Early signs are positive for Kagan

WASHINGTON - Initial signs pointed toward a smooth, perhaps even tame, Senate confirmation process for Solicitor General Elena Kagan, whom President Obama nominated Monday to succeed retiring Supreme Court Justice John Paul Stevens.

To be sure, any path to confirmation is riddled with potential pitfalls, and so far, a few have surfaced: Kagan's limited courtroom experience, her effort as dean of Harvard Law School to bar military recruiters from campus, and concerns among liberals that she might not be a reliable vote.

However, independent analysts said they thought that none of those concerns appeared likely to derail her nomination, particularly in a Senate in which Democrats control 59 of 100 seats.

"If that's all they can come up with, she should be fine," said Thomas Keck, a Syracuse University professor of constitutional law and politics.

Kagan, 50, a single New York City native with degrees from Princeton, Oxford, and Harvard Universities, has never been a judge, and would be the first justice in nearly 40 years who did not ascend directly from the bench.

She would be the fourth woman ever to serve on the court, and her confirmation would give it three sitting female justices for the first time.

Obama, in introducing her Monday at the White House as his nominee, lauded Kagan a "trailblazing leader" and a consensus-builder for a court that frequently splits, 5-4.

"Elena is respected and admired not just for her intellect and record of achievement, but also for her temperament, her openness to a broad array of viewpoints," Obama said. She thanked him "for this honor of a lifetime."

Kagan is expected to start paying courtesy visits to senators this week, and Obama started calling lawmakers of both parties on her behalf Monday.

The Senate Judiciary Committee, with 12 Democrats and seven Republicans, is likely to hold her confirmation hearing in early summer. Committee Chairman Patrick J. Leahy (D., Vt.) predicted that the Senate would vote by early August so she could be seated on the court when it convenes in October for its next term.

She does not come before senators with the usual trove of legal briefs or court opinions reflecting a judicial or legal style. But she starts with an advantage: She was confirmed last year to her current job, as the administration's top trial attorney, 61-31, with seven Republicans backing her. She is the first woman to hold that job.

"Not much has changed since then, other than this is life tenure," said Susan Low Bloch, a professor at Georgetown University Law School.

Some Republicans who are seen as possible supporters were circumspect Monday.

"Judicial qualifications go beyond legal experience," said Sen. Orrin G. Hatch (R., Utah), a senior Judiciary Committee member who met privately with Obama last week. Hatch was one of the seven Republicans who backed Kagan for her current post.

Sen. Lindsey Graham of South Carolina, one of nine Republicans who voted last summer for Obama's first Supreme Court nominee, Sonia Sotomayor, offered praise, citing Kagan's "strong academic background in the law." He said he had been "generally pleased with her job performance as solicitor general."

One Republican, Oklahoma Sen. James M. Inhofe, said he would oppose Kagan, citing her "lack of impartiality when it comes to those who disagree with her position."

Others said they would look closely at her, warning that her earlier confirmation should not be seen as necessarily leading to the same result.

"The standard of scrutiny is clearly much higher now," said Senate Minority Leader Mitch McConnell (R., Ky.).

Kagan would be the current court's youngest member and, with the lifetime appointment, could extend Obama's court legacy by decades.

In addition to joining Sotomayor and Ruth Bader Ginsburg as the court's sitting female justices, she would be its third sitting Jewish member, along with Ginsburg and Stephen G. Breyer.

Kagan's resume includes stints as clerk to former Supreme Court Justice Thurgood Marshall and to federal appellate Judge Abner Mikva, a key Obama mentor.

She also was special counsel to the Senate Judiciary Committee in 1993, helping chairman Joe Biden, now the vice president, during Ginsburg's confirmation. She was part of President Bill Clinton's White House counsel's office and his domestic-policy team, and has also been a University of Chicago law professor. She practiced private law for two years in Washington.

She was nominated to a federal appeals post by Clinton but was not voted on by the Senate.

White House press secretary Robert Gibbs said Monday that Kagan would continue to work on cases as solicitor general but would not take on new ones. If confirmed, Kagan would have to step aside from any case that passed through the solicitor general's office during her tenure.

Some flash points began to emerge Monday. Sen. Jeff Sessions of Alabama, the top Judiciary Republican, said Kagan's lack of courtroom experience troubled him.

Kagan, in her current post, has argued before the Supreme Court a half-dozen times, starting in September with her unsuccessful defense of a campaign-finance law that restrained corporate campaign spending. The court also rejected Kagan's defense of a law that made it a crime to sell videos that depict animal cruelty.

McConnell was unimpressed. "It strikes me that if a nominee does not have judicial experience, they should have substantial litigation experience," he said, noting that former Chief Justice William H. Rehnquist, who was not a judge before he joined the court in 1972, had been in private law practice for 16 years.

But Sen. Amy Klobuchar (D., Minn.), a Judiciary member, said that Kagan, like Rehnquist, "comes to the court with experiences different than those of a judge. I think it is healthy for the court to have at least one justice from outside what has been termed the 'judicial monastery.' "

Kagan, Harvard Law's dean from 2003 to 2009, is expected to be grilled on her view that the "don't ask, don't tell" policy, which bans gays and lesbians from serving openly in the military, is unfair to them. Obama plans to end the policy.

In 2004, after an appeals court ruling, Kagan banned the military from using Harvard Law's recruiting office, though it had access through a student veterans group. When the Pentagon threatened to withhold funding from all of Harvard - not just the law school - in retaliation, she relented and let the recruiters use the office.

Sessions said her actions "need to be addressed."

Ron Klain, Biden's chief of staff and a Kagan friend, offered a detailed defense Monday of her action, saying that any suggestion Kagan is antimilitary is "ridiculous."

Kagan also could face stiff questions from a bloc that is usually friendly to the Obama administration: liberals. Stevens, whom she would succeed, became a leader of the court's liberals. He is retiring at 90 after nearly 35 years.

"They don't know her," Georgetown's Bloch said. "She's not as liberal as others he could have chosen."

Klain said Kagan was "clearly a legal progressive" with a "pragmatic perspective," but some interest groups were quick to voice concern.

"Her public record reveals very little about her judicial philosophy or her views on the constitutional protections" in Roe v. Wade, the 1973 Supreme Court case that legalized abortion, said Nancy Northup, president of the Center for Reproductive Rights.

Papers from Clinton's presidential library reviewed Monday by the Associated Press show that in 1997, Kagan advised him to support a Democratic proposal that would have limited late-term abortions. The measure, which would have banned all abortions of viable fetuses except when the mother's physical health was at risk, was designed as an alternative to a more restrictive GOP bill, which Clinton eventually vetoed.

See video of remarks by Obama and Kagan via http://go.philly.com/kagan EndText