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It's Kagan


Numerous news outlets are reporting that President Obama has chosen Solicitor General Elena Kagan, 50, to replace retiring Justice John Paul Stevens.

I don't know that much about Kagan and have never met her.  What little I do know is this:  She is said to have a relatively high regard for executive power (perhaps related to her service in Clinton's White House Counsel's Office); she vociferously opposed military recruitment at Harvard, where she was Dean of the Law School, on the stated grounds that President Clinton's "don't-ask-don't-tell" policy towards gays was unfair; she is regarded by some conservatives as having a relatively open mind and taking law more-or-less seriously; and she has been rumored to be gay herself, a rumor denied by the White House and for which there is no evidence of which I am aware.

Ms. Kagan has no judicial experience and very little courtroom experience of any kind.  She is the first non-judge to be nominated since Richard Nixon nominated Powell and Rehnquist.  She would be the fourth woman on the Court.  There may be significant recusal issues in the early part of her tenure, given her involvement in cases in which the United States is a party.  If she has a view of criminal law, I don't know about it.

Off the seat of my pants, I would guess she'll be a standard-issue, Ivy League liberal no worse, or not much worse, than Justice Stevens.  If she says anything enlightening at her confirmation hearing, I'll be flabbergasted.

My astute friend and former Supreme Court law clerk Ed Whelan has written extensively, and critically, about Ms. Kagan.  See http://by110w.bay110.mail.live.com/default.aspx?wa=wsignin1.0.

UPDATE:  Scott Johnson has more on Kagan here, http://www.powerlineblog.com/archives/2010/05/026264.php.  Scott reminds us that Kagan did sign the amicus brief challenging the Solomon Amendment,  which was designed by Congress to deter universities receiving federal funds from barring military recuiters. The brief's main argument might charitably be characterized as absurd, accountng for its 8-0 rejection by the Supreme Court (Justice Alito did not participate (hat tip to federalist)).  Ordinarily, an amicus brief would be looked upon as being filed in a representative capacity, but it seems clear that this one reflected Kagan's personal beliefs.

Ed Whelan has added thoughts on Kagan, http://bench.nationalreview.com/post/?q=NzlkMzU1ODg0N2VmYWEwN2E0YzFmOTQwNTdkYjY1MjA=.   Particularly noteworthy are Ed's observations that Kagan's nomination is in jarring contrast to the President's populist rhetoric about wanting someone with "experience in everyday life," whatever that might mean.  As a former White House aide and Harvard Dean, Kagan might have many qualities, but being the person next to you in the grocery store line is not one of them.

Second, Ed points out that some of Kagan's little "real world" experience in the law was as a paid adviser to none other than Goldman Sachs.  That would probably make a conservative nominee radioactive, but I doubt it will hurt Kagan.

My last observation for now is that, in one way, the White House played this beautifully.  They leaked this on Friday, in all likelihood by way of a trial balloon to see if any skeletons in the closet would emerge over the weekend.  Apparently none did.  Second, the White House had previously leaked lists mentioning somewhat edgier candidates like Sidney Thomas, Harold Koh and Deval Patrick.  I suspect this was designed to make moderates and conservatives breathe a "sigh of relief" that it is "only" Elena Kagan, thus deflating the potential intensity of resistance to her. 

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