A Vacancy on the Court
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The Nomination of Elena Kagan

With his second nomination to the Supreme Court, President Obama has demonstrated a rather straight-forward approach to selecting his choices. Sonia Sotomayor was the leading candidate for the first vacancy and Elena Kagan was atop the leader board for this second vacancy. As the youngest on Obama's short list of potential nominees (50), an academic of considerable stature (dean of Harvard Law School), and the solicitor-general, Kagan provides the president a woman with strong credentials, a judicial philosophy and political ideology that will satisfy Democrats, and with a public record that will frustrate any effort by the president's opponents to scuttle the nomination. Assuming nothing untoward arises about this nominee, her confirmation is quite certain.

Kagan's biographical information can be found in any number of media sources, including Wikipedia. What distinguishes this nomination historically, though, is her lack of judicial experience, her experience as solicitor-general, and her academic credentials. In the post-Nixon era, all confirmed nominees have had some experience as a judge. Nixon's appointments of Lewis Powell and William Rehnquist (1972) brought two onto the Court without judicial experience. Justice O'Connor's experience was limited to an appellate state court. Clarence Thomas had less than two years on the DC Circuit Court. This should be a nonissue, given the prominence of certain justices who have had no judicial experience. Ironically, Kagan was nominated by President Clinton to the DC Circuit Court in 1999, but the Republican controlled Judiciary Committee chaired by Orrin Hatch never considered the nomination. When President Bush came into office, he successfully appointed the future Chief Justice, John Roberts, to that DC Circuit seat.

Kagan will be the fifth solicitor general to ascend to the Court, the most recent being Thurgood Marshall, who served as solicitor general from 1965 to 1967 when he was appointed to the Court. One thread that ties Kagan to those who have come before is her experience as a clerk to Justice Marshall for the 1987-88 term.

Working in academe as a professor is not that common among justices, at least not prior to becoming a justice. Neither is it particularly rare, Justice Stevens and Justice Scalia being examples on the current Court. Few, however, have the academic background of Kagan. It appears that the justice who served most recently as a dean prior to coming on the Court was Wiley Rutledge, who served as dean of the Washington University School of Law in St. Louis from 1930 to 1935 and at the University of Iowa College of Law. Rutledge was but one of FDR's choices from academe to come to the Court—Felix Frankfurter and William O. Douglas being the most prominent.

Assuming Kagan is confirmed, the Court will be without a Protestant on the Court for the first time in its history. In earlier times, religion was an extremely sensitive variable that presidents had to consider in making an appointment. The furor over the appointment of Louis Brandies as the first of Jewish faith to serve was distinctly a factor in the considerable opposition to his confirmation in 1916. While that seems to be behind us now, don't rule it out as a basis for opposition by some.

To understand the appointment process, you are invited to explore the many pages of this site, the links at the top or bottom of this page addressing specifically the Stevens vacancy and subsequent Kagan nomination. The links along the left side present the process more generally and in historical perspective.



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Created on May 10, 2010 by GW