President Obama’s nomination of Solicitor General Elena Kagan to the Supreme Court assumes that she will have to step aside on numerous cases. But that concern that was trumped by what Obama called her “skill as a consensus builder.”
For Obama, installing Kagan on the high court would mean more than adding another like-minded constitutional scholar to the mix. Ideally, Kagan would bring outreach skills the more liberal members of the court have been lacking.
“She has a long record as a consensus builder and is the kind of person who can bridge the 5-4 splits that have become so routine on this court,” said Sen. Chuck Schumer, a New York Democrat and member of the Senate Judiciary Committee.
Kagan’s skill set appeals to Obama, who wants to expand on his first-year Supreme Court nomination of Justice Sonia Sotomayor.
While Sotomayor is a reliable liberal vote on the court and the first Latina to serve, she functions primarily as a counterpoint to the court’s conservatives. Obama perceives Kagan as a justice with a broader role on the court.
At the same time, Kagan’s service as solicitor general means she will be expected to recuse herself from matters on which she has already played a role as the government’s advocate.
Obama is facing crucial constitutional tests on key parts of his agenda. Lawsuits over the president’s domestic policy centerpiece, a new national health program, and his policy for handling terrorism suspects are expected to land at the court soon. Legal defeat on either would be a serious setback to the president’s agenda.
Kagan’s mentor and former boss, the late Justice Thurgood Marshall, also served as solicitor general before ascending to the high court, and recused himself in 57 percent of cases in his first year, according to a Newsweek analysis.
White House press secretary Robert Gibbs said Obama took the issue into consideration when he looked at Kagan for the nomination.
“The president had to make a decision similar to past presidents that have tapped solicitor generals to serve on the high court,” Gibbs said. “Next year, I think we anticipate recusals in about a dozen cases, and then maybe less than half of that in the year after that.”
Whether a high rate of first-year recusals reduces Kagan’s effectiveness in the short term as a vote for the Democrats’ interests was judged a short-sighted consideration, officials said.
At the same time, framing her appeal as a consensus builder is also part of a deliberate White House strategy to head off a heated, election-year confirmation fight.
By stressing the bipartisan support she received in her nomination to be solicitor general, the administration aims to neutralize or at best minimize Republican efforts to portray her as a liberal.
And promoting her record as an open-minded leader at Harvard Law School and elsewhere is designed to appeal to voters disgusted by partisan bickering in Washington.
In touting her abilities, Obama praised Kagan’s “temperament, her openness to a broad array of viewpoints, her habit … of understanding before disagreeing, her fair-mindedness and skill as a consensus builder.”
