With the announcement of Justice Stevens's retirement calls immediately went up that Obama should nominate someone outside the limited pool of sitting federal appellate judges. Since 1972, when Richard Nixon named William Rehnquist and Lewis Powell, every successful nominee since has been a circuit court judge with the exception of Sandra Day O'Connor, who came from a state court. The Supreme Court used to be populated with people who had extensive political experience—former senators like Hugo Black, governors like Charles Evans Hughes and Earl Warren, or attorneys general like Robert Jackson or Frank Murphy—people who understood the political nature of government and the effect that their decisions would have on the other branches of government. Some critics charge that the reliance of appellate court background has yielded benches that are ignorant and indifferent to the balance that should be maintained between the states and the federal government, and between the judiciary and the other branches of government.
Obama chose a person without prior judicial experience, a fact that Republican members of the Senate jumped on as a reason to vote against her—mainly because they could not come up with anything else in her background that provided a reason why she should be denied confirmation. Elena Kagen was born in New York City in 1960, the daughter of a school teacher and an attorney. She attended Princeton, Oxford, and the Harvard Law School, and clerked for Thurgood Marshall at the Supreme Court. She began her career as a professor at the University of Chicago Law School, where she met Barack Obama, and from there went to Washington where she served as an associate White House counsel and later as policy advisor under President William Clinton. Clinton nominated her to the Court of Appeals for the D.C. Circuit, but Republicans in the Senate tied up her nomination, and in 1999 Kagan went to the Harvard Law School. She became its first woman dean in 2003. She took over a fractious school, and people on all ideological fronts commended her for her fairness. She lured some conservative scholars, such as Cass Sunstein, to Cambridge, giving the law school a more balanced approach.
From the viewpoint of conservative senators, her most heinous action at Harvard was upholding a policy she had inherited banning military recruiters from campus so long as the armed forces discriminated against gays. As she explained, Harvard had to follow the policy of the Association of American Law School that prohibited recruiting by firms or other organizations that discriminated. After the Supreme Court held that law schools could not ban military recruiters she opened the school, but continued to be a critic of the "don't ask, don't tell" policy.
Kagen's stint as Solicitor General was not long enough to establish her as one of the great litigators in that office or just as a competent lawyer, but there is no question that she is smart, politically savvy, and able to hold her own in an atmosphere of super-bright people. Liberals are not sure where she stands on many issues, but they hope that she will be able to take on the reining conservative intellect on the Court, Antonin Scalia. Her nomination hearings went fairly smoothly, and while several Republicans tried to depict her as a judicial activist, Democratic senators jumped on them pointing out that the most activist members of the current Court are all Republican nominees. On August 5, 2010 the Senate confirmed her nomination by a vote of 63-37. The vote was along party lines, with only one Democrat voting against her and five Republicans backing her.
In the near future Kagan by herself will not alter the balance on the high court, and expectations are that she will vote pretty much as did her predecessor, aligning with Breyer, Ginsburg, and Sotomayor. But she is only fifty years old, and Obama hopes that she will serve for many years, and during that time her influence and impact on the law will grow.