That Supreme Court nominee Elena Kagan has never wielded a gavel could be both her greatest strength and most serious liability as her nomination faces scrutiny.
President Barack Obama praised the Upper West Side native as a “trailblazing leader” and “consensus builder.” While Kagan has broken barriers as the first woman to serve as solicitor general and to serve as dean of Harvard Law School, she has never been a judge.
That could be a speed bump in confirmation hearings, with opponents suggesting she’s not up to the job and even liberals worried they lack a clear idea of how she might rule on key issues such as abortion and gun control. But her nontraditional resume could be a blessing in disguise.
“She’s got a remarkably thin paper trail for a person with that breadth of experience,” said Michael C. Dorf, a constitutional law scholar at Cornell University. “It’ll be hard to find a smoking gun.”
Supporters said her academic background makes her a better listener, essential in shaping a divided Supreme Court. Observers said Kagan, generally perceived as a centrist, wouldn’t immediately change the balance of the high court.
If confirmed, the umarried Kagan, 50, would be the youngest sitting justice. The Supreme Court would for the first time have three sitting female justices – all with roots in the Big Apple.
“It’s not by accident that all three are from New York,” said Dorf. “Being a New Yorker makes you tough, and so you don’t back down from things.”
Kagan is a graduate of Hunter College High School, where her mother once taught and her brother, Irving, still teaches social studies. Her nomination was celebrated there Monday.
“You can see why her ambitions were fostered in this environment,” said ninth-grader Ping Hu, 14. “The teachers are really supportive and it’s sort of expected that you’re going to be something more.”
The White House wouldn’t comment about Kagan’s sexuality, an issue that has been lighting up the blogs. While she has been mum on a number of hotly debated issues, Kagan has voiced her opposition to the military’s “Don’t Ask, Don’t Tell” policy on homosexuality, a stance that will be challenged by conservatives.
“Although it would mark a welcome leap forward to have an openly LGBT Supreme Court justice, the White House and Kagan herself have denied she’s gay,” said Kevin Naff, editor of gay newspaper the Washington Blade. “I assume she understands the seriousness of being caught in a lie.”