Fordham Law


Reports: Obama to Nominate Elena Kagan to Supreme Court

Dean William Michael Treanor in WNYC, May 09, 2010

Media Source

by Stephen Nessen

President Barack Obama will nominate Solicitor General Elena Kagan to the Supreme Court on Monday, according to multiple reports. Kagan, who was born and raised in New York, would replace the retiring Justice John Paul Stevens.

Kagan, 50, grew up on the Upper West Side of Manhattan and graduated from Hunter College High School. She is the first female solicitor general and was the first woman dean of Harvard Law School. As solicitor general, a position at the Department of Justice often referred to as the tenth justice, Kagan represents the federal government in Supreme Court and appellate cases. Kagan has never been a judge, though, and if confirmed, she would be the first person in almost four decades to join the court without such experience.

Before joining the Obama administration, Kagan was the dean of Harvard Law School for six years, worked in the Clinton White House as a senior lawyer, and clerked for Justice Thurgood Marshall, whose portrait hangs in her office. Last year Kagan told NPR that Marshall mentored her and even called her “shorty” on occasion.

Dean William Treanor of Fordham Law School says Kagan was one of the best Harvard deans of the last 30 years. When she arrived, he says, Harvard had been very ideologically divided for decades. She hired conservative teachers, won over the students, and bridged a deeply divided faculty.

“Her great strength is her ability to form coalitions and get a very decisive group to be a strong community,” Treanor says.

He says Justice Stevens was able to reach across ideological lines and expects Kagan will do the same, particularly on cases in which the Supreme Court is narrowly divided and cases with no clear ideological divisions.

Barry Friedman, Vice Dean at NYU School of Law, thinks Kagan’s ability to bring people together and possibly sway Justice Anthony Kennedy, who is seen as the deciding vote in many cases, is why President Obama nominated her.

Friedman says that, barring any controversial views expressed during her confirmation hearings, he expects the conirmation process to go smoothly.

Treanor describes Kagan as a warm person with a good sense of humor -- not what most people expect of a Harvard dean, he says. Others have praised her solid administrative skills and writing skills.

Prior to her appointment as solicitor general she had never argued a case in any court. During her confirmation hearing for that post, Republican Senators Tom Coburn and John Kyl likened her appointment to a surgeon working on a patient with no practical experience.

Nate Persily, professor of Law and Political Science at Columbia Law School, says Kagan should be able to be confirmed and that people from across the political spectrum will embrace her, though liberals may have preferred Judge Diane Wood or Judge Sidney Thomas.

“She’ll be the third woman, so we’ll have reached an unprecedented level of gender diversity on the court,” Persily says.

Persily says A Kagan confirmation could also affect future Supreme Court appointments; President Obama could face less pressure to appoint a female replacement if Justice Ruth Bader Ginsburg resigns.

“I think that’s certainly a factor that has played into considerations with her. But she’s a stellar candidate,” Persily says.

Perisly also says it helps that Kagan hasn’t staked out ideological positions on hot button issues like abortion or affirmative action.

One possible point of contention may be Kagan’s role as a as a member of the Research Advisory Council of the Goldman Sachs Global Markets Institute, a position she held from 2005 to 2008 during her time as dean of Harvard Law School. She was paid a stipend of $10,000.


Contact: Carrie Johnson
Email: cjohnson@law.fordham.edu