United States Solicitor General Elena Kagan ’81 is rumored to be among the top three candidates to fill Supreme Court Associate Justice John Paul Stevens’s seat on the bench, following his announcement on Friday that he will retire when the court’s term ends this summer.
Kagan, along with federal judges Diane Wood and Merrick Garland, is considered one of the top three candidates for President Barack Obama’s nomination, according to both The New York Times and The Washington Post.
“The president is probably looking for somebody who will share his constitutional vision, who is an outstanding lawyer and, ideally, who will add diversity to the court,” said Provost Christopher Eisgruber ’83, who once clerked for Stevens and has written extensively about the court. “He is also looking for someone who will perform well in the confirmation process. One of the reasons that Solicitor General Kagan is a frontrunner is that she succeeds on all those scores.”
If confirmed, Kagan would be the third consecutive Princetonian to join the Supreme Court, following the recent confirmation of Sonia Sotomayor ’76 last August and President George W. Bush’s 2005 nomination of Samuel Alito ’72.
Like the other potential nominees, Kagan is considered to be more moderate than Stevens, who is one of the Supreme Court’s leading liberal voices. Media outlets have consistently asserted that Kagan is among the top contenders, with The Daily News calling Kagan “one of the nation’s top legal eagles.”
“By all accounts, she’s a very able politician, with a small ‘p,’ ” Eisgruber explained, noting that Kagan’s own amiability is another advantage. “By which I mean she gets along well with people, and that will certainly help her.”
Kagan has made few public political statements during her career, though she opposed on-campus military recruiters during her time as Harvard Law School’s first female dean in response to the military’s “don’t ask, don’t tell” policy.
Eisgruber said that this pattern of silence is likely to strengthen Kagan’s candidacy.
“I think any candidate whom the president appoints is likely to be a liberal,” he explained. “It helps candidates if they don’t have an especially long or controversial paper trail. So I think that’s an advantage for Solicitor General Kagan.”
Jeffrey Toobin, a CNN legal analyst and a top Supreme Court expert, said in an interview with Fresh Dialogues last week that Kagan was his top choice for Stevens’s successor, noting that she is “very much an Obama-type person — moderate Democrat, consensus builder.”
Despite Kagan’s impressive credentials, Eisgruber noted it is ultimately still too early in the nomination process to make any definitive predictions about the outcome.
“All the speculation puts her as one of the three frontrunners, and I think that’s accurate,” he explained. “On the other hand, I’d really underscore the word ‘speculation.’ She’s a strong candidate, [but] the White House has said it’s looking at around 10 people, and I think it’s hard to tell what the president is thinking.”
Obama said on Friday that he was looking forward to a quick nomination and confirmation process, the Associated Press reported.
This is not the first time that Kagan has been considered as a Supreme Court nominee. Last spring, she was one of four potential candidates whom Obama interviewed for the seat vacated following Associate Justice David Souter’s retirement, along with Sotomayor, Wood and Secretary of Homeland Security Janet Napolitano. A Napolitano nomination is considered unlikely, after she received negative publicity for her response to the attempted terrorist attack on Christmas Day in 2009.
Eisgruber said that Sotomayor’s successful candidacy was strengthened by her embodiment of two characteristics Obama has said he values: a strong intellectual background and a diverse life experience. Sotomayor, who graduated from Princeton summa cum laude with an A.B. in history and earned a law degree from Yale Law School, was raised in the Bronx by a single mother who was from Puerto Rico.
“With Sonia Sotomayor, he got both,” Eisgruber said of the president’s two criteria. “It may not be so easy to get both in the same package this time around.”
But from the perspective of a member of the University community, Kagan’s Ivy League background is a strong plus, Eisgruber added.
“Obviously, as a Princetonian, it’s terrific that we’ve had two Princeton appointments in a row,” he said. “It’s been a long time [since that’s happened].”
Born in New York City, Kagan earned an A.B. summa cum laude in history from the University, where she was the editorial chairman of The Daily Princetonian. Kagan went on to earn a Bachelor of Civil Law from Worcester College at Oxford University and a law degree from Harvard Law School in 1986, where she was supervising editor of the Harvard Law Review. She became a law professor at the University of Chicago in 1995.
Kagan later served as associate White House counsel during the Clinton Administration and was nominated by President Bill Clinton to the U.S. Court of Appeals for the District of Columbia.
Kagan was named dean of Harvard Law School in 2003. She was nominated to her current position of solicitor general by Obama last January.
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