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Obama’s Second Pick to Court Renews Debate on Judicial Qualifications

May 10, 2010 at 12:00 AM EST
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President Obama nominated Solicitor General and former Harvard Law School Dean Elena Kagan to fill Justice John Paul Stevens' seat on the Supreme Court. Gwen Ifill gets four points of view from constitutional and Supreme Court experts on the announcement and Kagan's qualifications for the bench.
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GWEN IFILL: In nominating Elena Kagan to the high court, President Obama chose a legal scholar with liberal views and conservative friends.

Kwame Holman begins our coverage.

KWAME HOLMAN: The president made the announcement in the East Room of the White House, flanked by the nominee and Vice President Joe Biden.

U.S. PRESIDENT BARACK OBAMA: Thank you.

KWAME HOLMAN: Mr. Obama’s decision follows a month-long search to fill the seat of Justice John Paul Stevens, who is retiring after 35 years.

BARACK OBAMA: While we can’t presume to replace Justice Stevens’ wisdom or experience, I have selected a nominee who I believe embodies that same excellence, independence, integrity and passion for the law, and who can ultimately provide that same kind of leadership on the court: our solicitor general and my friend, Elena Kagan.

KWAME HOLMAN: If confirmed, Kagan would join Justices Ruth Bader Ginsburg and Sonia Sotomayor as the third woman on the court, the most in its history.

The president said, Kagan’s nomination was much deserved.

BARACK OBAMA: Elena is widely regarded as one of the nation’s foremost legal minds. She’s an acclaimed legal scholar with a rich understanding of constitutional law. She is a former White House aide, with a lifelong commitment to public service and a firm grasp of the nexus and boundaries between our three branches of government.

She is a trailblazing leader, the first woman to serve as dean of Harvard Law School, and one of the most successful and beloved deans in its history.

KWAME HOLMAN: Elena Kagan is 50 years old and was born in New York City. She received her bachelor’s degree from Princeton, her master’s from Oxford, and her law degree from Harvard.

If confirmed, she would be the only justice who has not served as a judge, although she did clerk for Justice Thurgood Marshall in the late 1980s. For the past year, Kagan has served as solicitor general, the administration’s chief lawyer. She also is the first woman to hold that position.

Kagan spoke after the president finished his remarks.

ELENA KAGAN, Supreme Court nominee: Thank you, Mr. President.

I am honored and I am humbled by this nomination and by the confidence you have shown in me.

During the last year, as I have served as solicitor general, my longstanding appreciation for the Supreme Court’s role in our constitutional democracy has become ever deeper and richer.

The court is an extraordinary institution in the work it does and it the work it can do for the American people by advancing the tenets of our Constitution, by upholding the rule of law, and by enabling all Americans, regardless of their background or their beliefs, to get a fair hearing and an equal chance at justice.

KWAME HOLMAN: The focus on Kagan now shifts to Capitol Hill, where she will begin this week making courtesy calls on members of the Senate Judiciary Committee, who will vote on whether to send her nomination to the full Senate.

The committee’s chairman, Patrick Leahy, said he was pleased the president picked someone outside the judicial monastery and predicted Kagan would be confirmed.

SEN. PATRICK LEAHY, D-Vt., Judiciary Committee chairman: I think she’s going to be very, very impressive in the — in the confirmation hearing.

You know, we have some Republicans who would automatically oppose anybody who was nominated. Come on. We’re talking about a Supreme Court justice. Let’s look at the qualifications, vote up, vote down. She will be confirmed.

KWAME HOLMAN: But the top Republican on the Judiciary Committee, Jeff Sessions, said it was too soon for his colleague to make such pronouncements.

SEN. JEFF SESSIONS, R-Ala.: Yes, that’s premature. But he’s confident. And he should be. I mean, the Democrats have a large majority. Most would be inclined to support the president’s nominee.

But this is going to be a real confirmation process. And if the nominee can’t meet the basic standards of a judge and convince, you know, enough senators that she’s capable of doing that, then I think the nominee could have trouble.

KWAME HOLMAN: No dates for confirmation hearings have been set, but the president has said he wants the full Senate to vote on Kagan’s nomination before it leaves for the August recess.

GWEN IFILL: So, we turn now to four voices to help answer the question: Who is Elena Kagan?

Abner Mikva, a former federal judge, member of Congress, and White House counsel, Kagan clerked for him and also worked with him in the Clinton White House — Marcia Greenberger, a friend of Kagan’s and co-president of the National Women’s Law Center, John Manning, a Supreme Court clerk for Justice Antonin Scalia who was later hired by Kagan as a professor at Harvard Law School, and NewsHour regular Marcia Coyle of “The National Law Journal.”

Marcia, you have been covering Solicitor General Kagan in that role for the last year-and-a-half. And she has argued before the court. What kind of a solicitor general has she been? What have we learned about that that would tell us what kind of justice she would be in the same chambers?

MARCIA COYLE, The National Law Journal: Well, I think, first, her style is very distinctive.

It was hard to believe last fall that she was arguing her first case ever in any appellate court when she took on the campaign finance case Citizens United in the Supreme Court. She’s very energetic at the podium, but also easygoing and has a quick sense of humor. And she seems to really enjoy engaging with the justices. She’s not intimidated at all by them.

She chose Citizens United, which was — as her first case, which was a very complicated case, and it was clear that the government had an uphill battle trying to win that case. The government lost it.

But she’s also taken on the term’s only terrorism-related case. She’s defending a federal law that bars material support of designated terrorist organizations. And she’s argued four other cases that are in a variety of areas of the law. The government did win the case she argued trying to support a congressional law that allows a cross to stay erected in the Mojave Desert.

GWEN IFILL: Judge Mikva, you have known her for quite some time. What we know about her, a fairly — fairly elite background. She was raised on the Upper West Side. She went to Harvard. She was dean of — or she was dean of Harvard, went to Princeton.

And she seems to — what — what can you tell us about her that we don’t know? What would surprise us?

ABNER MIKVA, former federal judge: Well, I’m not sure that this will surprise anybody, but she’s one of the — she is one of the brightest legal minds that I have ever run across.

I had some 45 clerks. They were all great. We were a feeder court to the Supreme Court, so we had lots of applications. But the first time I met Elena, you could tell that she — she not only knew the law, but she was comfortable about her knowledge of the law. She didn’t have to jump out of her shoes to tell you how much she knew. She could listen to the question and think about it and come up with a thoughtful answer. That’s very important for a justice.

GWEN IFILL: John Manning, aside from the fact that she did give you a job, you don’t necessarily agree on a lot of things.

GWEN IFILL: But let me ask you the same — the same question. What don’t we know about her?

JOHN MANNING, Harvard Law School: Well, I think that a lot is known about her right now.

GWEN IFILL: Now.

JOHN MANNING: You know, she is very bright. And I suppose — I think this has been said, but I think it’s an important thing to emphasize. She has a great amount of intuition about human nature. She’s very psychologically astute. And I think that she’s a very open person.

She’s done a lot to improve the culture at the Harvard Law School. And I think that she will be a very effective member of the court, not merely because she’s a brilliant mind and an excellent lawyer, but because she understands human nature and understands institutions.

And, so, I think that she will be a sort of, you know, glue in that institution that holds in — helps to hold the institution together.

GWEN IFILL: Marcia Greenberger, let’s pick up on that glue idea, because one of the things people have said about her is that she seems to be able to persuade. Does that have anything at all to do with her being a woman?

MARCIA GREENBERGER, co-president, National Women’s Law Center: Well, it’s an interesting question. I think one thing that I agree with is that she listens to people, and she doesn’t automatically jump in with her own opinion first. She’s very comfortable about her own capacity, but she’s also open to what other people have to say.

The other thing, to me, that is such an important quality is, I think she actually genuinely likes people and she likes to engage with people. So, I think that will all help her with her relationships with her colleagues on the bench, with her ability to hear what the different sides of an argument have to truly say.

And I think that’s part of why she will be so effective, assuming she is confirmed.

GWEN IFILL: Does it matter — does it matter that there will be three women?

MARCIA GREENBERGER: I — to me, I think it makes a big difference, for several reasons.

One of the historic things that people used to joke about was that, with two women on the court, for a long time, Sandra Day O’Connor and Justice Ruth Ginsburg, lawyers used to call them by each other’s names and confuse them. They were still tokens. It was still: It’s one of the two women.

Having more women turns those women justices into justices, and makes them part of the normal routine, that we have male and female justices. They see the world in a way that can enrich each other’s perspectives. And I think that’s very important.

GWEN IFILL: Marcia Coyle — we have two Marcias — that way, we get around this “calling each other by each other’s names” problem — you have seen Justice Sotomayor, President Obama’s first pick on the court.

MARCIA COYLE: Yes.

GWEN IFILL: Now you see his second pick. What does it tell us, if anything, so far about the president’s priorities?

MARCIA COYLE: Well, I think he has stated often that he’s looking for diversity. He wants the court to be more representative of America.

And, certainly, this — this is one way to do it. Actually, state courts have many more women on them than the Supreme Court ever had. They’re way ahead in terms of diversifying the bench. So, I think he’s achieved that.

But I also think that — that, when you look at his list, what was considered his short list, it was dominated by women. And they are some of the best legal minds in the country. So, I think he was looking for diversity in experience. And, also, I think he was looking for someone who can really do the job.

GWEN IFILL: Judge Mikva, you’re — you served on the bench. But, as someone who did, here, the president picked someone who never has. And I think the last time that happened was with Justice Rehnquist.

How significant it that she doesn’t have that kind of judicial experience?

ABNER MIKVA: Well, I think it’s a plus, because some of our greatest justices had never had any judicial experience before they were nominated, Justice Brandeis, Justice Black, Justice Douglas. They all came from other arenas, rather than the judiciary.

And I think it’s a plus, because, if you are a judge for any length of time — and I know, I think, because I was one — your — your focus becomes narrower. You are talking to other judges. And even your discussions with lawyers are where they are the supplicants and you are sitting on a high bench looking down on them.

And that narrows one’s point of view and one’s vision about where the country is. And I think the fact that she has been at the other side of the bench for most of her career, and she has been dean of a law school that — I guess I can say it more directly than professor Manning — it was a very fractious law school faculty that she took on and brought together and made them feel more collegial about themselves.

And these are experiences that are going to do the court — stand the court in good stead, because it is an other experience, rather than just having another appellate court judge come on there and bring the same point of view that the other eight have already brought.

GWEN IFILL: John Manning, let’s talk about that fractious law school.

JOHN MANNING: Sure.

GWEN IFILL: You were hired.

GWEN IFILL: You came — you came on with Dean Kagan at the time with a resume in hand that said you had worked for Judge Bork.

JOHN MANNING: Correct.

GWEN IFILL: You had worked for Justice Scalia.

JOHN MANNING: Yes.

GWEN IFILL: Did you expect to get the job, or did you think that maybe she might show you the door?

JOHN MANNING: I was — I was very happy to get the job.

And I think that one of the nice things about Elena and the Harvard Law School is that I — I am a conservative. I was hired by the Harvard Law School. I didn’t feel that she hired me because I was a conservative. I felt that she hired me because of the scholarship and the teaching and the other things that, you know, you would take into account in making a hire. And it didn’t matter to her whether I was conservative.

GWEN IFILL: Did you understand her to be a liberal?

JOHN MANNING: Oh, yes. I mean, she is definitely in the progressive side of the spectrum.

But that’s — that’s the — the thing about Elena Kagan that makes her a very good choice to be a judge is that she understands how to separate her personal views from her institutional role. And I saw this again and again at Harvard.

We probably disagree about a lot of things, but it never really made any difference in the way she — it never made any difference in the way that she treated me as a faculty member. She asked me my — at the end of my first year on the faculty to chair the hiring committee.

And, you know, it didn’t, I think, even enter her mind that it would be an issue that I was conservative on a — conservative on a faculty that was predominantly progressive.

GWEN IFILL: You see, that’s exactly what is bothering a lot of liberals, Marcia Greenberger.

You hear that people on the right are saying that she is way too — she doesn’t have the experience to do this. And people on the left are saying, she is a little bit too accommodating to conservatives.

MARCIA GREENBERGER: Well, I think she certainly is an open-minded person.

But I also think that she’s somebody who comes with a deep respect for the Constitution. She cares about the precedent. She looks and listens. And I think, at the end of the day, that is what people are looking for in a justice on the Supreme Court. And those are the qualities, along with her extraordinary intellect and very broad-reaching view and experience with the law, that will make her and stand her in good stead, assuming that she’s confirmed.

GWEN IFILL: Marcia Coyle, the court has famously split a lot of the time 5-4, 5-4. And she is replacing Justice Stevens, who was appointed by a Republican, but has generally ended up on the liberal side of the spectrum.

Do you think — is there any way to know whether someone who comes into a job like this — and you have been covering it long enough to watch it happen — makes a difference immediately?

MARCIA COYLE: Well, I think a new justice always makes a difference in one respect.

GWEN IFILL: We’re assuming for a moment that there is a confirmation in the offing, but go ahead.

MARCIA COYLE: Exactly. Yes, exactly.

Justices Breyer and other — Chief Justice Roberts and others have spoken about how a new justice immediately changes the dynamic of the court. In a way, I suppose, it’s almost like marrying into a new family.

This court, in the last five years, will have, if Solicitor General Kagan is confirmed, will have seen four new justices in five years. Prior to that, they had been alone as a sitting court for 11 years without any changes.

So, having that much turnover and a new justice coming on again changes the dynamics, in that they have to get used to each other. They have to figure out how each thinks, how each approaches constitutional questions and statutory questions. So, I think, yes, a new justice has an immediate impact.

It’s harder to gauge long-term. There are areas of the law where Justice Stevens was able to get Justice Kennedy on — who is generally on the conservative wing of the court, to come along, to make liberal victories, and also areas of the law where he was able to get or work with Justices Scalia and Thomas.

For example, if a Justice Kagan is more conservative than Justice Stevens, we could see changes in cases involving executive power. Justice Stevens and Justice Kennedy were out front in handing the Bush administration some of its biggest defeats in terrorism-related cases. And that involved executive and congressional power.

And, also, in the criminal justice area, we don’t know how a Justice Kagan would view the death penalty, for example — Justice Stevens came to believe it was unconstitutional — and also in criminal sentencing. Those are areas — and campaign finance — where it could make a difference.

GWEN IFILL: OK.

And we will be taking it all one by one.

Judge Abner Mikva, Marcia Coyle, of course, John Manning, and Marcia Greenberger, thank you all very much for that first pass.