As Fourth at Supreme Court, Kagan Goes Gender Lite

By Sharon Johnson

WeNews senior correspondent

Thursday, July 1, 2010

The three women who came before Elena Kagan on the Supreme Court carried a bright torch for women's rights. In this news analysis, Sharon Johnson sees Kagan as more of a mainstream power broker, with no gender strings attached.

Page 2 of 2

The National Bar Association, a Washington-based organization of over 44,000 predominantly African American lawyers, judges and professors, said it would have preferred if Obama had nominated Ann Claire Williams, the first African American woman to serve on a U.S. Court of Appeals.

Kagan is the first nominee in 38 years to have no judicial experience. Moreover, Kagan had never presented a case in any court until Obama appointed her solicitor general in 2009.

When he introduced her to the nation, Obama called Kagan "my friend" and "a consensus builder." Kagan had worked with Obama at the University of Chicago Law School and had served on a committee that tried to recruit him for the full-time faculty.

Kagan has close ties to Obama's inner circle at the White House, including Rahm Emanuel, the White House chief of staff, and Larry Summers, director of the National Economic Council.

No Comment on Summers Scandal

As president of Harvard University, Summers appointed Kagan dean of the law school in 2003. Unlike other members of the faculty, Kagan had no comment when Summers was forced to resign in 2006 after suggesting women were underrepresented in tenured positions in science and engineering at the top universities and research institutions because of a "different availability of aptitude at the high end."

At her confirmation hearing for solicitor general, Kagan said she didn't believe there was a constitutional right to same-sex marriage.

Leonard Gross, professor of law at the Southern Illinois School of Law, based in Carbondale, Ill., and co-author of the 1998 "Supreme Court Appointments: Judge Bork and the Polarization of Senate Confirmation," said Kagan has a good chance to win confirmation as the 112th justice as long as hearings are completed this summer.

If the hearings drag on longer than that, interest groups opposed to Kagan might make her nomination an issue in the mid-term elections this fall, says Gross.

To avoid a filibuster, Kagan must receive 60 votes. Last year, 54 Democrats and seven Republicans voted to confirm Kagan as solicitor general. However, the Democrats are expected to lose seats in November.

"That could be bad for Kagan, because these groups could help elect senators who would vote against her," Gross said.

A CNN/Opinion Research Corporation survey in June found that 44 percent of Americans wanted the Senate to confirm Kagan, down 10 points since May when her nomination was announced.

Thirty-nine percent opposed the confirmation, up three points. Seventeen percent said they were undecided, up 11 points.

CNN said opinion on Kagan has changed the most among women and Democrats. Initially, these groups supported the nomination because Kagan is a woman and Obama tapped her, but now they are less sure.

Sharon Johnson is a New York freelance writer.