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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.

By E.J. Dionne  | May 13, 2009; 3:29 PM ET
Categories:  Dionne  | Tags:  E.J. Dionne  
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To raise a sensitive point, what about the fact that both Justice Ginsberg and Solicitor General Kagan are Jewish? I ask particularly in light of Ruth Marcus' sensible reference to the problem of "look-alikeness" of women on the court. I ask this as a female Jew, who would be happy to see religion set aside in choosing a nominee. And, as a woman, I feel concerned about the "look-alikeness" problem.

Posted by: consider | May 13, 2009 5:17 PM | Report abuse

She clerked for Thurgood Marshall.

In spite of her unfortunate last name (an unwelcome reminder of the three Kagan stooges, Fred, Donald and Robert) that credential -- along with the rest of her incredibly distinguished career -- is good enough for me.

Posted by: pali2600 | May 13, 2009 6:12 PM | Report abuse

As much as I respect Solicitor General Kagan, I don't think she's qualified (admittedly I didn't think she was qualified for her current position). For far too long (and even moreso recently), this country has equated qualifications with educational elitism. If you go to an Ivy League University, then to Harvard Law School, clerk for the right Judge, then teach at an Ivy League law school, you're qualified for XYZ position. Well as a practicing lawyer with an Ivy League degree -- that's nonsense! Elena Kagan has some, but not much practical experience. She's the first Solicitor General never to appear before the Court --I personally think that's a big deal, but she "fit" what the President was looking for. Our country is too caught up in elite instutions and rather than thinking through tough decisions we defer to them as if their alums can save the world. We can't! I'd much rather have a seasoned lawyer from the private or public sector who has spent some time as both a trial and appellate judge ascend the Supreme Court than an academic with the right educational background. Just my two cents...

Posted by: jrshipp | May 13, 2009 7:10 PM | Report abuse

In case anyone's curious, Sotomayor and Kagan are being traded at about equal prices (30% likelihood) at the predictions market at Following them are Wood (26), Wardlaw (15) and Granholm (10).

(Numbers don't add up to 100 because the market is not perfectly efficient at low volumes.)

Posted by: B2O2 | May 13, 2009 7:50 PM | Report abuse

I think Obama should not cave in to pressure by the Hispanics that insist that Obama owes them something for supporting him to get him elected. Although there are many good Hispanic judges and lawyers that could qualify for the Supreme Justice position, it would be mistake and a distraction to do so, because it will be viewed as Obama's way of repaying the Hispanics and, also, meeting his racial quota.

The person Obama selects should be the best among the best. A person who is a moderate, without an agenda or an ideology. A person with a heart and compassion for the common man. However, his/her selection SHOULD NOT be based on gender,or race. It should be based on his/her record and qualifications only.

In addition, Obama should be aware of some pitfalls. For instance, the Supreme Court has already too many Catholics who are against abortion, and are anti gay and lesbians. Also, Obama should try to avoid selecting some one who is viewed as a PLUTOCRAT,(a person who believes that power should be concentrated by the richest people in the country and the big corporations). And, above anything else, he should select an independent thinker. Thus, he should not pick a minion or a lackey like ALBERTO GONZALEZ AND JUSTICE THOMAS.

Without a doubt, Obama has some tough decisions to make. Nonetheless, his choice will have lasting effect in our society, so he better be wise in his selection.

Posted by: fridaolay | May 13, 2009 8:38 PM | Report abuse

I think Ms. Kagan signed off on the specious Rumsfeld v. FAIR brief.

Wood is an anti-trust expert whose judicial opinions are praised for their probity by most lawyers of any political persuasion on either side of the docket.

Hook 'em, Horns.

Posted by: mark_in_austin | May 13, 2009 11:42 PM | Report abuse

The smart money is on Ms. Rice. Word is the NFL promised Obama Season Tickets to any Team with the Skybox thrown in of course. The NFL made their case saying it was the only way they could get her to stop applying for the NFL Commissioners job every other week. Granted Pres. Obama could also count on her vote grant him more Executive Powers, support more Torture, Warrantless Wiretapping, and she plays a mean piano. The Strategists also believe that after having been denied Cheneys lovechild and her break up with George over who would pay the bill at the Watergate Hotel, they believe she would support the Rendition of GW and Cheney to Spain to stand trial.

Posted by: SmileySam | May 14, 2009 3:50 AM | Report abuse


This inductive logic is astute, one might say prophetic, for it has already happened as a matter to us 31st century participant-observer-historians. I'm love it when historial-primates predict some relevant fact about their future correctly. I'm impressed! But there's more to come ... though disclosing such would spoil the human ending -- the latter being a clue:)

Posted by: GroupThink | May 14, 2009 4:26 AM | Report abuse

It was questionable whether Elena had the experience to be Solicitor General, since she had never practiced law. How much experience can she have gained in her few months as Solicitor General?

Posted by: Itzajob | May 14, 2009 9:28 AM | Report abuse

Consider, consider this: Roberts and Alito were both Catholic males (as are Clarence Thomas, Antonin Scalia, and Anthony Kennedy). If there was no "look alike" problem for Roberts and Alito, why invent one now for Elana Kagan?

Posted by: profco | May 15, 2009 9:17 AM | Report abuse

Dionne's logic that Elena Kagan has an inside track over Sotomayor applies equally to both Susan Rice and Dianne Wood. These two have the added advantage that they aren't part of the East Coast Mafia: Wood a Chicagoan and Rice a political ally of Obama in last fall's election. Both Rice and Kagan would infuriate the right wing, which may or may not matter to Obama. My hunch is that Wood has the odds in her favor.

Posted by: dmh86201 | May 15, 2009 12:46 PM | Report abuse

Elena Kagan makes the most sense, both because she is supremely qualified and because, having recently been vetted, she could be confirmed quickly.

Those who reject Kagan as "unqualified" to be a Supreme Court justice because she hasn't practiced law (though, she actually did work for a short time at one of the finest litigation firms in the country, Williams & Connolly), simply don't understand what the Justices do and what skills are important. What matters most is that she has a brilliant legal mind and, as a law professor, has been steeped in Supreme Court jurisprudence for many years. President Obama needs to choose someone whose intellect is at least equal to the most formidable minds on the other side of the political spectrum--Roberts and Scalia. Kagan has that, and her wit, charm, forceful personality and relative humility (extraordinarily rare in Harvard Law professors!)will make her a consensus-builder on the Court, much the way she was at Harvard. Kagan is a proven leader, and she will help lead the new liberal/moderate wing of the Court.

Posted by: hallrochelle | May 15, 2009 2:09 PM | Report abuse

I might personally prefer other candidates like Judge Wood or Gov. Grantholm, but Mr. Dionne makes a very strong case here for Obama choosing Ms. Kagan. The fact that she just survived confirmation without much controversy is a strong recommendation. As for suitability, you could make a case that she would be a better choice for Supreme Court justice than Solicitor General, given her work for Justice Marshall, and lack of experience as a litigator.

Posted by: jaypem | May 16, 2009 12:36 PM | Report abuse

Dionne is a truly pathetic bootlicker

Any opinion he has about Obama or anything related to Obama cannot be taken seriously.

Dionne seems quite literally orgasmic when he is writing or speaking of anything Obama.

Is Dionne gay?

Posted by: Meme27 | May 18, 2009 9:46 PM | Report abuse

who ever he picks. the republicans will put up agood fight.i have to say we have come a long way from when there was fist fights in congress. i also have to agree there will be more than one appointment to the court. get ready for it.

Posted by: davidmichaelhill | May 19, 2009 3:18 AM | Report abuse

Better to pick some ordinary judge from some ordinary state and public law school. Ironically, though, the name Kagan is handy, if it helps quiet down AEI critics like Bork or cousins Fred and Robert, who to avoid confusion with a nefarious liberal might be prompted to change their names to Kougan, Kagoon, or Kagón.

Posted by: jkoch2 | May 19, 2009 10:40 AM | Report abuse

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