President Barack Obama nominated Solicitor General Elena Kagan to the United States Supreme Court on Monday, declaring her “one of the nation’s foremost legal minds.”
If confirmed by the Senate, the 50-year-old native New Yorker would replace liberal retiring Justice John Paul Stevens, and become the third woman on the current high court (and only the fourth in U.S. history), and the first justice in nearly four decades with no judicial experience. Kagan, who was blocked from becoming a federal court judge by Senate Republicans in 1999, paid homage to the court during her nomination ceremony, while President Obama stood at her side.
“I have felt blessed to represent the United States before the Supreme Court, to walk into the highest court in this country, when it is deciding its most important cases, cases that have an important impact on so many people’s lives,” she said. “And to represent the United States there, is the most thrilling and the most humbling task a lawyer can perform.”
President Obama cited what he called Kagan’s “openness to a broad array of viewpoints” and her “fair-mindedness.” “Her passion for the law is anything but academic,” he said as he made his announcement in the ceremonial East Room of the White House. “She believes, as I do, that exposure to a wide array of perspectives is the foundation not just for a sound legal education but a successful life in the law.”
Kagan’s biggest asset in upcoming confirmation hearings may be her lack of an extensive public record, which would provide few openings for Republican lawmakers to attack, according to published reports. And President Obama hopes her personal skills are good enough to build consensus with the court’s conservative majority–and to win Senate confirmation.
However, Republicans have already been quick to criticize Kagan as an out-of-touch elitist, someone who has “spent her entire professional career in Harvard Square, Hyde Park and the D.C. Beltway,” as Senator John Cornyn, a Texas Republican, put it.
Politicos have also pegged Kagan as a moderate liberal, who will not put much counterweight on the judicial balance of power that leans rightward.
In response to these attacks, both Kagan and the White House have made much of her time as a clerk for her self-described mentor, Thurgood Marshall. But in the 22 years since Kagan left Marshall’s chambers, she has not developed much of a record to suggest she will reverse the racial inequities that so embittered her mentor.
This reality has not gone unnoticed by civil rights groups, who have expressed their concern about Kagan’s questionable hiring record while she was dean at Harvard Law School.
In fact, some Black activists are disheartened that no African American woman has reached President Obama’s short list in two searches. The selection of Kagan served to irritate them further, as they described her tenure at Harvard as one lacking in racial inclusion.
“She has done a lot to make Harvard more accessible to people of color, although some have complained that those she brought in were primarily non-U.S. born people of color, rather than African Americans,” said Darryll Jones, associate Dean for Research and Faculty Development and Professor of Law at Florida A&M University School of Law. “I don’t want to say that she’s never shown an interest in diversity. But I’m not sure she’s sensitive enough to the issues of African-Americans,” he added.
As with many elite institutions, Harvard Law has been pressed over the years to diversify the ranks of its faculty. While Kagan led the school from 2003 to 2009, 29 faculty members were hired–28 were White, and one was Asian American.
The White House has rejected the notion of Kagan’s racial insensitivity, releasing a set of talking points on the subject to civil rights lawyers and reporters, according to
The list stresses that Kagan did not have the final say in hiring at Harvard, where such decisions are made by committee. The memo also argues that Kagan consciously made other appointments and promotions that improved diversity, including moving two minority professors to tenured positions. Three of the 12 clinical professors hired were minorities.
Harvard Law professor Charles Ogletree, who worked with Kagan while she was dean, went further, assuring the Washington Post that the raw hiring numbers at the law school offer a misrepresentation of her full commitment to diversity. “She reached quite broad and deep in trying to ensure that diverse candidates were in the pool,” he said. “There has never been a doubt in my mind about her commitment to diversity.”