Obama nominates Kagan, potential third active woman justice to the Supreme Court

 According to the New York Times, Obama is set to announce Solicitor General Elana Kagan as his nomination for the Supreme Court to replace retiring Justice John Paul Stevens.  If confirmed, the first woman dean of Harvard Law School and first woman Solicitor General would become the third woman justice active on the current court.  Additionally, Kagan would be the youngest member on the court, which would allow a continued representation of women on the court, and an unprecedented 1/3 of the court until Justice Ruth Bader Ginsburg retires.

Interestingly, Obama seems to have taken into consideration what both Ginsburg and Justice Sandra Day O'Connor called for in the diversification of the Court.  O'Connor, while refusing to acknowledge a difference in male and female perspectives relevant to the gender parity on the court, did call for a diversification of experience on the court.  Specifically, O'Connor noted "I like judges. But we don't need them all on the Court.  And we need people of different backgrounds." Kagan is currently Solicitor General of the United States, was formerly the Dean of Harvard Law School, was Associate White House Counsel under President Clinton, and while she has been nominated for judicial posts in the past, has never served as a judge.  Having never served on the judiciary is a form of diversity that O'Connor found missing on the Supreme Court, and Kagan could clearly fill that void, though in her capacity as Solicitor General she's been arguing before the Supreme Court since her confirmation last year.  In her call for diversification, Ginsburg was willing to bluntly request gender parity when she argued that women experience the world differently from men and should be invited in greater numbers to employ those perspectives in interpreting and applying our laws.

Another form of diversity Kagan could add to the court is her outspoken support of LGBT rights.  During her time at Harvard Law School, but before she was Dean, Kagan declared military recruiters were in violation of the school's anti discrimination policy because of the application of "Don't ask, don't tell" to their recruiting procedure.  When recruiters entered the campus despite the school's anti discrimination policy, she sent an email to the faculty and student body decrying the discrimination as "a profound wrong - a moral injustice of the first order."  Apparently, she was in line with many other faculty and deans, but in direct contradiction to the eventual unanimous Supreme Court ruling regarding such bans on military recruitment procedures on campus.  Last year during the Supreme Court nomination process, Kagan was outed as being a lesbian, and the White House issued a press release denying the rumor. While her sexual orientation should not be an issue, here's a summary with links to background articles in case it becomes an issue anyway.

While the Don't Ask, Don't Tell condemnation might prove to be a sticking point for Kagan in the confirmation process, she was approved just last year for the position of Solicitor General defending the United States before the Supreme Court, with that same history behind her.  A more compelling hurdle comes from Paul Campos at the Daily Beast. who points out why Kagan might fail to garner enough support at the confirmation hearings for similar reasons Harriet Miers failed in 2005: too close a relationship with the nominating president, and not enough stated opinions on matters she will be directly responsible for deciding as a Supreme Court justice.

This post on the Equal Visibility Everywhere blog outlines why it's time for the United States to increase gender parity in its highest offices - something Obama seems to be doing on the Federal judiciary.  Time for the hearings to begin to see if Obama can pull it off, or if a failed hearing will lead him to resort to a second choice of Merrick Garland, the male DC Court of Appeals judge who is generally regarded as a well-balanced candidate who has a history of public service and is favored by conservative senators.  As it stands, however, it seems that President Obama is attempting to secure his legacy through establishing gender parity on the Supreme Court by nominating candidates with strong ties to women's rights, and it's been difficult to peg Garland down on abortion, which seems to weigh against him in Obama's eyes.

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