As the first female Dean of the Harvard Law School and the first woman to serve as U.S. Solicitor General, Elena Kagan has a track record of setting precedents. If confirmed, Ms. Kagan will become the youngest justice on the court, the third woman, and the third Jewish justice. Her confirmation would mark the first time in U.S. history that there would not be a Protestant on the high court. There are now six Catholics sitting on the court.
Opposition to Ms. Kagan has not as of yet focused on any of the demographic factors, nor on her sexual orientation, but instead on her lack of judicial experience. Her lack of judicial experience is a quite specious argument as two of the last four Chief Justices of the Supreme Court had no judicial experience either. Both Earl Warren (Chief Justice from October 5, 1953–June 23, 1969) and William Rehnquist (Chief Justice from September 26, 1986–September 3, 2005) had never served as judges prior to being appointed to the Supreme Court. Both Warren and Rehnquist shared, with Kagan, a political background. Warren was elected three times as Governor of California, and served as Attorney General of California. Rehnquist was for years active in Arizona Republican Party politics and served in President Nixon’s Justice Department working for Attorney General John Mitchell. Kagan worked in the Clinton White House and is currently serving as President Obama’s Solicitor General.
The lack of a judicial record and “paper trail” will present Republican opponents to Ms. Kagan with a limited set of writings to scrutinize and question her about. It should not, however, limit their questions for the nominee. As President Obama correctly noted at the time of the Harriet Miers nomination by President Bush, “…we have yet to know her views on many of the critical constitutional issues facing our country today. In the coming weeks, we’ll need as much information and forthright testimony … so that the U.S. Senate can make an educated and informed decision on her nomination to the Supreme Court.”
Liberal Senators will also want to question Ms. Kagan carefully. As Solicitor General, Kagan argued before the Supreme Court in favor of expanding battlefield law, including providing for indefinite detention without a trial, outside of traditional battlefields. In the end, it will be up to the Republicans in the U.S. Senate to decide how vigorously to oppose the Kagan nomination. She would be replacing retiring justice John Paul Stevens — often thought to be the most liberal member of the current court — so a Kagan confirmation is unlikely to change the ideological make-up of the next court.