In the face of Justice John Paul Stevens’ impending retirement, the nomination of former Harvard Law School Dean Elena Kagan for the open seat on the Supreme Court has become a likely prospect.
If she is selected as President Barack Obama’s nominee, Kagan—who currently serves as the nation’s first female Solicitor General—will face a number of challenges on the road toward confirmation, including her lack of experience as a judge, her religious background, and her stance on the military.
Kagan’s experience in academia rather than in the courtroom may be a significant obstacle in her confirmation, according to Law School Professor Mark V. Tushnet ’67.
Historically, a significant number of Supreme Court Justices had not been judges before their confirmations, but the last 30 years have seen a sharp trend of nominating current appellate court judges.
Kagan’s religious affiliation may also impede her nomination. Justice Stevens is the Court’s only Protestant, and if Kagan, who is Jewish, were appointed, the court would be composed of six Catholics and three Jews.
According to Tushnet, that issue “has not quite surfaced yet,” but there have been some indications that it could factor into Obama’s decision.
In Kagan’s Senate confirmation hearings for Solicitor General, she was questioned about banning military recruiters from the Law School’s campus in opposition to the “Don’t Ask, Don’t Tell” policy.
Tushnet said he believes that the policy is “on its way out” and will be used as a “talking point” for Republicans, but would not be an issue that would bar Kagan from the Court.
Tushnet and Law School Professor Frank I. Michelman said that they were unclear if these concerns were legitimate indications of Kagan’s inability to serve as a Justice.
“Republicans are unified against anything the administration wants to do,” Tushnet said.
Kagan’s confirmation hearings for Solicitor General were viewed as especially rigorous—and may have foreshadowed a potential nomination.
“It is possible to speculate that [the hearing] was anticipatory of a future Supreme Court nomination,” Michelman said.
Current Law School Dean Martha L. Minow has also been raised as a possible candidate, according to Bloomberg. But Tushnet said he thinks it is “unlikely” that Minow would be chosen because Kagan has had “some bathing in high-level practice” that would make her a more likely contender.
Michelman said that the skills Kagan acquired both as dean and as Solicitor General may translate well in the Court.
Although the Law School deanship is a management job, Kagan was required to have political and interpersonal skills relevant to work in the Court, according to Tushnet.
Tushnet clerked for Thurgood Marshall, the last Justice who was a former Solicitor General, and said that Marshall’s previous work exposed him to a range of legal issues.
“I am sure the same will be true with Kagan,” Tushnet said.
“[Being Solicitor General] demands both an ability to take advice from and respect the concerns of all the constituencies in government you represent, but then making up your own mind about what is the best thing to do,” former Solicitor General and Law School Professor Charles Fried wrote in an e-mail.
—Staff writer Zoe A. Y. Weinberg can be reached at firstname.lastname@example.org.