With the retirement of Supreme Court Justice David Souter, President Obama has a space on the high court to fill. One of the top prospects is Elena Kagan, who recently became Solicitor General.
Kagan arrived at the Department of Justice from her post as Dean of the Harvard Law School. She served as Associate Counsel to President Bill Clinton and as a clerk to Supreme Court Justice Thurgood Marshall. Should Obama choose her, it would mean his White House would have to fill another vacancy. But her academic and judicial pedigree seem almost better suited for the Court than as a lawyer arguing before it. Plus, she's already been through the confirmation process.
In October, the Boston Globe outlined Kagan's successes at Harvard:
Kagan set to work early, making small but visible changes to improve the everyday lives of students. She started providing free coffee in classroom buildings, and free tampons in the women's bathrooms. On a lawn outside the student center, she added a beach volleyball court that doubled, during the long Cambridge winter, as a skating rink.
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For her part, Kagan describes that early flurry of face lifts and new perks as an idea borrowed from her former boss, Bill Clinton: The faith that small, symbolic policies could help solve big problems. "When I got here I looked around for little things I could do: things that don't cost much money, don't take much time, that you don't have to have a faculty meeting to do," she said in an interview in her office.
"As it turns out," she said with a slight laugh, "you can buy more student happiness per dollar by giving people free coffee than anything else I've discovered."
Conservatives are already targeting Kagan, circulating a memo arguing that she lacks the experience to serve on the Supreme Court and claiming her positions are "disturbingly out of the mainstream."
-Dean Kagan's nomination to the Supreme Court would be concerning given her complete lack of judicial or appellate experience. She has never been a judge or even argued a case in a court of appeals. It is difficult to see how her experience fundraising for Harvard Law School qualifies her for a seat on the Nation's high court.
-Dean Kagan has taken positions that are disturbingly out of the mainstream. For example, driven by her view that the "don't ask; don't tell" policy adopted by a Democrat Congress and President Clinton is "a profound wrong -- a moral injustice of the first order," she argued that it violates the First Amendment for the United States to withhold funds from colleges that ban the military from recruiting on campus. The Supreme Court unanimously rejected this view.
-It is also unclear that a Justice Kagan would be an adequately independent check on executive excesses. She has argued in favor of greatly enhanced presidential control over the bureaucracy, which is concerning in light of President Obama's unprecedented centralization of power in the White House.
-Dean Kagan has argued that nominees to the Supreme Court should undergo a searching inquiry into the nominee's substantive views of the law, and should comment particular issues. If nominated, it will be interesting to see whether Dean Kagan remains faithful to this prescription in answering the Committee's questions.