Supreme Court Nominee Kagan Has Little History on Business Cases

May 10, 2010

Elena Kagan, who sources said would be nominated by President Barack Obama for the Supreme Court Monday, will, if confirmed, become the first justice in nearly 40 years who has never served as a judge.

Kagan, the solicitor general, has been a White House adviser during Bill Clinton’s presidency, a Harvard Law School dean and the U.S. government’s top appellate lawyer.

Obama had been urged by some senators to avoid naming another U.S. appeals court judge and select someone with broad experience. With Kagan’s academic and professional background, Obama apparently followed that advice.

The last two justices who had not been judges, William Rehnquist and Lewis Powell, joined the Supreme Court in 1972.

Kagan, 50, had been appointed by Obama as the first female solicitor general, representing the U.S. government before the Supreme Court. Her initial Supreme Court argument in September was her first in any court.

At her Senate confirmation hearing, Kagan still could face vigorous questioning by Republicans on hot-button issues like her opposition to on-campus military recruiting at Harvard because of U.S. policy barring gays from serving openly in the armed forces.

But her nomination is unlikely to cause a damaging fight in the Senate before congressional elections in November or distract the administration from other issues,

Obama has said he wants his choice approved before the start of the high court’s upcoming term in October. The retirement of liberal Justice John Paul Stevens, 90, who has been on the court for nearly 35 years, takes effect at the end of the current term in late June.

Kagan is not expected to change the court’s overall ideological balance. Like Stevens, Kagan in most cases probably would join the three other liberal justices on the court controlled by a five-member conservative majority.

She would join Ruth Bader Ginsburg and Sonia Sotomayor, who Obama appointed last year, as the court’s female justices.

“Kagan has significant demonstrated success in working with conservatives at Harvard Law School,” said attorney Tom Goldstein, who argues before the Supreme Court.

He predicted that Kagan would be confirmed without a significant disruption in Senate business or a big fight.

Goldstein, the founder of SCOTUSblog, which closely follows the Supreme Court, said in a recent post that no Republican senator had substantively criticized Kagan since she emerged as a leading contender for the vacancy.

He predicted Kagan would get about 65 votes, nearly the same number she received when confirmed as solicitor general. In the Senate, Democrats control 59 of 100 seats. A simple majority is needed for confirmation.

As solicitor general, a post that has been dubbed the “10th justice” because of the close relationship with the Supreme Court, Kagan has a mixed record in business cases.


She supported shareholders in a case about excessive mutual fund fees and backed investors in their securities fraud lawsuit against Merck & Co. Inc. over its withdrawn Vioxx pain drug. But she opposed foreign investors who want to sue in U.S. courts for transnational securities dealings.

Born in New York and the daughter of a lawyer who was a fair-housing advocate, Kagan graduated from Princeton University in 1981 and received her law degree from Harvard.

In 1988, she became a law clerk to Supreme Court Justice Thurgood Marshall. He was the last solicitor general to join the Supreme Court in 1967.

In 1991, Kagan began teaching at the University of Chicago Law School, where Obama also taught. Kagan focused on administrative law and the First Amendment, generally supporting free-speech rights.

Between 1995 and 2000, Kagan served as associate White House counsel in the Clinton presidency, deputy assistant to the president for domestic policy and deputy director of the domestic policy council.

She helped develop new tobacco regulations and worked on issues such as education, crime and welfare reform.

In 1999, Clinton nominated her to the U.S. court of appeals in Washington, but the Senate Judiciary Committee never scheduled a hearing for her.

Kagan became a law professor at Harvard and was named the dean in 2003. She was widely credited at Harvard with working well with warring liberal and conservative factions, a skill her supporters see as a consensus builder on the top court.

As solicitor general, she has been criticized by civil libertarians for some of the Obama administration’s positions.

She successfully urged the Supreme Court to reject or stay away from legal claims involving Guantanamo prisoners, including an appeal by several former detainees who sued over alleged abuse and torture.

(Editing by Peter Cooney)

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