On Friday Elena Kagan, 48, was sworn-in by Chief Justice John Roberts and became the nation’s first female Solicitor General, a position informally regarded as the tenth Supreme Court justice.
Kagan is a former University of Chicago Law School teaching colleague of President Obama and is regarded as a noteworthy contender for any opening on the high court that he would fill. Justices John Paul Stevens, 88, Ruth Bader Ginsburg, 76, and David Souter, 69, are considered the most likely to retire during Obama’s presidency.
Kagan’s role as solicitor general is to represent the United States – including defending acts of Congress — at the Supreme Court and also deciding when to appeal lower court decisions. Her personal views on key issues are less important than they would be if she were nominated to be a judge.
Next month the Supreme Court will debate about the continuing viability of a key provision of the federal law that enforces the voting rights of minorities and this will be Kagan’s first opportunity to argue a Supreme Court case. This will be akin to an audition for the big show – to be a member of the big 9.
The case is about the landmark Voting Rights Act and its requirement that all or parts of 16 states with a history of discrimination get approval before instituting any changes that affect voting. It has not been announced who will argue the case, but the Solicitor General, the administration’s top Supreme Court lawyer, typically handles the biggest cases.
Kagan clerked for the late-Supreme Court Justice Thurgood Marshall and in her role as Dean of Harvard Law School. She has also hosted several justices at events at Harvard. Justices Stephen Breyer, Anthony Kennedy, Antonin Scalia, Souter and Roberts are all Harvard alumni. Justice Ginsburg began her legal studies at Harvard, but received her degree from Columbia University.
Kagan’s efforts to bridge the gap between conservatives and liberals on Harvard’s complex and multifarious faculty won her praise and she was endorsed by several predecessors – Republicans and Democrats alike – to be Solicitor General.
She and Roberts, both former Supreme Court law clerks, also share an odd history. Roberts was nominated for a seat on the federal appeals court in Washington in 1992, but not confirmed by a Democratic-controlled Senate. Kagan was nominated to the same court in 1999, but the Republicans who controlled the Senate then did not act on the nomination.
When George W. Bush became president in 2001, he nominated Roberts to the same seat Kagan had been chosen to fill.