Published August 05, 2010
On the brink of becoming the fourth woman to serve on the Supreme Court, Elena Kagan is poised to step up to the bench at a time when some of the hottest disputes in the country could soon fall into the lap of those nine justices.
The Senate on Thursday is set to confirm Kagan, President Obama's nominee and his outgoing solicitor general. She has nearly the entire Democratic caucus on her side, as well as enough Republican backing to avoid a filibuster -- despite complaints from some GOP leaders that she is a political activist. The vote is to be one of the Senate's last actions before its members depart for a monthlong vacation.
But Kagan won't have much downtime. The former Harvard Law School dean, who has never served as a judge, could be tasked with helping decide seminal cases in the early part of her term -- at least two of them regarding the actions of her former employer, the Obama administration.
"She is likely going to hit the ground running once she is sworn into office," said Jonathan Turley, law professor at George Washington University. Turley said that despite criticism Kagan is somewhat of a blank slate, the early part of her term could quickly answer questions the public has about her views.
"She will be forced to articulate her judicial philosophy fairly early in her tenure," he said.
The most prominent case on the day of the confirmation vote is that of the same-sex marriage ruling in California. A District Court judge on Wednesday struck down the state's ban on same-sex marriage as a civil rights violation.
While the ruling affects only California, the appeal will go to the 9th U.S. Circuit Court of Appeals, which has jurisdiction over nine Western states. The outcome there eventually could force the U.S. Supreme Court to confront the question of whether gays have a constitutional right to wed.
On top of that, the Department of Justice continues to fight Arizona in U.S. District Court over its law making illegal immigration a state crime. The judge last month blocked key provisions of the state legislation, but proponents have vowed to take the case to the Supreme Court if necessary.
At issue is whether states can unilaterally assume responsibility for enforcing federal immigration law.
Third, the legality of a key provision in the health care overhaul passed by Congress this year has been called into question. A U.S. District Court judge on Monday ruled that the state of Virginia could proceed with its lawsuit challenging the federal government's attempt to force Americans to buy health insurance. Judge Henry Hudson said he is allowing the suit against the U.S. government to proceed, saying no court has ever ruled on whether it's constitutional to require Americans to purchase a product.
Virginia Gov. Bob McDonnell told Fox News on Thursday that the case could end up before the Supreme Court.
"I don't think that's what our founders envisioned in the Constitution," he said of the law. "We think it's worth a fight."
Adding to the debate, the state of Missouri just approved -- overwhelmingly -- a ballot measure to prohibit the government from mandating the purchase of health insurance. The vote may have been symbolic since federal law typically trumps state law, but it revealed growing discontent over the provision.
Turley said it's an open question as to whether Kagan will feel compelled to recuse herself from any of the cases that involve the Obama administration. He said she likely was not significantly involved in either the health care law or the Arizona lawsuit.
Kagan's nomination to a lifetime seat on the nation's highest court has garnered relatively little notice this summer, despite the critical decisions the court could make in the months and years ahead. The public and elected officials have been preoccupied by bad economic news and the Gulf oil spill, and many lawmakers are nervously eyeing the November midterm congressional elections.
She's not expected to alter the ideological balance there as she succeeds retired Justice John Paul Stevens, who is regarded as a leader of the court's liberal wing.
But senators have used the debate to press dueling visions of the Supreme Court. Democrats say Kagan would be an important counterweight to a conservative majority they say has defied Congress and ignored the Constitution in its rulings on issues such as workplace rights and campaign finance.
Republicans argue that Obama's choice of Kagan reflects Democratic attempts to pack the courts with liberals who will mold the law to their agendas.
GOP senators have painted Kagan, 50, as antigun and pro-abortion. And they have denounced her decision to bar military recruiters from the Harvard Law School career services office because of the prohibition against openly gay soldiers. They also said her decision as solicitor general not to pursue a legal challenge to the federal "don't ask, don't tell" policy on gays in the military showed that she allowed her personal stance against the law to interfere with her duties as the government's top lawyer.
Kagan, who called the "don't ask, don't tell" policy abhorrent, has said she was merely complying with the university's nondiscrimination policy.
She told senators last month at her confirmation hearings that she had made a strategic decision to wait before appealing "don't ask, don't tell."
When sworn in, Kagan would join two other women on the court, Ruth Bader Ginsburg and Sonia Sotomayor. Sandra Day O'Connor was the first woman appointed to the court. She served from September 1981 to January 2006.
The Associated Press contributed to this report.