THE BLOG
05/10/2010 01:38 pm ET Updated May 25, 2011

The President's Different and Enigmatic Supreme Court Choice

Elena Kagan, who the President has selected as the next associate Justice to the United States Supreme Court in some ways resembles the president who selected her. Both are brilliant Ivy Leaguers with experience in legal academia. Their paths to high office involve careers marked more by consensus building and the avoidance of an extensive embarrassing political paper trail than they do controversy. One thing that both learned, Kagan, as a professor at the conservative University of Chicago Law School and later as Harvard law Dean, and Obama as head of Harvard's law review is the value of consensus building and deliberation involving intellects from different parts of the political spectrum. Like President Kennedy's "Best and Brightest" who critics point out made some key errors, Obama often chooses those who he regards as steady, like Gates as Defense Secretary, over those with hard left politics or a traditional resume.

To be sure, Kagan's brief role as Solicitor General should provide her with enough non-academic gravitas to stave off concerns about her lack of experience both in legal publishing and judicial service. While the most frequent feeder to the high court has by far has been the federal appellate bench, the Solicitor General, who oversees the government's litigation before the Supreme Court is sometimes referred to as the Tenth Justice, and her previous clerkship at the Supreme Court won't hurt either. Current Chief Justice John Roberts, though never Solicitor General, was a frequent litigator before the High Court, and Thurgood Marshall, lead counsel in Brown v. Board of Education, 347 U.S. 483 (1954), served briefly as Solicitor General before his Supreme Court Appointment in 1967

While the Current court is completely filled by those who have sat on the federal bench before their appointment, if history is any indication, this will be a footnote in years to come. Felix Frankfurter, William O. Douglas as well as Chief Justices Earl Warren and William Rehnquist served for decades without a resume that included any previous judicial experience at all. If confirmed Kagan will be the third Jew, as well as the third woman on the High Court. This will be the first time in history that three women have sat on the court at the same time. Her youth -- she's only 50 -- coupled with her past experience as a consensus builder, and lack of a judicial track record to read into, may make liberals a bit nervous about how her jurisprudence will evolve. However, what may be the most interesting for liberals and conservatives alike is if she can build a consensus across political lines in divided decisions, how will this affect the balance of a right leaning conservative court in crucial decisions that will come down in the decades to come. Since she earlier criticized a nomination process where these kind of answers are avoided, the coming nomination hearings should be interesting, even if the questions still remain afterwards.