The Australian

By David Weisbrot

US President Barack Obama on Tuesday made the widely anticipated announcement that Elena Kagan is his nominee for the position on the US Supreme Court opened up by the recent retirement of the long-serving Justice John Paul Stevens.

The others reportedly interviewed for the position by President Obama or Vice-President Joe Biden were federal judges Merrick Garland and Dianne Wood, both of whom were frequently mentioned in the media as potential nominees, as well as a relative dark horse, Montana-based federal court judge Sidney Thomas.

Kagan was also interviewed for last year's vacancy on the Supreme Court, which was ultimately filled by Sonia Sotomayor.

The President’s nominee clearly fits what may now be seen as the Obama mould for such appointments. She has a brilliant academic record achieved at elite institutions, with degrees from Princeton, Oxford and Harvard, and a stint as a law professor at the University of Chicago.

Kagan's personal narrative includes a number of historic firsts. She was the first woman to become Dean of Harvard Law School, and the first woman to be appointed Solicitor-General of the US.

She is identifiably a Democrat and previously served in the Clinton administration, but has a record of centrist politics, carefully building coalitions and consensus, rather than using the numbers to ram home progressive policies.

At 50, she will become the youngest member of the Supreme Court, and is poised to have a long and influential career on the bench.

Mr Obama pointed to these factors in announcing the nomination, particularly emphasising that she was one of Harvard's most beloved and successful leaders, building a reputation for openness to other viewpoints and skill in working with others to build consensus.

The President came to office pledging to reduce the bitter partisanship and factional gridlock plaguing modern American politics, and although his efforts in this respect have been largely unsuccessful in terms of healthcare, the GFC bailout and financial regulation reform, and his two Supreme Court nominations follow his preference for finding the middle ground.

If Mr Obama were minded to nominate a powerful liberal equivalent of Justice Antonin Scalia, as many of the President's supporters were hoping, this would have been the time to try it on. First, in replacing Justice Stevens, who is part of the court's liberal bloc of four justices, the current nominee will not alter the current balance of power, held by the conservative bloc of four justices led by Justice Scalia and Chief Justice John Roberts, with the usual (but not guaranteed) support of Justice Anthony Kennedy.

Secondly, the Democrats currently hold a very solid 59-41 majority in the Senate. However, the polls indicate that this majority will likely be reduced in the November elections, creating a rockier path for any nominee whose philosophy or record is seen to be significantly at odds with that of the Republicans.

It is thought that Mr Obama may be keeping Merrick Garland in reserve for this eventuality. A former federal prosecutor who was involved in the Unabomber and Oklahoma City bombing cases, he is well liked and supported by both sides of US politics.

There are some interesting sub-plots to the Kagan nomination. If confirmed, she would be the first appointee to the US Supreme Court without prior judicial experience since Nixon-appointees William Rehnquist and Lewis Powell in 1972.

Kagan would become the third woman justice serving on the current court, joining Justices Sotomayor and Ruth Bader Ginsburg, and only the fourth woman in history. (Sandra Day O'Connor, the first, retired in 2006 after 25 years on the court.)

In replacing its lone Protestant member, Kagan, who is Jewish, would join a court comprised of six Catholics and three Jews - and without a Protestant for the first time in American history.

In a country with strong religious convictions and strong identity politics, this development has been widely noted, but has attracted surprisingly little controversy.

She would also be the fourth justice on the current court who grew up in New York City (joining Scalia, Bader Ginsburg and Sotomayor).

Although Kagan has a record as a consensus builder and as being slightly less liberal than the person she is replacing, Kagan may nevertheless expect a torrid time as she works her way through the confirmation process.

Political satirist Andy Borowitz recently joked that senate Republicans had developed a new iPhone killer app, opposing whomever Obama nominated on the basis that “fill in the blank” would lead the court down a dangerous path towards judicial activism.

The attack is likely to come on two fronts. First, Kagan's lack of judicial experience. This was a relatively common phenomenon for much of US history, with 40 US Supreme Court justices appointed directly from private practice, government or academia.

These have included some famous and lauded jurists, including John Jay, John Marshall (the father of the Supreme Court), Louis Brandeis, Felix Frankfurter, William O. Douglas and Earl Warren.

Further, in her role as Solicitor-General, Kagan routinely argues cases of national importance before the Supreme Court, with the US government as her client, so she is clearly familiar with the territory.

Kagan's lack of judicial experience is also a double-edged sword for Republicans, since she has not left a record of judicial decisions that can be picked over and queried.

The other line of attack will be that Kagan is anti-military, stemming from the brief ban she imposed on military recruiters at Harvard, on the basis that the “don't ask, don't tell” policy against openly gay and lesbian soldiers serving in the military breached the university's anti-discrimination code.

As Solicitor-General, however, Kagan has taken positions favouring the military and intelligence communities, countering any alleged bias or antipathy.

We can expect that Kagan will be well prepared for the process, and not only because she is known to be quick to master a brief.

Fifteen years ago, Kagan wrote a law review article about the judicial nomination and confirmation process, and expressly considered whether prior judicial service should be a pre-requisite for appointment.

I am sure she is now relieved to have concluded otherwise, writing that it should be sufficient for a nominee to demonstrate the requisite intelligence and legal ability through academic scholarship, the practice of law or governmental service of some other kind.

Just a year ago, Kagan was confirmed by the US Senate for her current position by a 61-31 vote. Although the stakes are now higher and the scrutiny more intense, my feeling is that unless some startling new information emerges, Kagan will take her seat as the 112th Justice of the US Supreme Court. David Weisbrot is professor of legal policy at the United States Studies Centre, University of Sydney, and professor of law at Macquarie University.