When the Senate comfirmed Kagan's appointment as Solicitor General in March 2009 by a vote of 61 to 31, it was widely rumored that her name would come up again when a vacancy emerged in the Supreme Court. And so it did when the Obama administration was looking to replace Justice David Souter in June 2009 and so it has now when the administration appears to have settled on nominating Elena Kagan to replace Justice John Paul Stevens.
At her confirmation hearing for Solicitor General, Kagan drew criticism from the Left because of her view that battlefield law could apply to non-traditional battlefields, and therefore her support of unilateral executive authority. Kagan had argued that "'war' is the proper legal framework for analyzing all matters relating to Terrorism, and the Government can therefore indefinitely detain anyone captured on that 'battlefield' (i.e., anywhere in the world without geographical limits) who is accused (but not proven) to be an 'enemy combatant.'” Neo-conservatives, understandably, will be on board with this nomination. (Kagan's views on the unilateral executive are elaborated in “Presidential Administration”, 114 Harv. L. Rev. 2245, 2001.)
The push-back in the weeks to come will likely be as vociferous on the Left as on the Right. Kagan, after all, is being nominated to occupy the most liberal seat on the bench. This is the seat once occupied by Justice Brandeis and Douglas and now being occupied by Justice Stevens. The Left will be more intent on putting Kagan through a Progressive litmus test than Justice Sonia Sotormayor was especially because Kagan is a "stealth candidate." Before becoming Solicitor General, Kagan had never argued a case at trial, much less before the Supreme Court. She has no previous appellate experience so there is no documentary record and predictor of what her jurisprudential philosophy would be. Some Democrats are also queasy about the fact that Kagan, if confirmed, would have to recuse herself from all cases in which she had participated as Solicitor General, which means there would be one less liberal justice in an already conservative-dominated court in such scenarios.
But here is what Kagan has going for her. If confirmed, she would only be the fourth woman to take a seat on the nation's highest bench. At only 50, she would be around a long time. And while she is closer to the conservatives on the bench in her views on presidential war power, she is certainly not socially conservative, as exemplified by her strong stance against the Solomon Amendment, which required a university that received federal funding to cooperate with military recruiters on campus even when the university's equal employment policy conflicted with the military's ban on gays.
President Obama has strategically chosen not to radically alter the balance of Court opinion on neo-conservative issues like presidential war power to which the American public is still somewhat partial in our post 9/11 world, but to focus instead on the more winnable front of the culture wars where a new liberal justice could help initiate palatable inroads toward such issues like legalizing gay marriage. Put another way, Obama hopes to build a Democratic majority in the Court by conceding that the modal American voter stands to the right of the Democratic Party on foreign policy and to the left of the Republican Party on social and domestic issues. Known during her Deanship of Harvard Law School to be a shrewd negotiator and a consensus builder, and with views that would not alienate her from the conservative majority in the Court, Obama is craftily attempting to place a 4th liberal justice on the bench with the credibility and wherewithal to occasionally bring on board a 5th. Kagan would have to use her wits while Justice Stevens could rely on his seniority, but the Obama administration is banking on similar results.