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Supreme Court Experts React to Kagan Nomination

The Supreme Court

President Obama nominated current Solicitor General Elena Kagan to the Supreme Court to fill the seat that Justice John Paul Stevens will vacate later this summer when he retires. Several American University experts have provided expert analysis on the nomination process:

Stephen Wermiel, Fellow in Law and Government:

“Elena Kagan will bring to the Supreme Court a critically important pragmatic ability to get along with people of all views and the skill of knowing how to get things done. This is important on a Court that remains closely divided on many important issues. Working inside the Clinton administration and within Harvard Law School, she has used these practical abilities effectively, and she will bring that experience to the Court. Those who criticize her lack of experience as a judge should remember that she has actually drafted Supreme Court opinions as a law clerk to Justice Thurgood Marshall, so she would arrive knowing how the institution works and having more hands on experience than may seem to be the case at first glance.

Her confirmation may encounter a few bumps because of experience and some specific issues. One bump may be a law review article she wrote about 15 years ago in which she suggested that a searching, demanding confirmation hearing should be the norm for Supreme Court justices. In that article she criticized the lack of rigor and faulted the lack of insightful information gained in confirmation hearings in which nominees are permitted to give only vague and noncommittal answers about their constitutional views. Republican senators certainly can be expected to make much use of this article. Kagan tried mildly to distance herself from those views when she was confirmed to be Solicitor General last year, but she may face more questioning along the lines she suggested when she returns to the Senate Judiciary Committee this summer.”


Stephen Vladeck, Professor:

“Kagan has basically been the front-runner since the last nomination, and it’s hardly surprising that President Obama settled on someone with such stellar academic and governmental credentials. But more than a first-rate lawyer and legal thinker, Kagan, if confirmed, will also be the third woman on the Court—a first in its history—and the only one of the current Justices who was not previously a federal appellate judge.

Given what we know about her (and the Justice she would replace), it seems unlikely that she would alter the Court’s ideological balance in any meaningful way. Then again, the same exact sentiment was expressed 35 years ago about John Paul Stevens, whose massive shoes she is now slated to fill.

In nominating Solicitor General Kagan, President Obama seems to be shying away from the political fight that other names—including others rumored to be on the ‘short list’—might have raised. Whatever her opponents might say in attempting to rally behind in opposing her nomination, the bottom line is that Kagan is a safe choice, a reality that should placate moderates and independents, but also perhaps frustrate the President’s liberal base. This was an historic opportunity for President Obama. I just hope history doesn’t conclude that, in retrospect, it was a missed opportunity.”

Mary Lee Clark, Associate Professor:

“Elena Kagan is an outstanding nominee with superb credentials. I look forward to her service on the bench. As others have noted, Kagan's appointment would represent a breakthrough in expanding the number of women on the Supreme Court to three. It would also constitute a breakthrough in beginning to 'normalize' the appointment of women to the high court bench insofar as female justices would no longer be a one or at most two at-a-time phenomenon."

Daniel Marcus, Fellow in Law and Government:

"It is hard to imagine a better-qualified nominee. Kagan is very smart and tough-minded, and has a wealth of good experience -- as a lawyer and policy-maker in the Clinton White House, as a successful Dean at one of the nation's premier law schools, and as Solicitor General. She has the potential to be a real intellectual force on the Supreme Court."

William Yeomans, Fellow in Law and Government:

"Elena Kagan’s professional qualifications are exceptional. Whether as a student, academic, or government official, she has navigated her way through complex issues and highly competitive environments to rise to the top. She should – and doubtless will – be confirmed as our next Associate Justice of the Supreme Court. Sadly, her confirmation process is likely to be another in a series of stilted, unsatisfying and uninformative dances in which the nominee attempts to reveal as little as possible about herself while the opposition attempts to extract her allegiance to a series of outdated and simplistic talking points that distort the process of judging and the performance of the current Court. Ms. Kagan would do the nation an enormous service by adhering to her earlier call for nominees to be forthcoming and specific in discussing legal issues. The confirmation of a Supreme Court Justice is the only time that a substantial percentage of the American people focus on the work of the Supreme Court and the role of law in our society. It is time that a nominee led us through a mature discussion of those crucially important matters.

The paucity of information about Ms. Kagan’s views may put added pressure on her to be forthcoming at her hearing. It may also put added pressure on the White House to flesh out her record by producing documents relevant to her service in government. The administration should be responsive in producing documents to avoid any delay in moving the process forward."

William Snape, Practioner-in-Residence, Environmental Law:

“Elena Kagan will likely be an intellectual force on the Supreme Court and probably a solid counterweight to some of the current sitting ideologues. Her environmental background, in particular, is interesting. But there are questions. First, according to a law review article she wrote almost a decade ago, she appears to be a big believer in agency deference particularly if the President weighs in on the issue; this would have been problematic, for instance, with regard to President George W. Bush’s anachronistic beliefs on climate change. Second, it is not clear how Kagan would come down on so-called cost-benefit analyses in the context of environmental statutes with strong scientific requirements. These are some of the matters we should attempt to learn more about during her confirmation hearings."