Obama To Nominate Kagan For Supreme Court

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Elena Kagan addresses the forum 'Striking the Balance: Fair and Independent Courts in a New Era' at Georgetown University Law Center May 20, 2009 in Washington, DC.

The president has chosen the solicitor general and former Harvard Law School dean for the position. Elena Kagan, 50, would be the first justice without judicial experience in almost 40 years. If she is confirmed, the court will have three women serving for the first time in its history. NPR will have special coverage of President Obama's choice of Elena Kagan to be Supreme Court Justice at 10 a.m. EDT today.

President Obama plans to announce Monday that he is nominating Solicitor General Elena Kagan to become the nation's 112th justice on the U.S. Supreme Court.

Kagan, 50, would be the youngest member of the current court if she is confirmed and the only justice who has not served previously as a judge. Her presence would result in three female justices on the nine-member court for the first time in its history.

Obama is expected to announce Kagan's nomination to replace retiring Justice John Paul Stevens at 10 a.m. in the East Room of the White House, officials said.

As solicitor general, Kagan is the Obama administration's top Supreme Court lawyer -- the first woman to fill that position. Prior to that, she was the first woman to serve as dean of Harvard Law School, where she subsequently won widespread praise for ending long-standing faculty wars.

Martha L. Minow, who succeeded Kagan at Harvard, described her as "a brilliant teacher, important scholar and astonishingly effective dean."

"Her decency, her skill at making almost anything better, her intellectual and interpersonal talents, and her integrity make this an outstanding nomination," Minow told NPR in an e-mail.

Kagan served in a number of top positions in President Clinton's White House until 1999, when Clinton nominated her to the federal appeals court in Washington. However, the Republican-controlled Senate never took up her nomination.

Kagan 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.

If confirmed, she also would become the third Jewish justice on the current court, which has six Catholics. With Stevens' exit, there would be no Protestants.

Kagan's fate will be up to a Senate dominated by Democrats, who with 59 votes have more than enough to confirm her, though they are one shy of being able to halt any Republican stalling effort. Barring any surprises, Kagan is likely to emerge as a justice.

Although Republicans did not immediately signal that they would try to prevent a vote on Kagan, they are certain to grill her in confirmation hearings over her experience, her thin record of legal writings and her objections to the military's policy about gays.

As Harvard Law School dean, Kagan openly railed against the military's "don't ask, don't tell" policy regarding gay service members. She called it discriminatory and barred military recruiters over the matter until the move threatened to cost the university federal money.

Kagan later joined a challenge to a law allowing colleges to be stripped of federal money if they kept out the military recruiters. But the Supreme Court upheld that law unanimously.

When she was confirmed as solicitor general in 2009, only seven Republicans backed her.

For the second straight summer, the nation can expect an intense Supreme Court confirmation debate. 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, under different circumstances.

Obama's decision last year centered much on the compelling narrative of Sotomayor, who grew up in a housing project and overcame hardship to become the first Hispanic Supreme Court justice.

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.

She served as a Supreme Court clerk for one of her legal heroes, Justice Thurgood Marshall. Before that, she clerked for federal appeals court Judge Abner Mikva, who later became an important political mentor to Obama in Chicago.

Kagan and Obama both taught at the University of Chicago Law School in the early 1990s.

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.

The White House is expected to frame Kagan's lack of service as a judge in upbeat terms, underscoring that there are many qualified routes to the top of the judiciary.

She faces the high task of following John Paul Stevens, who leaves a legacy that includes the preservation of abortion rights, protection of consumer rights, and limits on the death penalty and executive power. He used his seniority and his smarts to form majority votes.

NPR's Nina Totenberg contributed to this report, which contains material from The Associated Press. Copyright 2010 National Public Radio. To see more, visit http://www.npr.org/.

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