Breaking: Obama to Nominate Solicitor General Elena Kagan to U.S. Supreme Court

We’ve all known this was coming — especially after Judge Diane Wood got a fateful phone call earlier tonight. And now that one of the big networks has declared it, we consider it reportable news (sort of like election results).

Above the Law commenters, consider the Kagan released. From NBC News (via SCOTUSblog):

President Barack Obama will nominate U.S. Solicitor General Elena Kagan to serve as an associate justice on the U.S. Supreme Court, NBC News’ Pete Williams reported late Sunday night.

Kagan, 50, served as the Dean of Harvard Law School from 2003 to 2009. Obama nominated her to serve in her current post as solicitor general early in 2009, and she won Senate confirmation by a vote of 61-31. She is the first woman to serve as solicitor general of the United States.

The foregoing paragraph says it all. The case for Kagan can be made “by the numbers,” namely, two numbers: 50 and 61….

Kagan just turned 50, making her almost seven years younger than the other short-listers — a huge advantage (as I’ve noted, and as Elie has noted).

Kagan was confirmed as Solicitor General last year with 61 votes. It will be tough for the Republicans to rustle up enough votes to defeat her. The position of Solicitor General, the federal government’s primary advocate before the Supreme Court, is about as close as you can get to being on the Court. There’s a reason why the SG is sometimes referred to as “the Tenth Justice.” It will be difficult for Republicans to explain why Kagan was acceptable to confirm as Solicitor General but unacceptable to confirm as a justice.

(Fun fact: Kagan clerked for Justice Thurgood Marshall, who also served for a short time as Solicitor General before being nominated to the Court.)

Kagan’s tenure as Solicitor General hasn’t been without criticism. Some observers on the left, for example, believe she could have handled Citizens United better. But nothing she has done in her year as SG would justify rejecting her as a SCOTUS nominee. Barring some unforeseen revelation, she will be confirmed. We suspect that Tom Goldstein’s prediction — made back in February, before Justice Stevens even announced his retirement — will come to pass: “On October 4, 2010, Elena Kagan Will Ask Her First Question As A Supreme Court Justice.”

Speaking of Goldstein, there’s some excellent, very detailed coverage of Kagan over at SCOTUSblog. See especially these two posts:

Congratulations, Solicitor General Kagan, and good luck in the confirmation process!

UPDATE (11:50 PM): The SCOTUSblog posts, while excellent, are lengthy. For more concise overviews of the Kagan nomination, see the Washington Post and New York Times articles linked to below.

NBC: Obama to name Kagan for high court [NBC News via SCOTUSblog]
Obama picks Elena Kagan as Supreme Court nominee [Washington Post]
Obama Is Said to Select Kagan as Justice [New York Times]

Earlier: More Clues That It Will Be Kagan: Judge Wood was notified tonight that she’s not the nominee.
It’s Beginning to Look A Lot Like Kagan

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