By Lynn Sweet and Abdon M. Pallasch
President Obama will tap Solicitor General Elena Kagan for the Supreme Court vacancy created by the retirement of Chicagoan John Paul Stevens, a knowledgeable source told the Sun-Times on Sunday night.
Obama will announce Kagan’s appointment on Monday. If confirmed the Supreme Court for the first time will include three women–and three Jews, Kagan and Justices Ruth Bader Ginsburg and Stephen Breyer.
There is some symmetry in that Stevens was a University of Chicago graduate and Kagan and Obama both taught at the law school there together.
The former Harvard Law School dean clerked for former Supreme Court Associate Justice Thurgood Marshall and former Federal Appellate Judge Abner Mikva, an Obama confidant who has talked up Kagan for the supreme court since Obama took office.
Kagan, 50, was considered one of the safest bets for Obama because she had not worked as a judge and so had not authored any controversial opinions.
“Her scholarship was mostly in the area of first amendment, free speech issues,” at the University of Chicago, said Geoffrey Stone, who was dean of the school when she and Obama taught there in the ’90s. “She’s not someone driven by ideology – She’s driven by curiosity. More than anything she is a terrific lawyer.”
The selection of Kagan was the result of an overall strategy mapped by White House chief of Staff Rahm Emanuel, with the day-to-day work of whittling down the nominee list handled by White House Counsel Bob Bauer. Kagan and Obama’s fellow law lecturer Judge Diane Wood was also a finalist.
Part of that strategy involved another Chicagoan, Tina Tchen, chief of the White House Office of Public Engagement, who was involved in setting multiple meetings with the Obama-allied outside special interest groups who could be helpful in the confirmation.
Some conservatives are expected to criticize Kagan for Harvard Law School’s barring of military recruiters on campus when she was dean there because of the military’s don’t-ask-don’t-tell policy on gays. But as Solicitor General over the past year, she has sometimes taken stands backing presidential power that might have been at home in in the Bush Administration.
Is Kagan really a moderate?
“I think she’s a moderate-to-liberal, moderate progressive, along the lines of a [Justice Ruth Bader] Ginsberg or a [Justice Sonia] Sotomayor,” said Geoffrey Stone, who was her dean at the University of Chicago. “Basically she’ll replace Stevens, although I think Stevens is probably, at this point in his career somewhere to the left of where Elena would be.”
Kagan appeared on-stage with Stevens in Chicago a week ago at the 7th Circuit Bar Conference. She had offered to cede top billing to Stevens, but Stevens insisted on letting her be the main act. She used to opportunity to lavish praise on Stevens:
“How fortunate was this country to have had Justice Stevens’ service over these last 35 years?” she asked. She answered, “This country was fortunate beyond all measure.”
Sen. Dick Durbin (D-Ill.) on Friday said despite Kagan’s sterling resume, this close to a national election, he expects Republicans to make a fight out of anyone Obama nominates.
Stone said Kagan could command respect from judges on both sides of the ideological spectrum: “She was on the faculty … and during that time she won the respect of her colleagues…her students loved her classes,” Stone said.
Former student Jesse Ruiz, now chairman of the state Board of Education, remembers Kagan as “A really good professor, really concerned about teaching.” She was also an opera lover and a formidable opponent when she played on the faculty trivia tea against the student trivia team. Looking at photos of her playing Chicago-style 16-inch “Clincher” softball, Ruiz added, “and you can really see her knocking the crap out of a 16-inch softball.”
“She’s a great appointment,” agreed former University of Chicago Law Prof. Al Alschuler, who also taught with Kagan and Obama and now teaches at Northwestern. “She was extremely popular. I think everyone at Harvard admired her. She made friends when she was working at the White House. I think her confirmation process will go smoothly. She’s also the youngest [of the finalists Obama looked at] and that was probably a point.”
Kagan had one trait that surely did not hurt her with Obama, Alschuler said: “The only playoff game I’ve ever been to, she took me to. I about froze to death, but she insisted, she was a very strong White Sox fan while she was in Chicago.”