Elena Kagan— President Obama’s choice for replacing the retiring Justice John Paul Stevens—may not be as controversial a candidate as some previous Supreme Court nominees. But the current Solicitor General should still expect some tough questions when she comes before the Senate Judicial Committee, including maybe a few pertaining to military recruiting on college campuses.
In announcing the nomination earlier today, Obama described Kagan, 50, as someone “respected and admired not just for her intellect and record of achievement, but also for her temperament, her openness to a broad array of viewpoints, her habit—to borrow a phrase from Justice [John Paul] Stevens—of understanding before disagreeing, her fair-mindedness and skill as a consensus builder.”
Critics, however, are expected to point to Kagan’s lack of judicial experience as a major concern.
Not much is known about Kagan’s positions on issues in the realm of employment law. But it’s quite likely committee members will bring up her decision as dean of the Harvard Law School to bar military recruiters from using its offices. In an e-mail to students and faculty, she called the military’s “Don’t ask, don’t tell” policy “discriminatory” and a “profound wrong.” But in the face of losing federal funding because of the school’s violation of the Solomon Amendment—which allows the government to withhold money from universities that bar military recruiters—Kagan reversed her position on the ban.
No doubt proponents and opponents of her nomination will attempt to spin this incident to their own advantage. But while it’s not likely to make any difference in the eventual outcome—most expect the Kagan nomination to eventually be approved, unless something unforeseen happens—it does, at the very least, provide a hint into how she might approach some of the employment-discrimination issues that find their way to the High Court.