Truesee's Daily Wonder

Elena Kagan Emerging As Supreme Court Front-Runner

First Posted: 04- 9-10 03:48 PM   |   Updated: 04- 9-10 04:25 PM

Elena Kagan, President Obama's solicitor general, is rapidly emerging as a frontrunner to replace retiring Chief Associate Justice John Paul Stevens. Kagan is widely praised as an accomplished and intelligent attorney, but is far more conservative than Stevens and could shift the political dynamic of the high court.

Conservatives are responding favorably to the potential of a Justice Elena Kagan while liberals worry that, by choosing her, the administration would miss the opportunity to elevate a genuine progressive.

John Manning, a conservative professor at Harvard Law School, where Kagan served as dean, told HuffPost that he would firmly support a Kagan nomination. Professor Charles Fried, a Reagan administration solicitor general, also said that he'd support a Kagan pick.

"She is a supremely intelligent person, really one of the most intelligent people I have encountered, and I have met a lot of them, as one does in this business. She is very adroit politically," said Fried. "She has quite a strong personality and a winning personality. I think she's an effective, powerful person and a very, very intelligent person, and a very hardworking and serious person."

Fried served on the Supreme Judicial Court of Massachusetts from 1995-1999 and is now at Harvard Law School. He said that Republicans would be well-advised to get behind her, but may decide to oppose just for the sake of opposition.

"Let's put it this way: she should be [backed by Republicans]. But it depends on the politics," he said. "Republicans may just decide that: 'We're going to say no to what Obama comes up with the first time and we'll come up with a reason why after we've decided that we're going to say no.' I can't predict that that's what they'll do or not. But she should be, she should be."

Fried has known Kagan for years and said he may even have had her as a student. He first met her when she was a visiting professor at Harvard. He was on the board that approved her for tenure and also on the selection committee that tapped her to be dean.

Stevens is known as a sharp political tactician and a persuasive jurist, the leader of the court's "liberal wing." Fried doesn't expect Kagan to be an ideological warrior, but, he points out, neither was Stevens when he came to the court.

"I don't think she's a heavily ideological person," says Fried. "But, you know, when John Paul Stevens was put on the court neither was he. And, in fact, though he never admits it, because he never admits anything, Stevens switched his position on a number of very important things as time went on and he became kind of the replacement for Bill Brennan. So, you know, you can't tell. But she is not an ideological person."

That kind of post-ideological posture certainly appeals to Obama, who presents himself as someone who wants to "move beyond" disputes between competing interests. Obama has recently moved beyond such disputes by making major concessions to his opponents, as he recently did with offshore drilling and nuclear energy.

Kagan, who knew Obama as a Harvard student and also went to Chicago after graduating, had a similar approach at Harvard, hiring a number of conservative professors.

"The faculty had been divided politically on left-right grounds and had difficulty making [faculty] appointments," said Harvard Professor Mark Tushnet. "But she was able to break the logjam by explaining to people that the law school was stagnating and that it could move forward only if it overcame these issues."

Fried was on that board. "I was on her appointments committee when we were choosing large numbers of people to bulk up the faculty. And she was fabulous in that position. And not ideological. Not ideological," he said.

The praise from conservatives may sound <snip>ing to those who worry that the court is too close to corporate interests and too willing to accommodate the radical expansion of executive power. Kagan has been criticized by civil libertarians for her expansive stance on detainee policy.

Glenn Greenwald wrote Friday that "replacing Stevens with Kagan... would shift the Court substantially to the Right on a litany of key issues (at least as much as the shift accomplished by George Bush's selection of the right-wing ideologue Sam Alito to replace the more moderate Sandra Day O'Connor)."

The 5-4 majority that has attempted to keep the executive branch in check could be in jeopardy. "Over the past decade, the Court has issued numerous 5-4 decisions which placed at least some minimal constraints on executive power. Stevens was not merely in the majority in those cases, but was the intellectual leader justifying those limits," Greenwald wrote.

Her writing on detainee policy and executive authority is perhaps her most controversial work.

"Kagan is unique in that, like Justice John Roberts, she's universally respected but hasn't written on divisive topics that could make confirmation difficult," says University of Pennsylvania Law Professor Theodore Ruger.

Kagan's adoration from conservatives could give her what one Supreme Court watcher described as "the easiest and more logical path forward." Her current position as solicitor general rebuts the critique that, unlike the other sitting justices on the court, she has never held a bench seat. And at 49 -- though, by the end of the month, 50 -- her age is tempting for a president looking to leave a stamp on the court. The fact that she was confirmed by the Senate for her current post just one year ago, by a 61 to 31 vote, adds to the thinking that Republicans will have a difficult task mounting a serious campaign against her now.

There has been some superficial concern over Kagan's religion -- not because she's Jewish but because without Stevens there will be no Protestants on the court. And chatter long ago surfaced about her sexual orientation, which some conservative figures have already floated as a potential issue.

But these are distractions not speed bumps, strategists predict, if Obama chooses to go with Kagan. When her name was floated as a nominee following the retirement of Justice David Souter, Republicans in the Senate couldn't deny how impressed they were with her potential.

"You have to admit Elena Kagan is a brilliant woman," Sen. Orrin Hatch (R-Utah.) said during an interview on conservative North Dakota radio last May. "She is a brilliant lawyer. If he picks her, it is a real dilemma for people. And she will undoubtedly say that she will abide by the rule of law."

For Obama, perhaps the most alluring element of a Kagan selection is that the work for the president would be minimal. The White House did an extensive vetting of her record during the last court opening. The president even met privately with her to discuss the opening. Since then, she's served in his administration. Were she to be nominated, the surprises in her confirmation process should be minimal.

Shriram Harid contributed reporting