Obama calls court pick Kagan a consensus builder

WASHINGTON Mon May 10, 2010 4:26pm EDT

1 of 12. Solicitor General Elena Kagan smiles during her introduction as the Supreme Court nominee to replace retiring Justice John Paul Stevens in the East Room of the White House in Washington, May 10, 2010.

Credit: Reuters/Larry Downing

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WASHINGTON (Reuters) - President Barack Obama nominated Solicitor General Elena Kagan for the U.S. Supreme Court on Monday, calling her a consensus-builder who has championed the rights of ordinary citizens.

In choosing the 50-year-old former Harvard Law School dean for the lifetime appointment, Obama picked a moderate who court watchers said is unlikely to provoke a damaging Senate confirmation battle in a congressional election year.

But some Republicans criticized Kagan for a lack of experience. She has never been a judge and has served only one year as solicitor general, a post in which she argues cases on behalf of the U.S. government before the Supreme Court.

Obama described Kagan as a fair-minded choice skilled at finding common ground and urged swift, bipartisan approval. He chose her to replace retiring 90-year-old Justice John Paul Stevens, a leading liberal voice on the highest U.S. court.

Experts said Kagan could be expected to pass fairly smoothly through the Senate confirmation process, which can be fraught with political peril. Kagan would not be expected to change the nine-member court's basic ideological balance, which tilts conservative by a 5-to-4 majority.

If confirmed, Kagan would become the third woman on the current court, joining Sonia Sotomayor and Ruth Bader Ginsburg, and only the fourth ever.

Every aspect of her professional and personal life will now come under scrutiny from Republicans seeking to score political points in a congressional election year. But her nomination is unlikely to distract from other White House priorities like job creation, financial reform and climate change legislation.

As solicitor general, Kagan has "repeatedly defended the rights of shareholders and ordinary citizens against unscrupulous corporations," Obama said.

During a White House East Room ceremony, Obama praised her intellect and temperament as well as "her openness to a broad array of viewpoints" and "skill as a consensus-builder." Kagan, who once served as a clerk to famed liberal Justice Thurgood Marshall, called her nomination the "honor of a lifetime."

The Senate voted 61-31 last year to confirm her to her current post, with seven Republicans voting for her.

One of those voting for her last year was Jon Kyl, the Senate's No. 2 Republican and a member of the Judiciary Committee, which will hold hearings on her nomination. Kyl told CNN it was "highly unlikely" that Republicans will mount a filibuster -- a procedural roadblock -- to try to block her.

Without a filibuster, Kagan can be approved for the Supreme Court with only a simple majority. Democrats control 59 of the 100 Senate seats.

'ORDINARY PEOPLE'

Senior Republicans made clear they will not give her rubber-stamp approval.

"Ms. Kagan has spent her entire professional career in Harvard Square, Hyde Park and the DC Beltway. These are not places where one learns 'how ordinary people live,'" Republican Senator John Cornyn said.

The White House noted that the court has historically included many justices who had not previously served on the federal bench, most recently former chief Justice William Rehnquist, a conservative.

The high court decides cases involving contentious social issues such as abortion and the death penalty, as well as high-stakes business disputes. Obama wants Kagan confirmed by early August, so she can join the court in its autumn session.

Republicans zeroed in on Kagan's opposition while at Harvard to on-campus military recruiting. She disagreed with the U.S. policy barring gays from serving openly in the armed forces. Her critics have seized on the issue to try to portray her as anti-military.

The White House intends to push back forcefully against that characterization.

"Elena has always been someone who respects military service, who has encouraged students to seek out the military, but her personal opposition to the policy of 'don't ask, don't tell' is also well known and that is something she also conveyed to students at Harvard," said Ron Klain, chief of staff to Vice President Joe Biden.

Obama raised one bone of contention between him and U.S. Chief Justice John Roberts -- the 5-4 ruling in January forged by the court's conservative majority that allows corporations, unions and other groups to spend unlimited sums on U.S. political campaigns.

He praised Kagan for choosing to argue the case before the court, although legal experts expected the government to lose.

"It says a great deal about her commitment to protect our fundamental rights, because in a democracy, powerful interests must not be allowed to drown out the voice of ordinary citizens," Obama said.

She is Obama's second nominee to the court. His first, Sotomayor, was confirmed by the Senate last year, becoming the first Hispanic Supreme Court justice.

Some legal experts said Kagan is not as liberal as Stevens and could move the court a bit to the right. Obama interviewed at least four people for the vacancy, including federal appeals court judges Diane Wood, Merrick Garland and Sidney Thomas.

As solicitor general, Kagan has a mixed record in business cases. She supported shareholders in a case about excessive mutual fund fees and backed investors in their securities fraud lawsuit against Merck & Co Inc over its withdrawn Vioxx drug. But she opposed foreign investors who want to sue in U.S. courts for transnational securities dealings.

(Additional reporting by Steve Holland, Jim Vicini, Thomas Ferraro and Ross Colvin; Editing by Will Dunham)

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