A ‘consensus builder’

Tuesday, May 11, 2010 | 2:01 a.m.

One of the most important and lasting decisions a president can make is a nomination to the federal bench, and none is more important than a lifetime appointment to the U.S. Supreme Court. On Monday, President Barack Obama made his second nomination to the high court in just his second year in office, nominating Elena Kagan, the U.S. solicitor general, to the Supreme Court (the first being last year’s successful nomination of Sonia Sotomayor to the Supreme Court).

The president not only referred to Kagan as having “one of the nation’s foremost legal minds” but that she also is a “consensus builder” and has an “openness to a broad array of viewpoints.” Those latter qualities the president mentioned, whether it’s working well with other strong-willed and opinionated justices or having an open mind in applying the Constitution to some of the most vexing legal issues facing the country, are crucial to possess.

“She believes, as I do, that exposure to a broad array of perspectives is the foundation not just for a sound legal education but of a successful life in the law,” the president said at the White House in announcing her nomination. “That understanding of the law, not as an intellectual exercise or words on a page, but as it affects the lives of ordinary people, has animated every step of Elena’s career ...”

From all indications, Obama has made a wise choice. If the Senate confirms her, she will be the third woman on this court and its youngest at 50. We were particularly glad to see the president selecting someone with a first-rate legal mind who isn’t necessarily a judge. In recent times, presidents haven’t looked far beyond what has been dubbed the “judicial monastery.”

It has been several decades since someone has been nominated to the Supreme Court without prior experience as a judge. But, before then, it wasn’t uncommon to nominate someone to the nation’s highest court who hadn’t made being a judge their livelihood. For example, President Dwight Eisenhower nominated Earl Warren, the former governor of California, to be chief justice of the Supreme Court. So there is a precedent for Obama selecting an individual who isn’t already wearing black robes.

It’s certainly not as if Kagan doesn’t know a thing or two about the law, as was evidenced by a New York Times profile of her career published online Monday.

Kagan, a graduate of Harvard Law School, was a clerk for Supreme Court Justice Thurgood Marshall. She spent two years practicing at a New York law firm, and then joined the faculty of the prestigious University of Chicago Law School (where she met Obama, who then was a part-time instructor). From there she worked for the White House counsel’s office in the Clinton White House, where she later became the top deputy to the director of domestic policy. Ultimately, in 2003, Kagan was named dean of the Harvard Law School. For the past year, she has been U.S. solicitor general, the federal government’s top advocate, occasionally appearing before the Supreme Court. So not only has she been at the top rungs in terms of academic legal experience, but Kagan also has had real-world experience in how government works at its highest levels.

The lack of a judicial paper trail probably will frustrate Kagan’s opponents who might seek to derail her nomination, but we hope Republicans in the Senate don’t try to needlessly block her appointment. We expect the Senate Judiciary Committee to ask tough questions of Kagan during the confirmation process, but at the same time the inquiries should be fair and relevant to what her role would be as a justice of the Supreme Court. For that matter, we are optimistic that the Senate’s confirmation process will be expeditious enough that, should she be confirmed, Kagan will be able to join the court in time for the opening of its new term this fall.