Elena Kagan: Changing the Face of the Court
June 22, 2010
If confirmed as the next Associate Justice of the United States Supreme Court, Elena Kagan would change the face of the Court in several ways. Until 1981, no woman had ever served as a justice on the Supreme Court. That changed with the confirmation of Sandra Day O’Connor. She was joined on the Court by Ruth Bader Ginsburg in 1993, where the two served together until Justice O’Connor’s retirement in 2006. Justice Sonia Sotomayor joined Justice Ginsburg on the Court in 2009, and Kagan’s confirmation this summer would bring the total number of woman on the Court to three, an historic level. Kagan’s confirmation would be boundary breaking, much like her career, which has included being the first female Dean of Harvard Law School and the first female Solicitor General. In addition to shifting the gender balance on the Court, Kagan would be the only justice on the current Court who has not previously served as a judge, but rather has spent her career in government and academia. Federal law does not set out criteria to be a Supreme Court justice – in fact, nominees to the Court are not even required to be trained attorneys or have previous judicial experience. It is a historical anomaly that all nine Justices on the current Court served as judges before becoming justices of the Court. Some of history’s most notable justices, including Earl Warren, Felix Frankfurter, William Douglas, Hugo Black and William Rehnquist, were never judges before being appointed to the Court. In fact, there was only one former judge on the Court that decided Brown v. Board of Education, the landmark decision that declared state laws establishing separate public schools for black and white students as unconstitutional. While critics have noted Kagan’s lack of previous judicial experience as a weakness in her nomination, history shows that previous judicial experience is not the sole indicator of an excellent justice. Kagan’s professional record also makes her a unique nominee. Upon graduating from Harvard Law School, Kagan clerked for the U.S. Court of Appeals for the D.C. Circuit and then for the legendary Supreme Court Justice Thurgood Marshall. Following her clerkship and a brief stay at a private law firm, Kagan joined the faculty at the University of Chicago and Harvard Law Schools. In between professorships, Kagan served in the Clinton Administration, as a member of the White House Counsel’s Office and as the Deputy Director of the Domestic Policy Council (DPC), where she dealt with policy issues affecting the LGBT community – including HIV/AIDS and hate crimes. Following her time in the Clinton Administration, Kagan returned to Harvard, where she eventually became Dean of the Law School. While at Harvard, Kagan enforced Harvard Law School’s anti-discrimination policy with regard to employers recruiting on campus, even when it conflicted with the discriminatory “Don’t Ask, Don’t Tell” law. In addition she is credited with bringing together a deeply divided law school faculty during her time as dean. Kagan left Harvard Law School only after being confirmed as Solicitor General in 2009. Her impressive career in the federal government and academia have equipped her with a unique perspective on how laws and polices affect people, including LGBT people. With the Kagan confirmation hearing only days away from beginning, we continue to scrutinize her record to best understand what kind of judge she may be. We look forward to learning more about the nominee and her judicial philosophy next week. As this week progresses, we will continue this series of blogs on Kagan and her nomination to the Supreme Court. Learn more about federal judicial nominations and follow our work on these crucial issues on HRC’s Equality in the Courts page. Partial Contribution by Jessica Singleton, Legal Assistant.
November 22, 2013