PRESIDENT BARACK OBAMA'S NOMINATION of Solicitor General Elena Kagan to the U.S. Supreme Court is a pragmatic attempt to bring more diversity to the court without triggering an all-out confirmation battle.
Kagan would be the youngest justice at 50 and the only one without prior experience as a judge. She would increase the number of women justices to three, and her consensus-building skills would be an asset on the often-divided court. Yet she was neither the most conservative nor the most liberal of Obama's possible choices, and there is little in the written record for her opponents to attack.
Kagan's legal intellect is respected by all sides, and she is well liked by liberals and conservatives. Upon her nomination for solicitor general last year, eight former solicitors general, including conservatives Kenneth Starr and Ted Olson, supported her. Seven Republican senators voted for her confirmation then, and there is no apparent reason for them to shift their opinions now.
A graduate of Princeton University and Harvard Law School, Kagan has worked across the ideological spectrum. She served as a law clerk for a civil rights icon, Justice Thurgood Marshall. As the first woman dean of Harvard Law School, she brought prominent conservative scholars into the faculty mix. The president said Kagan would be cognizant of the way the law impacts "the lives of ordinary people," a quality not often evident on this Supreme Court.
Public service is a common thread running through Kagan's work experience. She was an aide in the Clinton administration, a professor at the University of Chicago Law School and at Harvard, then law school dean at Harvard before becoming the country's first woman solicitor general. Her lack of experience as a judge should be an asset rather than a liability. Prior experience on the bench has offered no guarantee that every Supreme Court opinion is well reasoned. In other eras there have been effective justices, including Earl Warren and William Rehnquist, who arrived at the court with no experience as a judge.
Despite her thin paper trail, there are some likely flash points. Conservatives will question Kagan's well-known opposition to allowing military recruiters on Harvard's campus because of the military's discriminatory "don't ask, don't tell" policy. But since then, "don't ask, don't tell" has been repudiated by key members of the military itself, and the policy is being revisited. Kagan may also have to defend herself against critics on the left who see her as too willing to expand presidential power, a fear that is acute since the executive power grabs of President George W. Bush.
Both of these issues can be fleshed out during the Senate confirmation process, which could be more useful than recent confirmations of Supreme Court justices that were little more than partisan posturing. Most of Kagan's writings have been stiffly academic, and she has no judicial record to plumb. The Senate and the American people need to get to know her better. Kagan's legal brilliance, appreciation for differing views and engaging personality should enable her to navigate the confirmation process quite nicely.