Video: Kagan's critics pore over thin paper trail

  1. Transcript of: Kagan's critics pore over thin paper trail

    BRIAN WILLIAMS, anchor: She was the first woman to serve as dean of Harvard law school and the first woman solicitor general , the government 's lawyer at the Supreme Court . If President Obama has his way, she'll be just the fourth woman in US history to take a seat on the Supreme Court . She is Elena Kagan . She's from New York , and while she's never been a judge, she has that in common with a host of justices on the court throughout history. Today the president praised her legal mind. Now we wait and see how tough a fight this will be. We begin our coverage here tonight with our justice correspondent Pete Williams at the Supreme Court . Pete , good evening.

    PETE WILLIAMS reporting: Brian, the president today called her a woman of many firsts, but one thing she's never been is a judge. That lack of experience is already becoming an issue, even though roughly one-third of all Supreme Court justices were never judges when they got here, either. Mr. Obama called Elena Kagan , the second Supreme Court nominee of his presidency, someone who can bring people together.

    President BARACK OBAMA: Elena 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.

    P. WILLIAMS: She's the child of a New York housing rights lawyer father and a public school teacher mother.

    Ms. ELENA KAGAN: My parents' lives and their memory remind me every day of the impact public service can have. And I pray every day that I live up to the example they set.

    P. WILLIAMS: Judging from her high school yearbook, she had early aspirations to wield a gavel. Classmates say she was a standout in a school of overachievers.

    Ms. JUSTENE ADAMEC (Former Classmate): She would speak up and talk to the teachers as if she was much older. She knew far more history and far more of the news events that the rest of us had not started paying attention to.

    P. WILLIAMS: After Princeton and Harvard law school , she clerked for Supreme Court Justice Thurgood Marshall , who called her "Shortie." For most of the 1990s she taught law at the University of Chicago , where she met a young Barack Obama , a part-time faculty member. She served President Clinton as a lawyer and policy adviser and later became the first woman dean of Harvard law . She diversified the faculty, hiring prominent conservatives. But her tenure included controversy; she enforced a long-standing anti-discrimination policy there, blocking military recruiters from the law school because of the Pentagon 's ban on gays in the military . Last year President Obama appointed her solicitor general , responsible for arguing the government 's position before the Supreme Court .

    Ms. KAGAN: Mr. Chief Justice, and may it please the court , I have three very quick points to make about the government 's position.

    P. WILLIAMS: Some Republicans say her lack of experience as a judge clouds her nomination .

    Senator MITCH McCONNELL (Minority Leader): The lifetime position on the Supreme Court does not lend itself to on-the-job training.

    P. WILLIAMS: But some Senate Democrats consider her background a plus.

    Senator PATRICK LEAHY (Democrat, Senate Judiciary Committee Chair): I worry when you're in a judicial monastery that you don't have the kind of real world experience you might have otherwise. So I -- and she brings a breadth of experience .

    P. WILLIAMS: And a Supreme Court expert says her lack of experience as a judge leaves a scant paper trail .

    Mr. TOM GOLDSTEIN (Supreme Court Expert): No track record when it comes to abortion, affirmative action , religion, a lot of the hot button social issues that could give rise to a huge nomination fight.

    P. WILLIAMS: A few other points about her: accomplished poker player, opera lover, and, given that nickname that Justice Marshall gave to her, she's five foot 3", Brian.

updated 5/10/2010 5:53:48 PM ET 2010-05-10T21:53:48

President Barack Obama nominated Solicitor General Elena Kagan to the Supreme Court on Monday, declaring the former Harvard Law School dean "one of the nation's foremost legal minds." She would be the court's youngest justice and give it three female members for the first time.

The nomination to replace liberal retiring Justice John Paul Stevens set the stage for a potentially bruising summertime confirmation battle before the court begins its next session, though mathematically Democrats should be able to prevail in the end.

At 50, Kagan is relatively young for the lifetime post and could help shape the high court's decisions for decades. If confirmed by the Senate, she would become only the fourth female justice in history.

Obama cited what he called Kagan's "openness to a broad array of viewpoints" and her "fair mindedness."

Standing beside the president in the East Room of the White House, Kagan said she was "honored and humbled by this nomination."

Republicans are expected to criticize her for attempting to bar military recruiters from the Harvard Law campus while she was dean. That issue was used against her by critics during her confirmation hearing last year for her current post.

On the topic of abortion, The Associated Press reported on Monday afternoon that Kagan, acting as a White House adviser in 1997, urged then-President Bill Clinton to support a ban on late-term procedures.

Documents reviewed by AP show Kagan encouraging Clinton to support a compromise bill that would have banned all abortions of viable fetuses except when the health of the mother was at risk. The documents from Clinton's presidential library are among the first to surface in which Kagan discusses the thorny issue of abortion.

The proposal was a compromise by Democratic Sen. Tom Daschle. Clinton supported it, despite opposition from pro-abortion rights groups. The compromise failed and Clinton vetoed a stricter Republican ban.

Democratic officials said Kagan would begin making the rounds of senators' offices on Wednesday.

With control of 59 votes in the Senate, Democrats should be able to win confirmation. However, if all 41 Republicans vote together, they could delay a vote with a filibuster.

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Republicans have shown no signs in advance that they would try to prevent a vote on Kagan, but they are certain to grill her in confirmation hearings over her experience, her thin record of legal writings and her decisions at Harvard.

The senator who will preside over her confirmation hearing, Democrat Patrick Leahy of Vermont, said, "The Senate should confirm Ms. Kagan before" Labor Day.

"Our constituents deserve a civil and thoughtful debate on this nomination, followed by an up-or-down vote," said the chairman of the Senate Judiciary Committee.

The Republican Senate leader, Mitch McConnell of Kentucky, said his party would make sure there was a "thorough process, not a rush to judgment" on the nomination.

"Judges must not be a rubber stamp for any administration. Judges must not walk into court with a preconceived idea of who should win," he said, adding that Republicans would have a vigorous debate on that principle.

Alabama Sen. Jeff Sessions, top Republican on the Judiciary Committee that will conduct the confirmation hearing, said the president's timetable for a vote by early August "should be doable." He said Kagan's lack of experience as a judge was a weakness but wouldn't disqualify her.

Sen. James M. Inhofe, R-Okla., said flatly that he would oppose Kagan. He said she had shown "seeming contempt" for the Senate confirmation process and a "lack of impartiality when it comes to those who disagree with her position."

Obama introduced Kagan as "my friend." Kagan and Obama both taught at the University of Chicago Law School in the early 1990s.

"Elena is widely regarded as one of the nation's foremost legal minds. She's an acclaimed legal scholar with a rich understanding of constitutional law. She is a former White House aide, with a life- long commitment to public service and a firm grasp of the nexus and boundaries between our three branches of government," Obama said.

Obama began with high praise for the retiring Stevens, a leader of the court's liberals, calling him "a giant in the law," impartial and having respect for legal precedence.

Kagan "embodies the same excellence, independence and passion for the law," Obama said. Video: Kagan would bring ‘intellectual energy’ to court

He noted that neither Kagan's mother nor father "lived to see this day, but I think her mother would relish this moment. I think she would relish, as I do, the prospect of three women taking their seat on the nation's highest court for the first time in history ... a court that would be more inclusive, more representative, more reflective of us as a people than ever before."

White House press secretary Robert Gibbs said Kagan would continue to work on cases as solicitor general but would not take on any new ones. He said the administration recognizes that, if confirmed, she will have to recuse herself from cases before the high court on which she has worked. Gibbs said that would probably amount to about a dozen in her first year.

Seven Republicans voted for her confirmation last year as solicitor general.

One of them, Orrin Hatch of Utah, a member of the Judiciary Committee, issued a statement saying his decision this time "will be based on evidence, not blind faith. Her previous confirmation and my support for her in that position do not by themselves establish either her qualifications for the Supreme Court or my obligation to support her."

Kagan would become the only justice who had no prior experience as a judge. The other justices all served previously as federal appeals court judges. She was named to a federal appeals court by President Bill Clinton, but the Senate never brought that nomination to a vote.

That means Kagan has a smaller paper trail than other recent nominees since there are no prior decisions to scrutinize.

But conservatives were already mounting an attack, one they laid the groundwork for when she was mentioned last year as being on Obama's short list for the Supreme Court post last time around.

Obama's White House team was launching its own broad campaign-style outreach to Capitol Hill and the media. That effort is designed to shape the national image of Kagan, an unknown figure to much of America.

Her selection came after nearly a monthlong process of consideration. Obama always had Kagan on his short list but still considered a broader group of candidates, interviewing four.

The president informed Kagan that she would a Supreme Court nominee on Sunday night. He then called the three federal judges he did not choose for the position, Diane Wood, Merrick Garland and Sidney Thomas. He also called the current Harvard Law School dean, Martha Minow.

Monday morning before the announcement, Obama called Senate leaders of both parties.

Video: Pushback?

Kagan is known as sharp and politically savvy and has enjoyed a blazing legal career. She was the first female dean of Harvard Law School, first woman to serve as the top Supreme Court lawyer for any administration.

Kagan has clerked for Thurgood Marshall, worked for Bill Clinton and earned a stellar reputation as a student, teacher and manager of the elite academic world. Yet she would be the first justice without judicial experience in almost 40 years. The last two were William H. Rehnquist and Lewis F. Powell Jr., both of whom joined the court in 1972.

Supreme Court justices wield enormous power over the daily life of Americans. Any one of them can cast the deciding vote on matters of life and death, individual freedoms and government power. Presidents serve four-year terms; justices have tenure for life.

Democrats went 15 years without a Supreme Court appointment until Obama chose federal appellate judge Sonia Sotomayor last year to succeed retiring Justice David Souter. Just 16 months in office, Obama has a second opportunity with Kagan.

Kagan, who is unmarried, was born in New York City. She holds a bachelor's degree from Princeton, a master's degree from Oxford and a law degree from Harvard.

Before she served as a clerk for Justice Marshall, she clerked for federal Appeals Court Judge Abner Mikva, who later became an important political mentor to Obama in Chicago.

In her current job, Kagan represents the U.S. government and defends acts of Congress before the Supreme Court and decides when to appeal lower court rulings.

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