monastery,’’ although picking a solicitor general and former Harvard law dean hardly reaches outside the Ivy League, East Coast legal elite. And her confirmation would allow Obama to build on his appointment of Sotomayor by bringing the number of women on the court to its highest ever (three, with Sotomayor and Justice Ruth Bader Ginsburg).

Strategists on both sides anticipate a fight over Kagan’s confirmation but not an all-out war.