POLITICS
05/10/2010 05:16 pm ET Updated May 25, 2011

Elena Kagan Nomination: Expect A Fight In The Senate

"I think it's a home run."

That was the reaction of David Greenberg, professor of history and journalism at Rutgers University, to the news that President Obama nominated Elena Kagan to the Supreme Court.

"She's young, liberal, eminently qualified and personally appealing," Greenberg added.

So at age 50, Solictor General Kagan becomes only the fourth woman nominated to the nation's highest court; two of those nominations coming within the last nine months, strengthening even further President Obama's appeal to women (a mighty and growing voting bloc), but a nominee who comes with limited judicial experience and some controversial opinions such as opposing previous administrations' bans against gays serving in the military and denying trials to military combatants.

Like many of Obama's Cabinet picks, Kagan has some Chicago roots. While serving on the faculty of the University of Chicago Law School in 1991, Kagan met Obama who was teaching there at the time.

Without many public legal opinions to scrutinize, the Senate Judiciary Committee won't have much to measure her constitutional leanings in the weeks leading up to the hearings.

Currently, the biggest question is whether Obama made the best choice nominating someone who hasn't been a sitting judge. The last time this happened (aside from Harriet Miers in 2005) was when Lewis Powell and William Rehnquist were nominated by Richard Nixon on the same day in 1972.

Legal scholars, such as Jonathan Entin, professor of law and political science at Case Western University, rejects the biting criticism directed at Obama that because Kagan isn't a sitting judge, it means she's not qualified. Entin cited other able justices over the last century or so, such as Louis Brandeis, Charles Evans Hughes, George Sutherland, Owen Roberts, Hugo Black, William Orville Douglas, Felix Frankfurter, Robert Jackson, Earl Warren and Byron White, who came to the court with little judicial experience but exhibited ideological expertise in dealing with divisive constitutional issues.

Despite limited judicial experience, it would be hard to make a compelling case the New York native isn't qualified; having served as dean of the Harvard Law School, and since 2009, as solicitor general, a prestigious position many consider a stepping stone to the U.S. Supreme Court.

Other solicitor generals nominated to the Supreme Court, include: William Howard Taft, Stanley Reed, Robert Jackson, and Thurgood Marshall.

Oddly enough, liberals might have more of an issue with Kagan than conservatives, particularly on the question of whether her confirmation will tilt the court further to the right.

Robert W. Gordon, professor of law and legal history at Yale University, thinks Kagan is likely to move the court further to the right -- but with so few legal opinions, it's hard to tell.

"She will probably be much more sympathetic to government regulation than the conservative wing of the court," Gordon said. "One big unanswered question is what her views are on executive power and national security. Stevens was a strong liberal on most of those issues. Kagan may -- I stress may -- incline more to supporting government claims of emergency power."

During her confirmation hearings for solicitor general, Sen. Lindsay Graham (R-SC) asked the nominee if a member of an enemy force should be detained without trial, an opinion supported by Attorney General Eric Holder. Kagan responded, "I think that makes sense, and I think you're correct that that is the law."

Another fear liberals might have with Kagan concerns an article she wrote in 2001 in the Harvard Law Review, "Presidential Administration," which some have interpreted as expressing support for expansive executive authority, coming as it did during the height of President George W. Bush's war on terror. The Scotus Law Blog, however, dismisses such criticism as misguided. "The article" Tom Goldstein writes, "has nothing to do with the questions of executive power that are implicated by the Bush policies -- for example, power in times of war and in foreign affairs. "It is instead concerned with the President's power in the administrative context - i.e., the President's ability to control executive branch and independent agencies."

One issue conservatives might take issue with involves Kagan's refusal to let military recruiters on the campus of Harvard University when she was dean of Harvard Law school, because she, along with the college, disagreed with the military's "Don't Ask, Don't Tell" policy, a policy which Harvard felt discriminated against gays serving openly in the military.

Hard-lined conservatives consider this to be a sure sign of how she'll vote on other contentious gay issues: such as supporting a constitutional amendment to allow gay marriage

Of course, the fisticuffs over Kagan's nomination might not have any ideological motivation at all. Republicans and Democrats, remember, don't seem to need to have much of a reason for disagreeing these days. Opposing Kagan might just be good politics for Republicans, much like opposing health care, financial reform and a host of other legislative hot-button items have bitterly divided both parties.

Responding to the hostility from the far right, which seems prone to oppose any nominee Mr. Obama offers, Professor Entin says, "It says a lot about the state of American political discourse, that some of these folks want to have a serious debate about whether a former dean of the Harvard Law School who enjoys almost universal respect from colleagues of all philosophies and seems to have done an excellent job as Solicitor General is qualified to sit on the Supreme Court."

"Not that I'm surprised," Entin adds, "given the degradation of civic culture these days."

Whether Kagan's nomination will lead to an ideological showdown is uncertain.

The solicitor general seems a relatively safe choice with a history of being conciliatory rather than confrontational. As dean of the Harvard Law School, for example, Kagan distinguished herself by developing strong relationships with conservative and liberal professors and helping end feuds within her department. Despite some opposition, she hired Jack Goldsmith, a former assistant attorney general in the Office of Legal Counsel, who was believed to have played a part in authoring the Bush Administration's wartime interrogation policy. In her first years at Harvard, Kagan introduced a new tradition: free coffee and bagels for students

As it stands, the Scotus Law Blog head count shows she'll likely be confirmed, but not quite as easily as Sonia Sotomayor with 58 supporting her, 30 opposed, leaving 14 votes up for grabs.

Two historical footnotes:

Should Kagan be confirmed, she would join Justices Scalia, Ginsburg, and Breyer who served as law professors before their appointment as court of appeals judges.

According to Professor Entin, Kagan would additionally become the fourth law school dean to serve on the Supreme Court. The others were William Howard Taft who was dean at the University of Cincinnati in the 1890's, Harlan Fiske Stone who was dean at Columbia, and Wiley Rutledge who was dean at the University of Iowa.