President Barack Obama selected Elena Kagan, his top U.S. Supreme Court lawyer and the former dean of Harvard Law School, to fill a vacancy on the high court, a person familiar with the decision said.
Kagan, whose appointment would give the court three female members for the first time, would succeed retiring Justice John Paul Stevens and likely take his place in the court’s liberal wing. The White House is planning to announce the selection at 10 a.m. Washington time today, said the person, who spoke on condition of anonymity.
Kagan, 50, a New York native and former Clinton administration official, will face attacks from Republicans for opposing military recruiting on the Harvard campus because of the services’ gay ban.
Still, confirmation is probable because Democrats and independents hold 59 seats in the Senate and need help from only a single Republican to ensure a floor vote on the nomination. Justice Sonia Sotomayor last year won confirmation 68-31, with nine Republicans voting to approve her.
Kagan, whom Obama appointed as the first female U.S. solicitor general, would be the youngest member of the nine-justice court and the only one who hadn’t previously served as a lower court judge. She won confirmation as solicitor general last year on a 61-31 vote.
A Bridge Builder
She built a reputation at Harvard as a bridge builder, supporting conservatives Jack Goldsmith and John Manning for teaching positions. Faculty colleagues including Charles Fried, who served as solicitor general under Republican Ronald Reagan, credit her with easing the ideological strife that had pervaded the campus. Kagan also hosted a celebration at Harvard honoring conservative Justice Antonin Scalia.
Fried was one of five former Republican solicitors general to support her nomination for that position last year. Although some Republicans questioned whether she had enough experience for the post -- she had never argued a case in court -- she won confirmation 61-31.
Kagan has limited her public comments on policy issues, creating only a handful of openings for opponents to attack her fitness for the court.
She has drawn criticism for her efforts to block military recruiters from the Harvard Law School campus. Kagan backed a challenge to a law that required universities receiving federal funding to give the military equal access. The Supreme Court unanimously upheld the law in 2006.
Forced to Recuse
Her stint as solicitor general would probably prevent her from taking part in some Supreme Court cases early on. The last solicitor general to ascend to the court, Thurgood Marshall, disqualified himself in more than 60 argued cases in his first term, mostly because his office had played a role in the litigation.
Kagan attended Princeton University and then Harvard Law School. She clerked for Marshall, whom she describes as one of her heroes, and spent two years as a litigator at Williams & Connolly LLP in Washington. She later took a teaching job at the University of Chicago Law School, where she helped recruit Obama to the faculty.
Kagan worked in the Clinton administration’s White House counsel’s office and then as a domestic policy adviser, acting as the administration’s lead negotiator on anti-tobacco legislation. In 2003, she became the first female dean of Harvard Law School.
Since being nominated as solicitor general, Kagan has disappointed liberals with some of her positions, particularly on terrorism questions.
At her confirmation hearing last year, she said that, should U.S. agents capture a suspected al-Qaeda fundraiser abroad, that person could be held indefinitely as an enemy combatant.
As solicitor general, she urged the Supreme Court to block Guantanamo Bay inmates who weren’t considered a threat from being released into the U.S.
In a 2001 law review article Kagan argued for stronger presidential control over administrative agencies, a position more often associated with conservative scholars.
Kagan was one of four people who interviewed with Obama in person for the vacancy. The president also met with federal appellate judges Merrick Garland of Washington, Diane Wood of Chicago and Sidney Thomas of Montana. Kagan was one of four candidates who met with Obama last year before he picked Sotomayor.
Kagan, who is Jewish, isn’t married and doesn’t have children. Stevens’ retirement will leave the court without any Protestant members for the first time.