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Published: Tuesday, 5/11/2010

Obama hails court choice as trail blazer

WASHINGTON POST

WASHINGTON - President Obama yesterday nominated Elena Kagan to be a Supreme Court justice, calling her a "trailblazing leader" who would bring "fair-mindedness and skill as a consensus builder" to the court.

Ms. Kagan, 50, the former dean of Harvard Law School who is now the nation's solicitor general, would become the fourth woman to serve on the high court; if she is confirmed, the nine-member court would have three female justices for the first time.

In nominating Ms. Kagan to replace retiring Justice John Paul Stevens, Mr. Obama is breaking with tradition. Every other member of the court is a former federal appeals court judge.

Ms. Kagan has never served in the judiciary. The last time a non-judge was appointed was in 1972, when President Richard Nixon nominated William Rehnquist and Lewis Powell in the same year.

Ms. Kagan took the podium after Mr. Obama spoke, thanking him. Saying her respect for the court has become "ever deeper and richer" in her time before the court as solicitor general, Ms. Kagan said it would be a tremendous honor to replace Justice Stevens.

"The court is an extraordinary institution," she said.

With his second Supreme Court nomination in as many years, Mr. Obama has laid down clear markers of his vision for the court, one that could prove to be among his most enduring legacies.

Together with Justice Sonia Sotomayor, Elana Kagan's confirmation would represent a shift toward a younger, changing court, one that values experiences outside the courtroom and emphasizes personal interactions as much as deep knowledge of the law.

Ms. Kagan would not immediately alter the ideological balance of the bench. But her addition would almost certainly provide a lasting, liberal presence, and administration officials hope she would, in the words of one, "start to move the court into a different posture and profile."

The announcement begins what White House officials hope will be a six-week or seven-week confirmation process that concludes with bipartisan support for Ms. Kagan's nomination. And it kicks off what is likely to become a national conversation about what qualities are important to become one of the nation's highest judges.

Sen. Jeff Sessions (R., Ala.), the top Republican on the Senate Judiciary Committee, was quick to highlight her "lack of judicial experience and short time as solicitor general," while other conservatives pointed to her long list of Democratic connections.

Rep. Lamar Smith, the ranking Republican on the House Judiciary Committee, said Ms. Kagan will have to show "that she was not chosen by the President as a political ally who will rubber-stamp his agenda - but as an impartial jurist who will uphold the Constitution's limits on the proper role of the federal government and defend the liberties of everyday Americans."

If there is an aim in crafting an "Obama court" - and advisers are preparing for the possibility of a third vacancy, which could make his imprint even more indelible - it is to move the bench further in the direction of considering the impact of its rulings. Mr. Obama said as much yesterday, praising Ms. Kagan during an East Room nomination ceremony as someone who has an "understanding of law, not as an intellectual exercise or words on a page, but as it affects the lives of ordinary people."

In just two years, Mr. Obama has had the opportunity to add two justices, the same number George W. Bush had in two terms. The President believes, according to his advisers, that, although Ms. Kagan has never been a judge, she would be able to play an "outsize role" on the bench by swaying colleagues when opinion is divided.

White House officials said Mr. Obama phoned Ms. Kagan at 8 p.m. Sunday to inform her of his choice, then called the other contenders, then called congressional leaders.

Mr. Obama settled on Ms. Kagan relatively early, said sources familiar with the process who spoke on the condition of anonymity.

Ms. Kagan does not have an extensive record of speeches, writings, or decisions for critics and supporters to study. That gives potential allies and adversaries an opportunity to shape the public's view of her life and career.

Ms. Kagan is solicitor general - the government's top appellate lawyer and representative at the Supreme Court. She was confirmed as solicitor general last year by the Senate, 61-31.

But a leading Republican on the Senate Judiciary Committee, which will hold confirmation hearings, said Ms. Kagan would get greater scrutiny as a nominee for the Supreme Court than she did when Mr. Obama nominated her to be solicitor general.

"As I made clear when I supported her confirmation as solicitor general, a temporary political appointment is far different than a lifetime appointment to the Supreme Court," said Sen. Jon Kyl (R., Ariz.), who also serves as the Senate GOP whip.

Anticipating the possibility of a ferocious debate about Ms. Kagan, top White House aides moved swiftly to begin framing the narrative about her life and what kind of justice she would be.

Ron Klain, chief of staff to Vice President Joe Biden, said Ms. Kagan will start making courtesy calls on Capitol Hill this week.

Ms. Kagan's personal story, much like Mr. Obama's, is somewhat removed from Middle America. She was raised on the Upper West Side of New York, graduated from Princeton, and worked in the Clinton administration before serving as Harvard's dean.

If she is confirmed, the court would be filled with justices who attended law school at either Harvard or Yale, although Justice Ruth Bader Ginsburg graduated from Columbia Law School.

And because Ms. Kagan is Jewish, for the first time in its history, the court would be without a Protestant justice: It would be composed of six Catholics and three Jews.

There are similarities between Justice Sotomayor and Ms. Kagan: Both women are New Yorkers who were educated at Ivy League universities, are in their 50s, unmarried, and have no children.

But Justice Sotomayor was a prosecutor and corporate lawyer before becoming a judge, while Ms. Kagan comes from a world of academia and government service. Ms. Kagan describes herself as an "excellent" teacher and a consensus-builder among the faculty of Harvard Law School, where she has won praise from conservatives and liberals.



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