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Obama nominates Kagan ’81 to Supreme Court

If confirmed, Kagan would be the third consecutive Princeton graduate to join the Supreme Court, following the confirmations of Associate Justice Sonia Sotomayor ’76 in 2009 and Associate Justice Samuel Alito ’72 in 2006. Kagan is the first-ever female solicitor general and was the first woman to serve as dean of Harvard Law School. If confirmed, Kagan would be the fourth female justice in the history of the court and the third sitting female justice.

“I could not be more pleased at the nomination of Elena Kagan,” President Shirley Tilghman said. “I think she’s a marvelous candidate. I think she’ll be a wonderful justice, and needless to say, we at Princeton are extremely proud.”

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Steven Bernstein ’81, who served as chairman of The Daily Princetonian and appointed Kagan to her position as editorial chairman at the ‘Prince,’ said he was not surprised by the nomination. “I actually expected it for many years,” he said. “Just waiting for the right president. But it’s still wonderful nonetheless.”

At a press conference on Monday, Obama praised Kagan’s intellectual prowess and cooperative personality. “Elena is widely regarded as one of the nation’s foremost legal minds,” he said. “[She] is respected and admired not just for her intellect and record of achievement, but also for her temperament, her openness to a broad array of viewpoints, her habit — to borrow a phrase from Justice Stevens — ‘of understanding before disagreeing,’ her fair-mindedness and skill as a consensus-builder.”  

During his time at the ‘Prince’ between 1980 and 1981, Bernstein worked closely with Kagan. He said that many of the qualities she exhibited at the time would serve her well as a justice, describing her as “very even-tempered, able to hear all sides of an issue, very thoughtful and deliberate and careful in her reasoning [and] able to marshal facts to her views.”

Tilghman also said that, based on her personal knowledge of Kagan, she was fully equipped to handle the challenges of being a Supreme Court justice. “I have met her on a number of occasions, and I’ve heard her speak,” Tilghman noted. “Everything I have seen, both in public and in personal conversation, suggests to me that she is exactly the sort of person you want on the Supreme Court — very thoughtful, and cautious and deliberate.”

Despite her significant legal experience, Kagan has never been a judge, a fact widely considered to be one of her biggest liabilities going into the nomination process. Obama nominated her as solicitor general last January, and she was confirmed by a Senate vote of 61-31 in March. In addition to her roles as solicitor general and Harvard Law School dean, Kagan served as an associate White House counsel under President Bill Clinton and a tenured law professor at the University of Chicago.

Following Obama’s announcement of the nomination, Kagan noted the importance of her past experience and its influence on her understanding of the court.

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“During the last year, as I have served as solicitor general, my longstanding appreciation for the Supreme Court’s role in our constitutional democracy has become ever deeper and richer,” she said.

Despite her successes, Kagan hasn’t forgotten the challenges she has faced, Bernstein noted. Born to a Jewish family in New York City, Kagan comes from a “New York immigrant experience,” he said, similar to those that shaped Sotomayor and even Alito, and one that would make her aware of the plight of marginalized groups. Sotomayor was born to Puerto Rican parents, and Alito comes from an Italian-American background.

“I think it’s very important to her to work toward a society that is inclusive of people of all backgrounds, all ethnicities, sexualities, etc., where everyone is able to … excel,” Bernstein said of Kagan. As he remembers her, she was very “concerned about the welfare of others, the welfare of the less fortunate,” he added.

Bernstein’s remembrances were confirmed by Kagan’s remarks on Monday, when she spoke with marked optimism about the role the Supreme Court could play in extending the American Dream. “The court is an extraordinary institution in the work it does,” she said, “and in the work it can do for the American people by advancing the tenets of our Constitution, by upholding the rule of law and by enabling all Americans — regardless of their background or their beliefs — to get a fair hearing and an equal chance at justice.”  

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In addition to Kagan’s qualifications, her nomination is also a pragmatic one. Stevens announced in April his intention to retire when the court’s session ends this summer, and Obama noted at the beginning of the nomination process that he would look for a nominee who could be quickly and easily confirmed to join the court at the start of its new term in October. Kagan’s previous success in her Senate confirmation hearings for solicitor general may help streamline her confirmation.

If Kagan is confirmed, the court would be without a Protestant justice for the first time in history, in a country where Protestants make up the largest religious denomination. And at 50, Kagan could shape the court’s landscape for decades.

But Kagan’s reserve about her own political views, and her comparative shortage of legal writings, have also led to speculation about where she would fall on the political spectrum. Kagan has worked for several liberal politicians, and a recent investigation of her undergraduate years by the ‘Prince’ examined her early liberal beliefs, expressed in her own writings and in the unsigned editorials published during her tenure as editorial chairman.

One of these editorials, titled “Keeping Reagan out of the White House,” urged voters to support incumbent President Jimmy Carter, though he wasn’t the ideal liberal, instead of third-party candidates in an effort to prevent Republican candidate Ronald Reagan from gaining power.

Despite Carter’s “self-righteous and vitriolic campaign,” the editorial said, Reagan would be a dangerous choice because his “foreign policies reflect his view that the United States must serve as world policeman, a strong and overwhelming global presence. He refuses to recognize that if America was ever intended to play this role — and we state this without malice — it was only in the movies.”

The editorial called Reagan’s economic policies “fanciful,” predicting that they “would ultimately prove disastrous,” and that Reagan would abandon the natural and urban environment in favor of setting “industry free from stifling government rules.” It also criticized Reagan for supporting an amendment making abortion illegal in cases where the mother’s life was not at stake.

Yet, though Bernstein said that he was unaware of any political affiliations Kagan might hold, he noted she was “much more centrist in her own thinking” than some of the people she has worked for. “Some of her writings on executive powers and the like have raised eyebrows among the left,” he said, noting that Kagan has attracted concern from both sides of the aisle. “She’s in a good place,” he added.

But the general view of her confirmation prospects are positive. Bernstein noted that despite the political opposition she faces, Kagan’s experience will carry her through the confirmation process. “I absolutely expect Elena to be confirmed,” he said. “I’m sure the Republicans will try to bring up … past statements and writings, and her thesis will come up for discussion, but I totally expect her to be confirmed without a problem.”

Kagan earned a bachelor’s degree in history summa cum laude from the University, where she won the prestigious Daniel M. Sachs award to fund two years of graduate study at Oxford University. She earned a master’s in philosophy from Oxford in 1983, and her law degree magna cum laude from Harvard Law School in 1986.

Click here for further coverage of the Kagan nomination and articles from Kagan's tenure at The Daily Princetonian.