Kagan bucks 40-year trend as court pick

WASHINGTON (Reuters) - If Supreme Court nominee Elena Kagan wins Senate confirmation as expected, she will be the first new member of the high court in four decades who has never been a judge.

President Barack Obama had been urged by fellow Democrats to avoid nominating another in what's been a parade of federal appeals court judges and pick someone with broad experience outside "the judicial monastery."

Obama did just that, and Republicans promise to question Kagan at her confirmation hearing beginning on Monday about whether she has what it takes to serve on the highest U.S. court.

Unlike some previous Supreme Court nominees, Kagan has sparked little controversy. She has been lauded by colleagues as a consensus builder, though some Republican question if she's more driven by politics than the law.

"It's safe to say that most Americans don't know all that much about her," Senate Republican Leader Mitch McConnell said.

Kagan, who in addition to becoming Harvard Law School's first woman dean in 2003, served as an attorney in the Clinton White House in the 1990s and as a young law clerk in the 1980s to the late U.S. Supreme Court Justice Thurgood Marshall.

For the past year, she has been Obama's solicitor general, a post that had her represent the U.S. government before the court that she now seeks to join.

The last two justices who had not been judges, William Rehnquist and Lewis Powell, joined the Supreme Court in 1972.

Republicans have raised concerns about Kagan's work two decades ago for Justice Thurgood Marshall. Papers she wrote then show her standing with Marshall and other liberals.

"I was a 27-year-old pipsqueak, and I was working for an 80-year-old giant in the law and a person who, let us be frank, had very strong jurisprudential and legal views," Kagan said of her writing from that period.

Kagan, 50, would replace retiring Justice John Paul Stevens, the court's leading liberal. She would likely not change the balance on the often divided nine-member court, which is controlled by a five-member conservative majority.

She would join Ruth Bader Ginsburg and Sonia Sotomayor, who Obama appointed last year, as the court's female justices.

If confirmed, Kagan would become the fourth woman ever to serve on the Supreme Court and it would be the first time that three women have served on the court at the same time.

MIXED RECORD ON BUSINESS

As solicitor general, a post that has been dubbed the "10th justice" because of the close relationship with the Supreme Court, 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 pain drug. But she opposed foreign investors who want to sue in U.S. courts for transnational securities dealings.

Born in New York and the daughter of a lawyer who was a fair-housing advocate, Kagan graduated from Princeton University in 1981 and received her law degree from Harvard.

In 1991, Kagan began teaching at the University of Chicago Law School, where Obama also taught at the time. Kagan focused on administrative law and the U.S. Constitution's First Amendment, which guarantees freedom of speech and religion, and she generally supported free-speech rights.

Between 1995 and 2000, Kagan served as associate White House counsel in the Clinton presidency, deputy assistant to the president for domestic policy and deputy director of the domestic policy council.

She helped develop new tobacco regulations and worked on issues such as education, crime and welfare reform.

In 1999, Clinton nominated her to the U.S. court of appeals in Washington, but the Republican-led Senate Judiciary Committee never scheduled a hearing for her.

Kagan became a law professor at Harvard and was named dean in 2003. She was widely credited at Harvard with working well with warring liberal and conservative factions, a skill her supporters believe would help her become a consensus builder on the top court.

Kagan is certain to face questioning by Republicans over her opposition to on-campus military recruiting at Harvard because of U.S. policy barring gays from serving openly in the armed forces.

As solicitor general, she has been criticized by civil libertarians for some of the Obama administration's positions.

She successfully urged the Supreme Court to reject or stay away from legal claims involving Guantanamo prisoners, including an appeal by several former detainees who sued over alleged abuse and torture.

Kagan has never married and has no children.

While Obama has praised Kagan for her understanding of "ordinary people," she told the Senate Judiciary Committee last month that she is a debt-free millionaire.

(Editing by David Alexander and Doina Chiacu)