THE US Senate’s confirmation of solicitor general Elena Kagan as the 112th justice to the supreme court makes her the fourth woman to sit on the court.
On a vote of 63 to 37, Ms Kagan, who will succeed retired justice John Paul Stevens, yesterday became the second member President Barack Obama has placed on the high court. One year ago, Sonia Sotomayor won confirmation as the court’s first Latina.
Some Democrats have said they hope that the lifetime appointment of Ms Kagan, a consensus-building liberal, will nudge the court slightly to the left.
Her confirmation is considered unlikely to immediately shift the court’s ideology, however. Although she is expected to fit comfortably within the liberal wing of the court, she does not seem to be as liberal as Justice Stevens was during his final years on the bench.
Along with her relative youth, Ms Kagan (50) brings a curriculum vitae unlike any of those with whom she will serve.
She will be the first appointee since 1972 to join the court with no judicial experience. Other justices have corporate law backgrounds or a long record of court arguments.
Ms Kagan worked briefly for a law firm and argued her first case before an appellate court 11 months ago. It happened to be before the supreme court, the first of six cases she argued as the nation’s first female solicitor general.
Five Senate Republicans supported her with one Democrat, Nebraska’s Ben Nelson, opposed. Chief Justice John G Roberts jnr will swear her in at the court today.
Democrats hailed Ms Kagan’s legal acumen and suggested that her widely acknowledged charm might appeal to the critical swing vote of Justice Anthony Kennedy on the nine-member court.
Republicans criticised her lack of judicial experience and questioned whether she would adhere to “the rule of law.” Senate minority leader Mitch McConnell called her “someone who has worked tirelessly to advance a political agenda”.
Ms Kagan’s confirmation continues a period of remarkable change for the court; she is the fourth new justice in the past five years. The former Harvard Law School dean is replacing a 90-year-old legend who served longer than almost any other justice.
The experience Ms Kagan brings to the court is from the political world of Washington. During her tenure as a policy adviser in the Clinton White House, she was deeply involved in the making of policy, not its legal interpretation, and was in the thick of administration efforts to craft legislative compromise, sway public opinion and count votes in Congress.
Because of her work as solicitor general, she has already identified about a dozen cases from which she will recuse herself, including the first case on the court’s opening day of the term, October 4th, regarding laws related to mandatory minimum sentencing for convicted criminals.
After yesterday’s Senate vote, several Democrats on the judiciary committee expressed hope that she would show deference to laws that the administration and Congress agree benefit the country.
“The court has eaten the lunch of the Congress and very few people even recognise it,” said Pennsylvania’s Arlen Specter
Ms Kagan’s lack of judicial experience probably will hamper her at first – she has, after all, never written an opinion. But she has also been pointing toward this day since posing in judicial robes in a high school yearbook photo.
As solicitor general – often referred to as the “10th justice” – she has had the chance to become well acquainted with her new colleagues.
She appears to have an easy rapport with her ideological opposite, Justice Antonin Scalia. She held a lavish dinner for him at Harvard, where he attended law school, and he responded to Republican criticism about her lack of judicial experience by defending her background.
More intriguing will be her relationship with Justice Roberts. The two youngest members of the court are likely to serve together for decades and already have a complicated past.
In the late 1990s, President Bill Clinton selected Ms Kagan for a seat on the US Court of Appeals for the DC circuit, but the Republican-controlled Senate never brought her nomination for a vote. The job was filled by Justice Roberts. Ms Kagan went on to become the dean of Harvard Law School.
Justice Roberts is tough on many of the advocates who argue before the court, but he has been particularly blunt with Ms Kagan. He labelled one of her arguments “startling”. Some court observers think they have a natural rivalry, others say their encounters receive more attention because she has been mentioned as a candidate for the court ever since she became solicitor general.
Her supporters are less focused on her relationship with the chief justice and more on how she bonds with Justice Kennedy, who will continue to sit in the middle of a court with four solid conservatives and four firm liberals.
– ( Washington Postservice)