One month after Supreme Court Justice John Paul Stevens formally announced his
retirement, President Obama will nominate Solicitor General Elana Kagan as Stevens's replacement. The formal announcement is expected at
10 am EST today. Kagan has drawn some fire from the left for
her somewhat conservative views on executive privilege. The politics
of replacing a Supreme Court justice are never simple and Obama
likely has a tough challenge ahead in the Senate. Here are the theories
as to why he selected Kagan.
- GOP Senators Have Already Voted For Her ABC News' Jonathan Karl points out that Kagan was already confirmed by the Senate only a year ago when she was appointed as Solicitor General. "The 'yes' votes included two conservatives on the Judiciary Committee: Jon Kyl and Orrin Hatch. Democrats will make the case the case that if she's good enough to Represent the US before the Supreme Court, she's good enough to be on the court. ... Both Kyl and Hatch have met privately with Obama at the White House in recent days."
- Her Youth NBC News sees a simple numbers game. "At 50 years old, Kagan would be the youngest justice on the court, one of many factors working in her favor. She has the chance to extend Obama's legacy for a generation."
- Obama Wants 'Smooth Confirmation' This is an election year after all, writes Newsweek's Daniel Stone. "There’s reason to believe Kagan will be confirmed, and quickly. In her hearings last February to become solicitor general, the questions were relative softballs from both sides, mostly because her past didn’t contain many smudges to magnify. Having never been a jurist, the usual process of dissecting old opinions didn’t happen last time, and won’t this time either. Nor are controversial comments from past speeches (i.e. a 'wise Latina') likely to surface, as anything truly explosive probably would have been dug up by opponents during her last appointment to top government office."
- Has Scant Judicial Record The New York Times' Peter Baker looks at both sides. "That lack of time on the bench may both help and hurt her confirmation prospects, allowing critics to question whether she is truly qualified while denying them a lengthy judicial paper trail filled with ammunition for attacks. As solicitor general, Ms. Kagan has represented the government before the Supreme Court for the past year, but her own views are to a large extent a matter of supposition."
- Not Her Ideology, Her 'Gravitas' The Washington Post's Michael Shear explains, "Obama wants someone who can serve as a counterweight to the intellectual heft of Chief Justice John Roberts. Regardless of how strong a liberal Kagan would prove to be, as a former dean of Harvard Law School, Kagan practically defines legal gravitas. ... The White House and the Democrats on the Hill are not looking for a huge fight just before the midterm elections, so there's a hope that the nominee will not spark the kind of rigid, unified opposition that the Republicans have offered this year in other contexts."
- Ideologically and Professionally Close With Obama The Atlantic's Marc Ambinder follows their many connections. "Kagan is part of the club. She was a domestic policy adviser during the Clinton administration. She tried to get Obama to become a Harvard Law prof. She and he are brilliant, detached, and of like minds. She has many ties in the administration. Like Obama, she seems to be a proponent of a vigorous constitutional system of balanced powers, in which Congress, the Courts and the Executive Branch compete transparently. Critics of her interpretation of the laws of war ought to realize that this interpretation reflects her boss's own."
- Liberals Don't Like Her Conservative law blogger Stephen Bainbridge sighs, "The enemy of my enemy may not be my friend, but she's probably acceptable. ... When I look at some of the lefties who are opposing her and their reasons for doing so, however, I'm tempted to conclude that she's the most acceptable--from my perspective--candidate Obama is likely to put forward for the SCOTUS. You can tell a lot about a person from who their enemies are."