Kagan's Road from Solicitor General to Supreme Court: Not Too Rocky?

Article excerpt

Supreme Court nominee Elena Kagan will be questioned vigorously during Senate confirmation hearings. But she was confirmed last year as solicitor general - and won seven Republican votes.

By the time word leaked out Sunday evening that President Obama would nominate Solicitor General Elena Kagan to the Supreme Court today, political Washington almost shrugged.

Her position as the presumed next nominee was cemented nearly a year ago, when Mr. Obama used his first court selection to name the first Latina justice, Sonia Sotomayor. The thinking then was that Obama could well have selected Ms. Kagan, who by all accounts is intellectually gifted and has good personal skills, but that he wanted to give her additional seasoning arguing cases before the Supreme Court as the nation's top advocate in the court.

When Justice John Paul Stevens announced his retirement a month ago, the press got to work digging into Kagan's background, as well as those of the other assumed short-listers - a time-honored technique in which a White House floats names and allows the media to help with the vetting process.

IN PICTURES: Justices with no prior judicial experience

In short, nothing has come out on Kagan that would raise any red flags of possible disqualification. And even though, in these highly partisan times, she can expect a vigorous grilling before the Senate Judiciary Committee, the early consensus is that she will ultimately be confirmed, barring any serious stumbles or new, problematic revelations.

Liberals may be grousing a little

In fact, her confirmation is so expected, that some liberals are likely grumbling that Obama did not go for a nominee with a more demonstrably liberal record - say, federal appeals court Judge Diane Wood, whose paper trail indicates strong support for abortion rights. Democrats are expected to come out of the November midterms with many fewer Senate seats than they currently hold, meaning now was the time to make a Supreme Court pick less safe than Kagan, if Obama were ever to make such a move.

One pro-abortion rights group issued a wait-and-see reaction to Kagan's nomination.

"The Center for Reproductive Rights looks forward to learning more about Solicitor General Kagan's opinions on important constitutional principles and cases, particularly the right to privacy and Roe v. Wade," said the group's president, Nancy Northup, in a statement. "We applaud her groundbreaking career history as the first female dean of Harvard Law School and first woman to serve as U.S. Solicitor General. However, her public record reveals very little about her judicial philosophy or her views on the constitutional protections in Roe."

If any big liberal pushback over Kagan ensues, that may only serve to promote an image of Obama as largely in the center and as one who picks his battles carefully. With multiple tough issues on his plate, including energy and immigration reform, Obama apparently does not want to burn up major political capital on the Supreme Court.

Kagan has never been a judge, and therefore does not have a large paper trail of decisions that can be used against her. Some conservatives are suggesting that her lack of bench experience is problematic, though one need look no further than the late Chief Justice William Rehnquist to find the last justice who came to the court with no judgeship on his or her resume. …