Signs Pointing to Kagan?
By Leah Nylen | May 4, 2010 10:20 am

Elena Kagan (DOJ)

Are the winds shifting Solicitor General Elena Kagan’s way?

Newsweek seems to think so.

In a piece published Monday, senior administration officials tell the magazine that increasing the gender diversity on the Supreme Court is on President Barack Obama’s mind as he whittles down the list of potential candidates to replace Supreme Court Justice John Paul Stevens.

According to Newsweek, Obama has told friends and colleagues that he would like to be the first president to elevate three women to the highest court.

That leaves Kagan, the former dean of Harvard Law School who was also on the Supreme Court shortlist after Justice David Souter’s retirement last year, in a good position, according to Newsweek’s analysis, since the other women on the shortlist  — Homeland Security Secretary Janet Napolitano and Judge Diane Wood — have potential drawbacks. Wood, a judge on the U.S. Court of Appeals for the 7th Circuit, has a long history of support for abortion rights, which could lead to a nasty confirmation battle with Republicans, and Napolitano’s competence as Homeland Security may actually have done her a disservice. Obama would be hard-pressed to find someone to fill her shoes in the Cabinet if she moved to the court.

Merrick Garland (Smithsonian Institution)

Dozens of commentators have argued that the other shortlister, Judge Merrick Garland, would make a great consensus choice. A moderate on the U.S. Court of Appeals for the D.C. Circuit, Garland also has a history of building consensus with more conservative judges on his court. But, as a senior administration official told Newsweek, Obama may be inclined to keep Garland “in his back pocket” in case of another retirement later in the presidency.

Garland is “the guy you go with when you only have 51 Democrats in the Senate,” the official said.

In any case, we may know soon. On Monday, White House Press Secretary Robert Gibbs said the president was “close” to making a decision on a nominee, and he indicated an announcement might come as soon as this week.


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The Senate Democratic leader describes the Republicans' refusal to hold hearings on President Obama's eventual Supreme Court nominee "historically unbelievable and historically unprecedented."

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