Indiana University law professors comment on Kagan nomination
FOR IMMEDIATE RELEASE
May 10, 2010
President Obama today (May 10) nominated Solicitor General Elena Kagan to the U.S. Supreme Court. Kagan was the first woman to serve as dean in Harvard Law School's 186-year old history and the first woman to serve as solicitor general, the lawyer who represents the United States government before the Supreme Court. Law professors at the Indiana University Maurer School of Law-Bloomington and the Indiana University School of Law-Indianapolis are available to comment.
Gary R. Roberts, dean of the IU School of Law-Indianapolis, says Kagan has the qualities to become an effective justice.
"Elena Kagan is a marvelous choice for nomination to the Supreme Court," said Roberts, who met Kagan while at Harvard working on a book project and got to know her attending conferences when both were law deans. "She is not only intellectually brilliant, but she is also personable, charming, politically astute, and very pragmatic," he said. "As dean of the Harvard Law School, she was able effectively to pull together very contentious factions and make significant progress in a number of areas that had been problematic there. I have no doubt that while there will be some grumbling from the usual suspects in the Senate, Elena will impress and charm the Senators and easily be confirmed in time for her to start the new term the first week in October."
Roberts, who is also the Gerald L. Bepko Professor of Law, can be reached at 317-274-2581 or robertsg@iupui.edu.
Craig Bradley, the Robert A. Lucas Professor of Law at the IU Maurer School, praised the nomination.
"Elena Kagan is an excellent choice: highly qualified, relatively young at 50 and, apparently without a record that lends itself to conservative attack," he said. "She has worked in all three branches of the government, including clerking for Justice Thurgood Marshall. She has been dean of Harvard Law School and the nation's chief advocate in the Supreme Court as solicitor general. She brings the number of women on the court to three -- a number that comes closer to representing the makeup of the legal profession. All indications are that she will not have difficulty being confirmed."
Bradley clerked for former Supreme Court Justice William Rehnquist from 1975-76 and is the author of The Rehnquist Legacy, published in 2006. He can be reached at 812-855-1257 or by e-mail at bradleyc@indiana.edu.
Luis Fuentes-Rohwer
Luis Fuentes-Rohwer, professor of law at the IU Maurer School, says Kagan is a legal insider who missed a chance to address diversity during her tenure as dean of Harvard Law.
"The nomination of Elena Kagan to the U.S. Supreme Court is troubling. Her record as dean of the Harvard Law School leaves many questions about her commitment to diversity in the American legal system. One must question whether Solicitor General Kagan would have made it as far as she did had it not been for her extensive network of influential people. This is why President Obama's nomination of Judge Sotomayor, standing alone, was remarkable. Here was a total outsider making it in a world that demands connections and strong friendships with the right people. With Elena Kagan, President Obama is reversing himself 180 degrees. Not only is he appointing an insider, but one who, when given the chance, did nothing for people on the outside. That in itself is unfortunate, even heartbreaking."
Fuentes-Rohwer's research focuses on the intersection of race and democratic theory. He can be reached at 812-855-5003 or lfr@indiana.edu. An article that he co-authored, raising questions about Kagan's record at Harvard, can be seen at https://www.salon.com/news/opinion/2010/05/07/law_professors_kagan_white_house/.
David Orentlicher, the Samuel R. Rosen Professor of Law at the IU School of Law-Indianapolis, says Kagan's appointment represents both a broadening and a narrowing of diversity on the Supreme Court.
"In addition to a nominee who will bring considerable intellectual firepower to the Supreme Court, we will have three women on the court for the first time," he said. But Kagan is yet another nominee who went to an elite law school and then followed a career track to Washington, D.C.
"We may be broadening our demographic diversity, but we seem to be narrowing the professional paths that get you to the Supreme Court," Orentlicher said. "We think of ourselves as the land of opportunity, but is it really true if your prospects for becoming a Supreme Court justice are decided when you're 22 years old?" Another message sent by the nomination, he said, is that a nominee who hasn't staked out strong positions will be easier to confirm. "It's the lingering effect of the (Robert) Bork nomination," he said. "If you want to be a Supreme Court justice, don't leave a paper trail."
Orentlicher was a Harvard Law School classmate of Kagan, and they served together as editors on the Harvard Law Review. He may be reached at 317-658-1674 or dorentli@iupui.edu.
