Everywhere you go, people are buzzing that President Barack Obama has made his choice on the replacement for Justice John Paul Stevens. And the consensus is that the nominee will be Solicitor General Elena Kagan. Politico reports that David, Kash and I will be up late on Sunday:
Look for President Obama to name his Supreme Court pick Monday, and look for it to be Solicitor General Elena Kagan, a former Harvard Law dean. The pick isn’t official, but top White House aides will be shocked if it’s otherwise… The West Wing may leak the pick to AP’s Ben Feller on the later side Sunday, then confirm it for others for morning editions. For now, aides say POTUS hasn’t decided, to their knowledge.
With all the talk about the razor-sharp Judge Diane Wood, the case for the bearded dark-horse Judge Sidney Thomas, and the Republican wet dream (at least, a wet dream within the nightmare of Democratic control) of Judge Merrick Garland, it’s possible that Kagan’s sterling qualifications have been overlooked. She was the front runner, after all.
But let’s remember all of the excellent reasons Kagan was the front runner in the first place…
As we’ve said before, all four remaining candidates on Obama’s shortlist are eminently qualified. They are all intelligent and accomplished and to the extent that any person is qualified to hold lifetime power over our system of jurisprudence, these four fit the bill.
But Kagan has two things going for her over the other potentials:
A) She’s 50.
Kagan turned 50 a week and a half ago. One might well expect to get 30 lucid years out of her and another five or ten basically functional ones. When you’re talking about lifetime appointments in an increasingly fickle polity, longevity is a huge factor. It has to be.
If Kagan is nominated, Obama won’t be the first President to actively go after youth on the Court. Chief Justice Roberts was 50 when he was appointed. Justice Samuel Alito was 56, Justice Sotomayor turns 56 next month. Roberts, Alito, Sotomayor, and possibly Kagan will still be on the Court when the Lost Generation are pumping out children. The current balance on the Court is 5 – 4. But with a pick like Kagan, Obama ensures that the long term balance on the Court is 2 – 2, and counting.
B) Kagan’s not a Judge.
While some people feel this is a disadvantage, everything we know about Obama suggests Kagan’s lack of judicial experience is a huge plus in his eyes. The President made noises about “diversity of experiences” on the Court back in the campaign. And we’ve all seen how “No Drama Obama” has barely been able to keep his cool about the Citizens United decision. I bet he thinks that if any of the five conservative judges had spent more time in the rough world of professional politics, they would have seen the potentially disastrous consequences of unfettered corporate money in our electoral process.
That doesn’t make Obama right, but he is the President and so he’s the decider. Kagan is obviously not a politician, but she’s been in the trenches as a government lawyer. From her bio:
From 1995 to 1999, Kagan served in the White House, first as Associate Counsel to the President (1995-96) and then as Deputy Assistant to the President for Domestic Policy and Deputy Director of the Domestic Policy Council (1997-99). In those positions she played a key role in the executive branch’s formulation, advocacy, and implementation of law and policy in areas ranging from education to crime to public health.
Not just the theory of law, the “implementation” of law. I bet Obama likes that. The next time Justice Alito mutters “not true,” I think Obama wants Kagan to be standing there to politely remind him how elections work in this country.
Now, I can imagine many people will take one look at Kagan’s resume, see “former Dean of Harvard Law School,” and act like Morpheus confronting Agent Smith. They’ll say: “You all look the same to me,” and turn to stone. To be sure, Kagan’s “diversity” does not extend to her educational pedigree. Maybe one day we will nominate a SCOTUS Justice that worked as a cop for a bunch of years, rose to be police commissioner of a tough town, went to law school at night, and worked criminal defense until a President comes to respect his diversity and nominate him to the high bench (yes, I just predicted Lieutenant Cedric Daniels as the next Justice).
But I think most lawyers understand that not all Harvard pedigrees are created equal. Kagan hasn’t spent the last decade under a robe. She’s been advocating. And when she wasn’t advocating, she was educating. That’s a different career path than anybody else currently on the Court. She does represent a diversity in terms of her professional experience, even though there’s ivy on her resume.
Obviously, there are a ton of other personal and professional factors that recommend Kagan for this position. Remember, she’s been on a liberal “short list” for a SCOTUS nomination for over a decade — back in 2000 the scuttlebutt around the HLS campus was that Kagan would have been heavily considered for a nomination if Gore won the presidency.
It appears that now is her time. At 50 years old and with a unique set of pre-SCOTUS credentials, we could be at the beginning of one of the more interesting judicial careers in the modern age.