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Law professor: Obama's pick for Supreme Court is nonconfrontational

Monday, May 10, 2010 | 7:00 p.m. CDT; updated 9:35 a.m. CDT, Tuesday, May 11, 2010
From right, President Barack Obama after introducing Solicitor General Elena Kagan as his choice for Supreme Court Justice in the East Room of the White House in Washington on Monday.

COLUMBIA — The nomination of Elena Kagan to replace retiring U.S. Supreme Court Justice John Paul Stevens is a nonconfrontational choice by President Barack Obama, MU law professor Richard Reuben said Monday.

"It's not really ideologically charged," he said. "It's not a nomination that's going to make the other side mad."

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If confirmed, she would be on the left — but not far left — of the Supreme Court spectrum, he said. She might disappoint liberal supporters of Obama.

Kagan has had a distinguished career in academics and now serves as Obama's solicitor general, but she is already drawing criticism because she has never been a judge.

Yet, prior judicial experience is not a requirement for court nominees, said Reuben, who has covered the high court for the American Bar Association Journal.

"It's disingenuous to say she's unqualified," he said.

In fact, Reuben said a judgeship wasn't considered critical until the last 20 years or so. A number of justices never served as judges before they were confirmed, including former Chief Justice William Rehnquist and Justice Byron White, he said.

Many were academics, politicians or business people. Kagan, 50, was dean of Harvard University Law School prior to joining Obama's staff.

"She took a contentious faculty and reached out to the extremes," Reuben said. She built consensus and was effective as dean, he added.

Her nomination stands in contrast to the contentious Supreme Court nomination and confirmation process often seen since the failed nomination of Robert Bork in 1987. Bork, a strong conservative put forth by President Ronald Reagan, was to be a  replacement for retiring Justice Lewis Powell, then the ideological center of the court, Reuben said.

If Kagan is confirmed, she might change the reasoning through which the court arrives at decisions, he said, but she would probably not change those decisions.

Supreme Court nominations were not as political before Bork, Reuben said. His nomination was seen as an attempt to change the balance between liberals and conservatives.

John Paul Stevens, whom Kagan would replace, is considered one of the high court's more liberal members. Reuben said if Kagan is confirmed, it would not represent a shift in power between ideological extremes.

That does not mean that she will be confirmed without going through tough questions, he said.

"Everybody gets questioned."


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