Newswise — Stephen Wermiel, a Fellow in Law and Government at American University Washington College of Law, holds expertise in the U.S. Supreme Court, having covered the court for the Wall Street Journal from 1979 until 1991. During his 12-year tenure at the Journal, he covered and interpreted more than 1,300 Supreme Court decisions and analyzed trends on a broad array of legal issues.
Wermiel spoke about Kagan’s practical approach in her legal career to this point: “Elena Kagan will bring to the Supreme Court a critically important pragmatic ability to get along with people of all views and the skill of knowing how to get things done. This is important on a Court that remains closely divided on many important issues. Working inside the Clinton administration and within Harvard Law School, she has used these practical abilities effectively, and she will bring that experience to the Court. Those who criticize her lack of experience as a judge should remember that she has actually drafted Supreme Court opinions as a law clerk to Justice Thurgood Marshall, so she would arrive knowing how the institution works and having more hands on experience than may seem to be the case at first glance.”
Wermiel went on to describe a few “bumps” or barriers to her confirmation: “One bump may be a law review article she wrote about 15 years ago in which she suggested that a searching, demanding confirmation hearing should be the norm for Supreme Court justices. In that article she criticized the lack of rigor and faulted the lack of insightful information gained in confirmation hearings in which nominees are permitted to give only vague and noncommittal answers about their constitutional views. Republican senators certainly can be expected to make much use of this article. Kagan tried mildly to distance herself from those views when she was confirmed to be Solicitor General last year, but she may face more questioning along the lines she suggested when she returns to the Senate Judiciary Committee this summer.”
Professor Stephen Vladeck, a constitutional law and national security expert at American University Washington College of Law, can comment on the nomination of Solicitor General Elena Kagen to the Supreme Court and the upcoming confirmation hearings. “Kagan has basically been the front-runner since the last nomination, and it’s hardly surprising that President Obama settled on someone with such stellar academic and governmental credentials,” says Vladeck. “Given what we know about her (and the Justice she would replace), it seems unlikely that she would alter the Court’s ideological balance in any meaningful way. Then again, the same exact sentiment was expressed 35 years ago about John Paul Stevens, whose massive shoes she is now slated to fill.”
Addressing anticipated political battles, Vladeck states: “In nominating Solicitor General Kagan, President Obama seems to be shying away from the political fight that other names—including others rumored to be on the ‘short list’—might have raised. Whatever her opponents might say in attempting to rally behind in opposing her nomination, the bottom line is that Kagan is a safe choice, a reality that should placate moderates and independents, but also perhaps frustrate the President’s liberal base. This was an historic opportunity for President Obama. I just hope history doesn’t conclude that, in retrospect, it was a missed opportunity.”
Daniel Marcus, Fellow in Law and Government and former General Counsel of the 9-11 Commision was optimistic about the Kagan nomination: "It is hard to imagine a better-quaified nominee. Kagan is very smart and tough-minded, and has a wealth of good experience -- as a lawyer and policy-maker in the Clinton White House, as a successful Dean at one of the nation's premier law schools, and as Solicitor General. She has the potential to be a real intellectual force on the Supreme Court."
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