Four months after becoming dean of Harvard Law School, Elena Kagan sent an e-mail to students and faculty lamenting that military recruiters had arrived on campus, once again, in violation of the school's anti-discrimination policy. But under government rules, she wrote, the entire university would jeopardize its federal aid unless the law school helped the recruiters, despite the armed forces' ban on openly gay members.
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Her stance put Kagan squarely in sync with professors at Harvard and other law schools -- and wholly out of sync with the Supreme Court, which later ruled unanimously that the schools were wrong. Four years after that ruling, Kagan, now the U.S. solicitor general, is a leading candidate to succeed retiring Justice John Paul Stevens on the nation's highest court. Conservatives have signaled that if President Obama nominates her, her stance on this issue dangles -- like perhaps no other in her career -- as ripe fruit opponents would grab to thwart her confirmation.
The contemporary nominee's resume yields so much valuable information, legal scholars say, that unexpected judicial decisions are much less likely now. Nominees' backgrounds these days often include work for the executive branch in Washington and substantial service on a federal appeals court.
President Obama is about to nominate someone for the Supreme Court. On the day he or she is unveiled, conservatives will announce that they are approaching the selection with an open mind. Ten minutes later they will declare, more in sadness than anger, that the nominee has the judicial philosophy of Chairman Mao and the temperament of Dennis Rodman. Ten minutes after that, liberals will rise en masse to defend the nominee as wise, brilliant and humane, a person who restores our faith in humankind. And the kabuki theater will continue like that all summer long.
The theater preordains a more partisan SCOTUS because after a nominee is brutalized by either political party the nominee will never be a neutral referee again. They are after all human.
After graduating with honors from Harvard University and Harvard Law School, D.C. Circuit Judge Merrick Garland clerked for Judge Henry Friendly on the Second Circuit and then for Justice William Brennan.
Garland has spent most of his career in public service, much like Justice Samuel Alito. Both served as Assistant United States Attorneys and as high-level aides to Attorneys General. If nominated and confirmed to the Court, Garland would be the third sitting justice with prosecutorial experience (joining Justices Alito and Sotomayor).
