Obama has nominated Elena Kagan, dean of Harvard Law School, to become the 46th solicitor general. Is solicitor hearing a trial balloon?

With the revelation last week that Supreme Court Justice Ruth Bader Ginsburg is suffering from pancreatic cancer, the political stakes for Tuesday’s Senate Judiciary Committee hearing on the next solicitor general were raised dramatically.

President Barack Obama has nominated Elena Kagan, dean of Harvard Law School, to become the 46th solicitor general since the office was established in 1870 and the first woman to hold the post. As solicitor general, Kagan would represent the U.S. government before the Supreme Court.


While her confirmation is widely expected by both sides, Democrats and Republicans consider the fight over Kagan’s nomination to be a dry run for a future Supreme Court nomination battle.

Not only is Kagan, 48, on many short lists for a Supreme Court appointment; when the Judiciary Committee considers her nomination for solicitor general, it will preview many of the same legal and constitutional issues that the Obama administration must confront: detainee rights, interrogation practices, criminal law, voting rights, the reach of presidential power during wartime and the limits of executive privilege.

Four solicitors general have gone on to serve on the Supreme Court, and one — William Howard Taft — is the only person to serve as both president and Supreme Court justice.

Sen. Orrin G. Hatch (R-Utah) called Kagan “brilliant” and said she has been “a very good dean” at Harvard Law School for the past six years. Asked whether her confirmation hearing could be a preview for a future nomination to the high court, he said, “I think that’s probably accurate.”

“There’s no doubt in my mind that she would be high in their pecking order,” Hatch said. “But they’ve made such a fuss about the need to have judicial experience, and she’s had absolutely none. Has she had any experience arguing before the Supreme Court? Not that I know.”

Hatch’s comments on Kagan’s lack of judicial experience may seem ironic to Senate Democrats; as Judiciary Committee chairman, he declined to schedule a hearing on Kagan’s 1999 nomination to the U.S. Court of Appeals for the D.C. Circuit by former President Bill Clinton, thus killing the nomination.

“This has a lot of the same issues that you would see in a [Supreme Court] fight,” said a senior Democratic aide, speaking on the condition of anonymity. “There is definitely a chance that Kagan could be someone Obama nominates if he gets a chance. Her credentials easily qualify her to be in that mix.”

Kagan, a New York City native, graduated from Princeton University in 1981, then earned a master’s in philosophy from Oxford before attending Harvard Law School. After completing law school, Kagan clerked for the late Supreme Court Justice Thurgood Marshall, worked in the White House counsel’s office and served as a policy aide for Clinton prior to her unsuccessful nomination to the federal bench.

The principal attack on Kagan has come from her opposition to allowing military recruiters on college campuses. In 2003, she joined dozens of other legal scholars in supporting a challenge to the Solomon Amendment, a Clinton-era law named after the late Rep. Gerald Solomon (R-N.Y.), mandating that military recruiters be allowed on campus if that school accepts federal funds. The Supreme Court eventually ruled unanimously in favor of the law.

An editorial in The Washington Times claimed that Kagan’s nomination “smacks of special interest, aimed at protecting the Ivy League’s out-of-touch elitism at the expense of students, taxpayers and our military alike.”

And the National Review, a leading conservative magazine, questioned whether Kagan’s views on the Solomon Amendment placed her “far out of the judicial mainstream,” and further asked if she would support the “don’t ask, don’t tell” policy for gays in the military.

“Where she does get into some difficulty is some of her writings in the past, some of her statements in the past [that] have caused some real angst among some people,” Hatch said.

Yet Kagan has won plaudits from top legal experts in both parties, including eight of her predecessors as solicitor general. That list includes Kenneth Starr and Theodore Olson, both legal icons for the right wing.

The deans of 10 top law schools also have endorsed Kagan, as did Miguel Estrada, a Bush nominee for the D.C. appeals court whose nomination Democrats blocked in 2003.

Judiciary Committee Chairman Patrick Leahy (D-Vt.) said Republicans on his panel “should be shamefaced” for blocking Kagan’s nomination a decade ago.

But Leahy didn’t want to discuss the possibility of replacing Ginsburg or any other Supreme Court justice. Like other lawmakers from both parties, Leahy said he “prayed for Justice Ginsburg’s quick recovery.”

The Vermont Democrat also complained about Republican bashing of Eric Holder and David Ogden, Obama’s picks for attorney general and deputy attorney general, as well as Dawn Johnsen, the president’s choice to head up the Office of Legal Counsel within the Justice Department, and Thomas Perrelli, selected to be associate attorney general. Holder has been confirmed by the Senate, while Ogden, Perrelli and Johnsen have yet to be voted upon.

“I don’t even look at these as dry runs,” Leahy said. “You have Eric Holder, looking at the last attorney generals, by far the most qualified. These people are highly qualified. I don’t understand why the Republicans are trying to hold them up when they rushed through people far less qualified.” Leahy was referring to the Judiciary Committee’s approval of Bush nominees while the panel was under GOP control.