President Obama will officially announce Solicitor General Elana Kagan to be his next Supreme Court associate justice pick in a few minutes at 10 AM EDT, according to TPM. The Atlantic's Marc Ambinder previews the confirmation process:
The pro-forma criticism will come from the right; the more interesting response will be from the left -- whether Kagan is progressive enough, whether she endorses a variant of the unitary executive theory held by John Yoo and Dick Cheney, whether her scholarship is up to snuff, whether her views on campaign finance mirror those she was asked to argue for as SG....
Kagan is part of the club. She was a domestic policy adviser during the Clinton administration. She tried to get Obama to become a Harvard Law prof. She and he are brilliant, detached, and of like minds. She has ties to many in the administration. She seems to be a proponent of a strong, competitive constitutional system where Congress, the Courts and the Executive Branch compete transparently for power -- just like Obama. Critics of her interpretation of the laws of war ought to realize that it reflects that of her boss.
The more intense fire will come from the activist left, representatives of which have already voiced objections to Kagan's record of jurisprudence, her Cantabrigian clubbiness, her record on diversity, and the way in which she seems to have constructed her career to leave as little a paper trail as possible. Remember: all judicial battles are fought on the right's terrain. So Democratic judges always have to pledge fidelity to a legal formalism they don't really believe in. So long as the Democrats have the votes, Republicans will have to grudgingly accept this. The Democrats' framing cause was assisted by Ed Whelan, an influential commentator on the right, who intemperately compared Kagan to a prostitute of sorts, borrowing an old Bernard Shaw quote about pragmatism. BTW: seven GOP Senators voted for her confirmation as SG.
Of political interest is what Arlen Specter will do. He voted against her for solicitor general, when he was trying to be a Republican, because she ducked questions he felt were critical. His primary will be over by the time the hearings start, but he'll likely still be a Democrat this time around and vote for confirmation. The White House will begin consultations with Senate Democrats, presumably including Specter, on Wednesday or Thursday.
