President Obama’s Supreme Court Nomination Sets off Political Debate

If confirmed, Kagan would be the 112th justice to the Supreme Court and the third woman currently on the bench, the most ever at one time.

Kagan, who clerked for Justice Thurgood Marshall in the late 1980s, is the first woman to hold her current position as solicitor general, the White House’s chief lawyer, and was the first woman to serve as the dean of Harvard Law School. She would also be the only justice currently on the court not to serve as a judge.

"During her time in this office, she has repeatedly defended the rights of shareholders and ordinary citizens against unscrupulous corporations,” President Obama said Monday in his announcement.

The president nominates, the Senate confirms...

	Article Two of the U.S. Constitution specifies how a new Supreme Court justice must be chosen.

Article Two of the Constitution states that the president has the power to nominate justices to the nine-member body and must do so with the "advice and consent" of the Senate.

The Constitution makes no rules about the qualifications for a Supreme Court justice, but any appointee must first pass through the Senate Judiciary Committee and a vote in the full Senate.

Abner Mikva, a former federal judge and coworker of Kagan's in the Clinton White House, told the NewsHour that her varied background is "a plus, because, if you are a judge for any length of time …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."

Senate committee chairman Patrick Leahy of Vermont is confident Kagan will be confirmed. "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."

‘Don't Ask, Don't Tell’ at Harvard

	The nominee was the first female Dean of Harvard Law School and brought many conservative professors to the school while there.

Unlike previous nominees with long careers on the bench, it may be hard to figure out Kagan’s take on controversial issues or philosophy of law. While roundly appreciated as a brilliant legal mind and a capable leader of Harvard Law School, she confused many when she, a progressive liberal, brought many conservative professors to Harvard and welcomed a conservative legal organization called the Federalist Society.

The biggest issue at her confirmation hearings may turn out to be her repeated public opposition to the military policy of “Don’t Ask, Don’t Tell,” which prevents openly gay people from serving in the armed forces. 

“I abhor the military's discriminatory recruitment policy," she wrote in an email to the law school in 2003, calling it "a moral injustice of the first order." But in a pragmatic move that allowed Harvard to keep billions of dollars in federal funding, Kagan allowed the military to continue to recruit on campus through a veterans group and not the Offices of Career Services.

Ed Whelan of the National Review said she used "strikingly extreme rhetoric" against the military. Earlier this year, Defense Secretary Robert Gates said he supports President Obama’s decision to seek the repeal of “Don’t Ask, Don’t Tell.”

Nominating a justice can be a president’s longest lasting legacy

	President George W. Bush left the Supreme Court more conservative than when he took office by appointing Justice Samuel Alito.

Since Supreme Court justices serve a lifetime term - until they retire or die -- placing a judge on the court is one of the most lasting legacies a president can have. President George W. Bush replaced two judges in his eight-year presidency. 

Looking at the Supreme Court's composition, however, some analysts point out that President Bush swung the court toward the Right, while President Obama might leave the court more conservative than when he was elected. That’s because President Bush replaced the moderate Justice Sandra Day O’Connor with the reliably conservative Justice Samuel Alito, while the openings presented to President Obama were for two of the courts most liberal members: Justices David Souter and Stevens. 

President Obama has said he would like the Senate to confirm Kagan before lawmakers go on vacation in August. In a 1995 book review, Kagan wrote that she detests “polite and restrained” confirmation hearings, calling them a “vapid and hollow charade” and urging senators to fully explore a court nominee’s views. If they take her advice, there might be political fireworks in Washington all summer long.