Predicted ‘confirmable’ pick Elena Kagan ‘under fire on Goldman, minorities’
President Barack Obama could name his pick for a new Supreme Court justice “at any moment,” the White House said Friday, as speculation pointed to an announcement early next week.
Obama, who will be making his second nomination to the court this time to replace retiring veteran liberal Justice John Paul Stevens, has worked his way through a short-list, interviewing candidates, officials said.
Speculation has mounted over favored candidates as Obama deliberates, with a political showdown expected over the Senate confirmation process expected with Republicans.
The announcement “could come at any moment,” White House spokesman Robert Gibbs told reporters, but added he did not know if Obama had made a final decision on a nominee, or stopped interviewing possible picks.
US Solicitor General Elena Kagan is seen as the likely choice, The Politico news website said, adding the announcement would come on Monday.
“The pick isn’t official, but top White House aides will be shocked if it’s otherwise,” Politico’s Mike Allen writes. “Kagan’s relative youth (50) is a huge asset for the lifetime post. And President Obama considers her to be a persuasive, fearless advocate who would serve as an intellectual counterweight to Chief Justice Roberts and Justice Scalia, and could lure swing Justice Kennedy into some coalitions.”
She’s a favorite in part because she’s so confirmable, with many allies on the right whom she made while broadening the ideological diversity of Harvard Law School. And she’s taken a couple of fairly hard blows from the left today, the first the report in USA Today that she was a paid adviser to corporate enemy number one, Goldman Sachs, at a time when the White House is trying to cast its court pick as a chance to steer the court toward favoring plaintiffs over corporations.
Four minority law professors, meanwhile, complain in Salon that the diversity in her hiring didn’t extend beyond ideology: She hired, they write, “largely white men.”
These aren’t issues likely to trigger a Republican filibuster. They’re aimed to tilt the balance away from her at a decisive moment.
At Salon, Professors Guy-Uriel Charles at Duke Law School, Anupam Chander at the University of California-Davis Davis School of Law, Luis Fuentes-Rohwer at Indiana University’s School of Law, and Angela Onwuachi-Willig at the University of Iowa College of Law argue,
To begin, and most notably, the White House does not dispute our basic facts. When Kagan was dean of Harvard Law School, four-out-of-every five hires to its faculty were white men. She did not hire a single African American, Latino, or Native American tenured or tenure track academic law professor. She hired 25 men, all of whom were white, and seven women, six of whom were white and one Asian American. Just 3 percent of her hires were non-white — a statistic that should raise eyebrows in the 21st Century.
These are the facts that the White House does not try to defend because these facts are indefensible. For those who think that more women and minorities qualified to serve on the Harvard Law faculty were simply nonexistent, one need only look at HarvardÃ¢â‚¬â„¢s primary rival–Yale Law School. There Dean Harold Koh led the law school during almost the same period (Dean Koh, from 2004 to 2009, and Dean Kagan, from 2003 to 2009). Dean Koh hired far fewer faculty members–just ten–but he still managed to hire nearly as many women (5 of 10 at 50 percent), and just as many minorities (1 of 10 at 10 percent) as Dean Kagan.
Yet another comparison seems appropriate: A knowledgeable source tells us that Seventh Circuit Judge Diane Wood has had a splendid history of hiring women and minorities as law clerks.
The White HouseÃ¢â‚¬â„¢s primary response — like the magician performing a trick–is to point our attention elsewhere. The White House says the hiring numbers are misleading because they do not reflect the number of offers that Dean Kagan made to women and scholars of color. But this seems a bit hard to believe. Do women and people of color find a tenured or tenure-track professorship at Harvard Law School less attractive than white men? Do they really prefer to teach at less prestigious schools? Or if they only prefer not to teach at Harvard because of perceived hostilities to women and people of color, why is it that Kagan could somehow overcome these perceptions when it came to conservatives, but not women and people of color? After all, part of the praise for Kagan is that she made Harvard Law School welcoming again for conservativesÃ¢â‚¬â€in this case, conservative white men.
Kagan, who currently argues administration cases before the Supreme Court, was passed over by Obama last year for his first Supreme Court nomination.
Other possible contenders include Chicago Judge Diane Wood, who reportedly had a private interview with Obama on Tuesday; Merrick Garland, a Washington federal judge and Harvard Law school graduate; and federal appeals Judge Sidney Thomas, who serves on the San Francisco appeals court.
In another sign a decision may be coming soon, the president held meetings in the Oval Office on Wednesday with two senior Republican members of the Senate Judiciary Committee, which has to confirm his pick.
Last year, Obama made history by appointing the first Hispanic justice — and only the third woman ever — Sonia Sotomayor, and some observers wonder whether he will make a similar splash this time.
A president can put a stamp on American life for years after leaving office with the lifetime appointment of a Supreme Court justice.
Stevens, 90, joined the bench amid the traumatic fallout of the Watergate scandal in the 1970s, and will step down after 34 years, with bitter partisanship once again tearing at the fabric of American politics.
Yet his departure, announced last month, is unlikely to change the current court’s conservative leaning.
(with RAW STORY reporting)