Obama Selects Kagan for Supreme Court
WASHINGTON — President Obama will nominate Solicitor General Elena Kagan
as the nation’s 112th justice, choosing his own chief advocate before the Supreme
Court to join it in ruling on cases critical to his view of the country’s future, Democrats close to the White House said on Sunday.
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Solicitor General Elena Kagan in 2009.
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After a monthlong search, Mr. Obama informed Ms. Kagan and his advisers on Sunday of his choice to succeed the retiring Justice John Paul Stevens. He plans
to announce the nomination at 10 a.m. Monday in the East Room of the White House with Ms. Kagan by his side, said the Democrats, who insisted on anonymity to discuss the decision before it was formally made public. In settling on Ms. Kagan, the president chose a well-regarded 50-year-old lawyer who served as a staff member in all three branches of government and was the first woman to be dean of Harvard Law School. If confirmed, she would be the
youngest member and the third woman on the current court, as well as the first justice in nearly four decades without any prior judicial experience. That lack of time on the bench may both help and hurt her confirmation prospects, allowing critics to question whether she is truly qualified while denying them a lengthy judicial paper trail filled with ammunition for attacks. As solicitor general, Ms. Kagan has represented the government before the Supreme Court for the past year, but her own views are to a large extent a matter of supposition. Perhaps as a result, some on both sides of the ideological aisle are suspicious of her. Liberals dislike her support for strong executive power and her outreach to conservatives while running the law school. Activists on the right have attacked
her for briefly barring military recruiters from a campus facility because the ban on openly gay men and lesbians serving in the military violated the school’s anti-discrimination policy.
Replacing Justice Stevens with Ms. Kagan presumably would not alter the broad ideological balance on the court, but her relative youth means that she could have an influence on the court for decades to come, underscoring the stakes involved. In making his second nomination in as many years, Mr. Obama was not looking for a liberal firebrand as much as a persuasive leader who could attract the swing vote of Justice Anthony M. Kennedy and counter what the president sees as the
rightward direction of the court under Chief Justice John G. Roberts Jr.
Particularly since the Citizens United decision invalidating on free speech grounds the restrictions on corporate spending in elections, Mr. Obama has publicly criticized the court, even during his State of the Union address with
justices in the audience.
As he presses an ambitious agenda expanding the reach of government, Mr. Obama has come to worry that a conservative Supreme Court could become an obstacle down the road, aides said. It is conceivable that the Roberts court could eventually hear challenges to aspects of Mr. Obama’s health care program or to other policies like restrictions on carbon emissions and counterterrorism practices.
With all signs pointing to a Kagan nomination, critics have been pre-emptively attacking her in the days leading up to the president’s announcement. Paul Campos, a law professor at the University of Colorado, Boulder, writing on The
Daily Beast, compared her to Harriet E. Miers, whose nomination by President
George W. Bush collapsed amid an uprising among conservatives who considered her unqualified and not demonstrably committed to their judicial philosophy. M. Edward Whelan III, president of the Ethics and Public Policy Center in Washington, wrote on National Review’s Web site that even Ms. Kagan’s
nonjudicial experience was inadequate. “Kagan may well have less experience relevant to the work of being a justice than any entering justice in decades,” Mr. Whelan wrote.
Ms. Kagan defended her experience during confirmation hearings as solicitor general last year. “I bring up a lifetime of learning and study of the law, and particularly of the constitutional and administrative law issues that form the core of the court’s docket,” she testified. “I think I bring up some of the
communications skills that has made me — I’m just going to say it — a famously
Ms. Kagan was one of Mr. Obama’s runners-up last year when he nominated
Sonia Sotomayor to the court, and she was always considered the front-runner this year. The president also interviewed three other candidates, all federal appeals court judges: Merrick B. Garland of Washington, Diane P. Wood of
Chicago and Sidney R. Thomas of Montana.
Ms. Kagan had several advantages from the beginning that made her the most obvious choice. For one, she works for Mr. Obama, who has been impressed with her intelligence and legal capacity, aides said, and she worked for Vice President Joseph R. Biden Jr. when he was a senator. For another, she is the youngest of the four finalists, meaning she would most likely have the longest tenure as a justice. Ms. Kagan was also confirmed by the Senate just last year, albeit with 31 no votes, making it harder for Republicans who voted for her in 2009 to vote against her in 2010.
The president can also say he reached beyond the so-called “judicial monastery,”
although picking a solicitor general and former Harvard law dean hardly reaches outside the Ivy League, East Coast legal elite. And her confirmation would allow Mr. Obama to build on his appointment of Justice Sotomayor by bringing the number of women on the court to its highest ever (three, with Justice Sotomayor and Justice Ruth Bader Ginsburg).
Moreover, in his selection of finalists, Mr. Obama effectively framed the choice so that he could seemingly take the middle road by picking Ms. Kagan, who correctly or not was viewed as ideologically between Judge Wood on the left and Judge Garland in the center.
Judge Garland was widely seen as the most likely alternative to Ms. Kagan and the one most likely to win easy confirmation. Well respected on both sides of the aisle, he had a number of conservatives publicly calling him the best they could hope for from a Democratic president. Senator Orrin G. Hatch of Utah, a
Republican member of the Judiciary Committee, privately made clear to the president that he considered Judge Garland a good choice, according to people briefed on their conversations.
But Mr. Obama ultimately opted to save Judge Garland for when he faces a more hostile Senate and needs a nominee with more Republican support. Democrats expect to lose seats in this fall’s election, so if another Supreme Court seat comes
open next year and Mr. Obama has a substantially thinner margin in the Senate than he has today, Judge Garland would be an obvious choice.
As for Ms. Kagan, strategists on both sides anticipate a fight over her confirmation but not an all-out war. The White House hopes the Senate Judiciary Committee can hold hearings before July 4, but some Congressional aides were skeptical. Either way, Democrats want Ms. Kagan confirmed by the August recess so she can join the court for the start of its new term in October. A New Yorker who grew up in Manhattan, Ms. Kagan earned degrees from Princeton, Oxford and Harvard Law School, worked briefly in private practice, clerked for Justice Thurgood Marshall, served as a Senate staff member and
worked as a White House lawyer and domestic policy aide under President Bill
Clinton. She was nominated for an appeals court judgeship in 1999, but the Senate never voted on her nomination.
She has been a trailblazer along the way, not only as the first woman to run Harvard Law School but also as the first woman to serve as solicitor general. Her inexperience as a judge makes her a rarity in modern times, but until the 1970s many Supreme Court justices came from outside the judiciary, including senators, governors, cabinet secretaries and even a former president.
If the Senate confirms Ms. Kagan, who is Jewish, the Supreme Court for the first time will have no Protestant members. In that case, the court would be composed of six justices who are Catholic and three who are Jewish.
Like her former boss, Justice Marshall, who was the last solicitor general to go directly to the Supreme Court, Ms. Kagan may be forced to recuse herself during her early time on the bench because of her participation in a number of cases coming before the justices. Tom Goldstein, publisher of ScotusBlog, a Web site that follows the court, estimated that she would have to sit out on 13 to 15 matters. Mr. Whelan argued that it would be significantly more than that
E.U. Details $957 Billion Rescue Package BRUSSELS — European leaders, pressured by sliding markets and doubts over their ability to act decisively, agreed on Monday to provide a huge rescue package of nearly $1 trillion in a sweeping effort to combat the debt crisis that has engulfed Europe and threatened markets around the world.
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Olli Rehn, left, the European commissioner for economic affairs, and Elena Salgado, the Spanish finance minister.
In an extraordinary session that lasted into the early morning hours, finance ministers from the European Union agreed on a deal that would provide $560
billion in new loans and $76 billion under an existing lending program. Elena Salgado, the Spanish finance minister, who announced the deal, also said the International Monetary Fund was prepared to give up to $321 billion separately. Officials are hoping the size of the program — a total of $957 billion — will signal
a “shock and awe” commitment that will be viewed in the same vein as the $700 billion package the United States government provided to help its own ailing financial institutions in 2008. The package represented an audacious step for a union that had been criticized for acting tentatively, and without consensus, in the face of a mounting crisis.
Underscoring the urgency of the situation, President Obama spoke to the German
chancellor, Angela Merkel, and the French president, Nicolas Sarkozy, on Sunday
about the need for decisive action to restore investor confidence. And in a sign of the spreading anxiety, the United States Federal Reserve, along with the
European Central Bank and the central banks of Canada, Britain and Switzerland, announced the re-establishment of instruments known as swap lines through January 2011. The swaps are intended to help ease pressure on the euro, whose
value against the dollar has fallen as fearful investors have bought up dollars.
Stock markets in the Asia-Pacific region rose early on Monday. The leading stock indexes in Japan and South Korea were both up about 1.3 percent soon after the deal was confirmed, recouping some of the losses they had suffered last week. The markets in Singapore and mainland China also opened higher, with the market gauges there up 0.5 percent soon after the open.
New political complications in two of Europe’s most important countries added to the challenge. In Germany, voter anger at the effort to save Greece cost Ms.
Merkel an important regional election Sunday, undermining her leadership, and in Britain, the government remained in a state of suspended animation because of the inconclusive Parliamentary elections last week. [Pages A4 and A8.] The package comes at a time of mounting financial unease. Riots in Greece, ever-tightening terms of credit and the unexplained free fall in the American