WASHINGTON – US President Barack Obama selected Elena Kagan for the Supreme Court on Monday, a nominee who would boost the court’s number of current Jewish justices to an unprecedented three if confirmed.
Kagan, 50, who is the first female US solicitor-general and was the first female dean of Harvard Law School before that, would also raise the number of female justices to three, another historic number, in taking over for the retiring John Paul Stevens, 90.
Noting her fierce intellect and legal achievements in announcing the nomination, Obama also cited Kagan’s immigrant roots and the values her parents instilled as key to her success and life path.
“Understanding of law, not as an intellectual exercise or words on a page but as it affects the lives of ordinary people, has animated every step of Elena’s career,” he said, pointing out that Kagan chose public service over a lucrative private practice.
“Given Elena’s upbringing, it’s a choice that probably came naturally,” Obama said, referring to her being raised by a public school teacher and a tenant lawyer who were the children of immigrants and both the first in their families to go to college.
He then quoted Kagan’s comments during her confirmation hearing for solicitor-general: “Both my parents wanted me to succeed in my chosen profession. But more than that, both drilled into me the importance of service, character and integrity.”
Abner Mikva, who hired Kagan as his clerk when he was an appellate judge in the 1980s and then later when he was legal counsel for the Clinton White House, said that her closeness to the immigrant experience influenced her approach to the law.
“I think she did identify with people who are friendless and powerless, and that the law is there to protect them, not impose further burdens on them,” he said, describing qualities that Obama had previously said were key perspectives for any nominee he chose. “When you talk about the law, you’re talking about individuals, and I think that’s part of the heritage of being close to the immigrant generation.”
Mikva, whom Kagan praised in her remarks upon being nominated Monday, also told The Jerusalem Post how her sense of Jewishness connected to her work.
“Her yiddishkeit, as I call it, informs her views on social justice and compassion and understanding what law is about,” he said. “We the Jews invented the law, and it’s only fitting that someone of Jewish heritage would fall in love with the law and make it a career.”
Harvard Law School professor Alan Dershowitz told the Post that that heritage has been one she has worn proudly, as “she never tries to hide her Jewish background.”
Dershowitz, who worked with her for the dozen or so years that she headed the law school, said he frequently saw her when he went to Conservative services held at the Harvard Hillel, calling her someone who clearly “knows how to daven” and reads Hebrew.
Although he said that “she doesn’t see herself as a Jewish law professor or a Jewish justice,” at the same time she “clearly identified positively as a Jew.”
Though he noted that he had never held a lengthy conversation with her about Israel, he said that “I think she would be generally supportive” of the Jewish state and described her as “actively involved in moderate, liberal Judaism.”
He added, “With a name like Kagan, she’s probably a kohen too.”
Dershowitz lauded Kagan for working to create a more inclusive, less politically polarized climate at the law school and for bringing both sides toward each other in the center.
He pointed out that this ability would be helpful in the Supreme Court, and it seems to have been one of the key reasons she was selected.
Obama himself emphasized her record as “a consensus-builder,” particularly at Harvard, and her belief that “exposure to a broad array of perspectives is the foundation not just for a sound legal education, but of a successful life in the law.”
This could be particularly important on a sharply divided court – Kagan
will replace a long-time liberal justice – where Justice Anthony
Kennedy often is a swing vote. Legal observers suggested Obama wanted
someone who could work with Kennedy and help sway him as some of
Obama’s key legislative initiatives – such as health care – wend their
way toward America’s top court.
As the solicitor-general, until now responsible for arguing the
administration’s perspective before the court, Kagan would have to
recuse herself from the cases she’s worked on. While that has already
formed as a line of attack for some Republicans, as has her lack of
experience as a judge, her academic and government background means
that she doesn’t have a lengthy, controversial record of past decisions.
That is one reason political insiders expect that her nomination will
go through without a full-court press of opposition by the GOP. The
White House hopes the Senate will take up the nomination early enough
to have it wrapped up by the August recess, so Kagan can take the bench
for the fall session.