Why Obama Is Nominating Elena Kagan to the Supreme Court

Obama’s decision to nominate Elena Kagan to the Supreme Court to replace John Paul Stevens, who has sat on the bench for 35 years, will not change the political balance on the Court. The conservatives, headed by Chief Justice John Roberts, will always have a slight lead (5 votes to 4), but for the first time in 112 years, there will be three women on the Court. With the choice of Elena Kagan, for the first time as well, the Supreme Court will not include any Protestants (the judges are Catholics and Jews), and all, without exception, come from Harvard or Yale.

A novelty, Kagan is a lawyer, but she has never sat on a court. In earlier times, presidents nominated ambassadors, former governors, but for the past 50 years, it’s been judges whom the White House has sent to the High Court. Until her nomination by Barack, she held the job of solicitor general, that is, the attorney who represents the White House before the Supreme Court. This graduate of Princeton, Harvard and Oxford — one can’t be more East Coast establishment — held the prestigious job of dean of Harvard Law School, a school from which she also graduated 44th in her class. Elena Kagan still must be confirmed by the Senate. This should not pose too many problems, precisely because she has not been a judge. She cannot be criticized for too liberal or too conservative decisions, which leaves less room for Republicans to reject her candidacy.

Obama nominated Elena Kagan for her great capacity as a jurist. But he also chose her because at 50 years old, she could sit on the bench for a long time, and thus influence the Court’s decisions for several decades. All that remains for Obama is to have an opportunity, during his term of office, to nominate a single judge to replace one of the members of the conservative clan in order to change the balance of the Court, and consequently, the political thought that governs its increasingly conservative decisions for many years. The best example is the decision of the High Court, in a ruling called Citizens United, to agree that the political commercials financed by corporations are protected by the Constitution as freedom of speech. As a result, limits cannot be imposed on the total sum that corporations invest in these campaigns. Obama criticized this decision during his State of the Union address, in the presence of some Supreme Court justices.

The president is worried that a High Court ultra-restrictive in its interpretation of the Constitution — holding to the letter rather than the spirit of the founding fathers — could not only challenge part of his health insurance reform, but also new rules that Congress might soon pass to fight climate deregulation.

Barack Obama has another candidate up his sleeve in case he will need to nominate another judge to the Supreme Court, Diane Wood. These last weeks, certain Republican leaders had made it known to the president that they hoped he would choose this judge from Chicago. In not doing so, but in keeping her in mind, he is assured of a relatively easy confirmation in case, as seems probable, the Democrats lose some seats next November.