KAGAN – AT 7:35 A.M. ET:  Barring a last-minute surprise, or a revelation that she was a pen pal of George W. Bush, President Obama will announce his selection of Elena Kagan for the U.S. Supreme Court today.

So what can we say?  No one denies Kagan's intellect, or her demonstrated ability, as dean of Harvard Law, to "bring people together."  As an individual and an administrator, she has an excellent reputation.

But she has little in the way of a paper trail.  She will, if confirmed, be the only member of the Court without judicial experience, which means she's never written an opinion from the bench.  She is most famous for trying, at Harvard, to bar military recruiters from campus on the basis of the "don't ask, don't tell" policy in the military regarding gay personnel.  Kagan is assumed to be gay, but has apparently never formally confirmed it.

Her role in the military recruitment issue will clearly be a bone of contention in confirmation hearings, but is not expected to block confirmation.

We assume she's a liberal, but most sources say she's not doctrinaire.  (Look, we're not going to get a conservative from Obama.  But we can hope for reasonably sane liberals.)  If she joins the Court, which is highly probable, it will leave the Supreme Court without any Protestant justices.  There will be six Catholics and three Jews.  That is a delicate matter for any politician to bring up these days, but it almost certainly means that Obama's next choice will have to be a Protestant male. 

The problem with Kagan is that, once again, we will have a justice with an Ivy League and Eastern pedigree.  The Court is heavily tipped in that direction, and clearly needs some educational and geographic balance.  The president has said he wants justices with "empathy," but Americans out West or in the South can occasionally use some empathy as well.  Once again we find that the political class that constantly screams for "diversity" never extends that diversity beyond itself. 

We'll learn more about Kagan during confirmation hearings.  She went through easily when confirmed for solicitor general, the post she holds now.  Nothing has changed since then.  She'll be the ninth justice.

May 10, 2010