One pundit after another along with critics from the Left and Right query why President Barack Obama did not choose (1) someone with judicial experience (37% of Supreme Court Justices had none and many others had a nominal amount), (2) a Protestant (with Elena Kagan’s confirmation there will be six Catholics and three Jews on the Court), (3) someone not from the Northeast (three Justices will be from New York City alone and there are none from the southern, south-central, mid-western, southwestern, or western sections of the country), or (4) a non-Ivy League nominee (there are many great schools not named Harvard, Princeton or Yale [Disclosure: Kagan was in her first two years at Princeton while I was on the University’s Board of Trustees].
Certainly adding a third woman to the Court for the first time is historic and represents a degree of diversity not previously seen but this impresses few. And many ignore the reality that Kagan’s own background, while similar in many respects to her soon-to-be colleagues, differs significantly from the current Court.
The President’s decision may have had to do more with his own legacy than with litmus tests or diversity goals. Nominating Kagan at the age of 50 allow Obama to influence the Court for three decades after he leaves office. In fact, all future Presidents are likely to follow the model established by President George W. Bush and will ignore older prospects with stellar resumes and extraordinary achievements due to their age.
What most likely drove Obama’s decision, however, was his desire to be successful during his tenure as President. In Kagan, he saw three advantages other prospects may have lacked.
First, Kagan has an established record of working with people who have incompatible viewpoints and opinions. She is someone who can bridge conflict and find solutions which satisfy a majority. This could be a key skill given the Court’s current divisions.
Second, Kagan is known to establish positive relationships with those who normally disagree with her. This ability could come into play during critical decisions and, on occasion, allow her to help shape new majorities on a case-by-case basis. Her collegiality should not be underestimated within the cloistered walls of the Court.
Third, and perhaps most importantly, Obama already has had the opportunity to watch Kagan fight for his Administration in her capacity as Solicitor General. Kagan gives him someone on the Court who understands and sympathizes with his agenda. He also has someone who comprehends the legal bases for that agenda and who has the skill to effectively communicate the relevant perspectives and arguments to the entire Court.
Hence, Elena Kagan represents an immediate opportunity for Obama to make his case inside the Court. His focus is on how to make his Administration a success. His selection of Elena Kagan helps promote his agenda. For any thoughtful President, those goals are far more important than satisfying racial, religious, educational, or geographic criteria.