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For the court, a broker’s skills

By Susan Milligan and Alan Wirzbicki
Globe Staff | Globe Correspondent / May 11, 2010

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WASHINGTON — The White House is counting on Supreme Court nominee Elena Kagan to use her influential voice, intellectual heft, and knack for building consensus to help keep the high court from shifting to the political right, Democrats say.

Legal analysts and activists, however, caution it is too early to determine how Kagan, who has no judicial experience, would affect the general direction of the Supreme Court or even how she would rule on specific issues such as free speech rights and detainee treatment.

The man she would replace, retiring Justice John Paul Stevens, is considered a liberal icon on the court, which has moved to the right with the appointment of five justices by Republican presidents since 1986. Kagan, who has served both the Obama and Clinton administrations, would probably not shift the ideological balance of the court, said Ron Klain, chief of staff for Vice President Joe Biden.

However, Kagan, like Stevens, could end up as a key broker on certain cases, using the same skills her advocates say she displayed in bringing peace to Harvard Law School’s notoriously feuding faculty.

“She herded some of the wildest cats in the land’’ in Cambridge, said L. Kinvin Wroth, a law professor and former dean of Vermont Law School. “Much of what is attributed to Justice Stevens is his skills of persuasion and accommodation within the court to bring, on occasion, a majority [over] to his view.

“If she brings those skills and viewpoint to the inside role of justice, that may be the strongest contribution any member of the court could make,’’ Wroth said.

Democrats hope that trait becomes a crucial tool to keep Justice Anthony Kennedy, the swing vote on a closely divided court, from siding more frequently with his more conservative brethren.

Daniel Farber, a professor of law at the University of California, Berkeley, who served as a clerk to Stevens, said Kagan could be even better suited for the role of consensus-builder than his former boss.

“If you look at his early years on the court, he was really much more of a maverick. It took him time to find that role as a consensus-builder,’’ Farber said.

“I think that she’s not going to have any trouble working with people like [Samuel] Alito and [John] Roberts, and maybe even [Clarence] Thomas,’’ Farber said, ticking off three of the high court’s most conservative members.

Klain, while noting that Kagan had earned respect from both liberal and conservative scholars and politicians, called her “someone who comes from the progressive side of the spectrum.’’

But that would not guarantee she would mirror the president’s position on crucial cases. “The president did not seek, and did not get, any sorts of views from her on specific cases or specific legal issues,’’ Klain told a small group of reporters at the White House.

Since Kagan has no trail of judicial decisions to dissect, it is not certain how she might rule on many issues. A number of justices in history — including Stevens, who was appointed by President Ford, a Republican — have built judicial legacies distinct from the views of those who appointed them. Kagan is no exception, activists and officials said.

“She doesn’t come in with any sort of well known, overarching judicial philosophy,’’ said Jack Beermann, professor of law at Boston University. But if Kagan forges a role as consensus-builder, “the court runs more smoothly, it resolves more issues in a better way when it’s less fractured. Insofar as she’s a person who will look for common ground, it’s a good thing for the court,’’ he said.

Sonja R. West, assistant professor of law at the University of Georgia and also a former clerk for Stevens, said building coalitions among fiercely independent justices would be a considerable challenge for even the most talented newcomer.

“It would be difficult if not impossible for any rookie justice to come in and fill the shoes of a 35-year veteran in Justice Stevens,’’ she said. “Earning the respect of your colleagues is a process that takes time.’’

Kagan will need to recuse herself from some cases — assuredly those for which she signed a brief advocating a position or helped develop the government’s position. Klain said he expected she would be forced to sit out about a dozen cases in the upcoming term and about five cases in the subsequent term. He said he did not know what Kagan’s involvement has been in the development of health care legislation, so he could not comment on whether she would have to recuse herself on any cases challenging the constitutionality of the new law.

Some civil libertarians are unhappy with the Kagan pick, pointing to her writings and statements that suggest she has what George Washington University law professor Jonathan Turley called a “very fluid’’ view of the First Amendment. That perspective, Turley said, could tip the court to the right on matters involving hate speech.

Further, liberals are unhappy with comments Kagan made during her 2009 solicitor general confirmation hearings, when she endorsed indefinite detention of suspected terrorists in some cases.

“For civil libertarians, the nomination is nothing short of a thumb in the eye,’’ Turley said.

Conservatives, meanwhile, are unhappy with Kagan’s decision as Harvard Law dean to bar military recruiters from part of the campus. The ban — ultimately lifted — was based on the determination that the Pentagon’s “don’t ask, don’t tell’’ policy on gays and lesbians violated the school’s antidiscrimination policy.

But it’s still unclear, experts say, how such views will translate in the judicial arena.

“What Elena has shown throughout her career is a pragmatic, lawyer’s approach to legal questions. I think she will bring that to the job,’’ Klain said.