Tomorrow President Obama will officially announce his nomination of Elena Kagan, current Solicitor General and former Harvard Law School dean, to replace Justice John Paul Stevens on the U.S. Supreme Court. The news might get leaked unofficially tonight, so stay tuned.
We have no reason to question this prediction by Politico — and several reasons support it. The biggest clue is that Judge Diane Wood (7th Cir.), viewed by many as Kagan’s closest competitor, was notified yesterday by the White House that she (Wood) will not be the nominee.
OVERALL EXPLANATORY UPDATE: Apologies for the many updates and corrections below. The short version of what happened is that I originally reported that Judge Wood was notified yesterday that she wouldn’t be the nominee. I got some pushback on that — because it was, in fact, wrong. I corrected the item. But then, about two hours after this post first went up, Judge Wood did get a call from President Obama, informing her that he had decided to go in another direction.
UPDATE (7:00 PM): Some supporters of Judge Wood are denying that she’s out of the running. But, to the extent that Judge Wood hasn’t confirmed her getting dinged to them, I suspect she’s just trying to be a team player, by doing her part not to steal Kagan’s thunder or spoil the White House “surprise.”
UPDATE (7:30 PM): To the Wood supporters who insist she’s still waiting for a call from the White House: if she is the nominee, shouldn’t she know by now? Over at SCOTUSblog, Tom Goldstein is reporting that “[t]he Administration plans to identify its nominee in ‘guidance’ at 7:20am tomorrow morning, with a formal announcement by the President at 11am.”
CORRECTION (7:45 PM): Okay. I’m now hearing, on VERY good authority, that Judge Wood was NOT notified yesterday. So she is still (technically) in contention. I continue to believe that Kagan will be the nominee — but I’d be happy to be wrong about this, since I previously predicted that Judge Wood would be nominated. (My colleague Elie Mystal, meanwhile, has been predicting Kagan all along.)
UPDATE (8:45 PM): I can now say — with absolute, 100 percent certainty, from the same VERY good authority — that Judge Wood was just informed that she’s not going to be the nominee. President Obama did not tell her who has been picked for the position.
UPDATE (10:15 PM): The nominee is going to be Kagan.
The past few days have brought additional clues that point in Kagan’s direction….
Here are three more clues that it’s going to be Kagan:
1. We know the nominee will be a woman.
The nominee won’t be Judge Wood. Might be it be Judge Merrick Garland of the D.C. Circuit or Judge Sidney Thomas of the Ninth Circuit, the two other short-listers?
No. The nominee is going to be a woman. Former White House communications director Anita Dunn — who happens to be the wife of White House counsel Bob Bauer, a major player in the process — is coordinating White House contacts with outside organizations on the nomination. As of Friday night, Dunn was circulating talking points about how confirmation of the president’s nominee would result in there being three women on the Court for the first time ever.
2. The Dan Meltzer resignation.
Also on Friday, Daniel Meltzer resigned as principal deputy counsel, to return to his post as a professor at Harvard Law School. What does this mean?
“Meltzer is out — meaning he didn’t get his way,” a source told us. “Expect an announcement Monday that [the nominee will be] Kagan.”
Hold on a sec. Dan Meltzer was on the Harvard Law faculty before joining the White House counsel’s office. Shouldn’t he be playing for Team Kagan?
Actually, no. Meltzer has been trying to sink Kagan throughout the entire process. Why? Because of a grudge dating back to their days in Cambridge. He threw his hat into the ring for the Harvard Law School deanship at the same time as Kagan, but lost out to her — and has never forgiven Kagan for beating him out for the post.
Now Meltzer is headed back to Harvard — where someday he might become dean, perhaps after Martha Minow finishes out her term. With Kagan out of the picture, after her confirmation to a life-tenured position on the Supreme Court, he won’t have to worry about her pesky meddling!
Also, note when Meltzer’s departure takes effect, which is significant. Charlie Savage of the New York Times wrote as follows:
Mr. Meltzer, who teaches courses on the federal courts at Harvard, helped prepare Supreme Court Associate Justice Sonia Sotomayor for her confirmation hearings – a role he may reprise in his final weeks by working with Mr. Obama’s forthcoming Supreme Court nominee, which the president is expected to announce as soon as Monday.
Actually, count on Meltzer not reprising that role. He’s departing very quickly, as of June 1 — well before the start of Kagan’s confirmation hearings. Some have questioned the rapidity of his departure, during a critical time for the White House counsel’s office, when it will be difficult to train a new deputy.
What do we think this means? Meltzer simply can’t bear the thought of working long hours to help a former rival obtain confirmation to an even more glorious post.
3. Eric Holder on Meet the Press.
On Meet the Press earlier today, Attorney General Eric Holder praised Kagan warmly, stating that people “will get an understanding of who she is, what her judicial, judicial philosophy is.” Although he hedged a bit, stating that his remarks applied “if” she is the nominee, if you watched the program you came away with the distinct sense that Kagan will be the nominee.
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At the end of the day, we’re guessing it came down to the issue of age. All four of the short-listers — Kagan, who just turned 50; Judge Merrick Garland (D.C. Cir.), who’s 57; Judge Sidney Thomas (9th Cir.), who’s 56; and Judge Diane Wood (7th Cir.), who’s 59 — are very impressive. But Kagan is the youngest by a large margin, as noted by Elie on Friday. See also the Associated Press:
Kagan is the youngest, by nearly seven years, of the four people the president is known to have interviewed to succeed retiring Justice John Paul Stevens. She would be the youngest nominee by a Democratic president since 1962, when President John F. Kennedy chose 44-year-old Byron White…..
Picking younger justices has been a hallmark of recent Republican presidents. The current chief justice, John Roberts, was 50 when Bush nominated him and Clarence Thomas, chosen by Bush’s father, was 43. Other than Alito, who was 55, every GOP-nominated justice back to O’Connor was 50 or 51.
Youth: it’s helpful not just for landing a rich husband or a leading role in a romantic comedy, but also for snagging a starring role in the drama at One First Street.
Good luck, Solicitor General Kagan, in the confirmation process!
P.S. Back when I thought Wood was going to be nominated, I advised her to go easy on the waffles at Mother’s Day brunch today. Now I’m guessing she had an extra helping — maybe with several sides of bacon, too.