As the White House prepares to introduce its Supreme Court nominee tomorrow, NBC News reports that Obama has chosen Elena Kagan, the current solicitor general. Speculation had centered on Kagan since John Paul Stevens announced in April that he’d be leaving the Court next month, primarily because of Kagan’s clean legal record and personal ties to Obama as both a professor at the University of Chicago Law School and as dean of Harvard Law. She was also appointed by Obama last year to be the country’s top advocate in court, suggesting a clear vote of confidence in her experience.
There’s reason to believe Kagan will be confirmed, and quickly. In her hearings last February to become solicitor general, the questions were relative softballs from both sides, mostly because her past didn’t contain many smudges to magnify. Having never been a jurist, the usual process of dissecting old opinions didn’t happen last time, and won’t this time either. Nor are controversial comments from past speeches (i.e. a "wise Latina") likely to surface, as anything truly explosive probably would have been dug up by opponents during her last appointment to top government office.
Yet there will be two things working against Kagan. Supreme Court confirmation hearings are notorious for being relatively void of substance. Answers to senators’ questions are usually polite yet empty platitudes, explaining that it would be improper to state a judicial opinion on an issue that could come before the Court. But in 1995, Kagan lamented that very method. Recalling her position as a frustrated staffer for then-Senator Joe Biden, Kagan complained that high court nominees shouldn’t be allowed to “stonewall” the judiciary committee and should have to reveal their “broad judicial philosophy” and “views on particular constitutional issues.” If she goes through the same motions, any member of the committee—from either party—could be expected to call her on it.
One other obstacle could turn out to be Kagan’s prevalence of recusal. As solicitor general, she has either argued or submitted briefs in cases about dozens of issues. If any of those questions come up with her on the bench, many of which are inevitable, having already revealed her bias may force her to recuse herself in up to 30 percent of her cases during her first year—a number far higher than normal for freshmen justices. That could be both good and bad. Republicans might welcome having one less left-leaner on the bench on contentious issues. But Democrats, having said goodbye to their most reliable liberal, won’t like the idea of their rookie sitting frequently on the sidelines.
Republicans have an incentive to hold Kagan back as long as possible to show their base that her record has been thoroughly examined. But Sen. John Kyl, a senior Republican, said last month that a filibuster would be “unlikely” and only used in “an extraordinary circumstance.” That's because, in many ways, Kagan on the bench might not be such a bad thing for conservatives. Obama will undoubtedly claim victory when his choice gets confirmed, but the truth is, replacing the Court's staunchest liberal with someone more centrist by comparison actually swings the Court further to the right, not left. In other words, everyone might have a stake in seeing her seated.