The Logic of Picking Elena Kagan
Word is that President Obama is close to naming a Supreme Court justice to replace David Souter. This week, I sat down with a very smart and politically shrewd Washington lawyer (who is outside the administration), and we agreed that logic pointed to choosing Elena Kagan, who is now serving as solicitor general. Here is the thinking:
Just about everyone believes that Obama will name a woman to the court, since having only one woman justice makes little sense. There is also a widespread view that Obama wants to name the first Latino justice. That makes sense, too, not only because Latinos voted overwhelming for Obama, but also because it is long past time for this barrier be broken.
Putting two plus two together, many in Washington have concluded that this means Obama will name a Latina. There are certainly well-qualified Hispanic women for the Court, notably Judge Sonia Sotomayor from the Second Circuit of the U.S. Court of Appeals. Sotomayor certainly has to be ranked as a front-runner, and she has a compelling personal story. She grew up poor in Bronx public housing and went on to graduate from Princeton summa cum laude and then Yale Law School.
But the Obama folks sent an interesting signal this week through a story by my Post colleagues Robert Barnes and Michael D. Shear. Barnes and Shear reported that the White House “is constructing its appointment strategy on the belief that this will not be his only appointment to the court and that he need not reach his goal of changing the racial, ethnic and gender balance on the court with just one pick.”
Barnes and Shear drew the logical conclusion: “White House officials believe that Obama may get at least two more appointments....He could appoint a woman this time, the thinking goes, and appoint a Latino or Latina later.”
I don’t believe this White House does anything by accident, so I took that as a signal to Latino groups that if Obama didn’t name a Hispanic this time around, he intended to do so later. That points to the strong possibility of a non-Latino woman.
Kagan strikes me as the obvious choice because Obama is interested in avoiding a major battle and does not want a nomination to get hung up on vetting. (The administration has had enough of such problems already.) Kagan was just vetted for the Solicitor General’s job, and 61 senators have already cast a vote to confirm her. It will be difficult (though admittedly not impossible) for a senator who voted yes the first time to vote no on her court nomination. Since Kagan has long been mentioned as a possible or even probable Supreme Court choice, my hunch is that she drew 31 “no” votes from Republicans because they didn’t want to be caught in that bind. Significantly, seven Republican senators voted to confirm Kagan anyway: Susan Collins (Maine), Tom Coburn (Okla.), Judd Gregg (N.H.), Orrin Hatch (Utah), Jon Kyl (Ariz.), Dick Lugar (Ind.) and Olympia Snowe (Maine). That’s a very good group to have favorably disposed toward you at the outset.
Kagan is young (she just turned 49) and is universally seen as very smart -- she, too, graduated summa cum laude from Princeton, got a Masters from Oxford and then graduated from Harvard Law School, where she was an editor of the Law Review. She taught at Harvard and the University of Chicago, worked in the Clinton White House and was dean of the Harvard Law School. That last post could serve her well with conservatives because she was regarded as fair-minded by her conservative colleagues. She made a sometimes fractious law school far more collegial. She thus fits a highly favored Obama category: She’s a progressive who works well with those on the other side of politics. That would also help make her a persuasive member of the Court in building progressive majorities -- and in tempering conservative majorities.
The obvious downside of a Kagan pick is that she just took over as solicitor general, and Obama would need to find someone else. On the other hand, the court choice is politically more important to Obama, and Kagan solves a lot of problems at once. Getting a new solicitor general confirmed should not be a big problem.
Bear in mind that this entire post is based on logic (or at least what I see as logic) and not on any inside information -- other than the fact that I have known Kagan since the 1990s and share the very high regard for her that many others feel. (And, since it’s fair for readers to ask: no, I have not talked to her about this. In fact, I haven’t talked with her in a couple of years, and she certainly has no idea that I’m writing this.)
This is one piece of punditry that I hope is true, not simply because all pundits like to get it right, but also because she really would make an excellent justice. We will soon learn how good my logic is.
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