Second chance provides Kagan path to Supreme Court nomination

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Second time’s the charm for nominee Kagan

WASHINGTON — From President Barack Obama’s Top 10 list, one nominee emerged — Elena Kagan.

White House aides were already vetting more than two dozen candidates when the soon-to-be 90-year-old Justice John Paul Stevens announced his retirement last month. With an opening on the high court official, senior staff quickly narrowed that pool to 10, sending the president stacks of material to review on each, including academic writings, legal briefs and speeches.

The top 10 included Homeland Security Secretary Janet Napolitano, Michigan Gov. Jennifer Granholm and federal court judges Merrick Garland and Sidney Thomas. Also under consideration were two women who had impressed Obama a year before as he contemplated his first Supreme Court nominee — Kagan and Diane Wood, a federal judge from Chicago.

Obama regarded both women highly, having known them for several years. Though they were among Obama’s finalists for the court the first time around, he ultimately nominated Sonia Sotomayor, the court’s first Hispanic justice.

Among the attributes Obama cited when selling Sotomayor to lawmakers and the American people was her vast judicial experience.

“Walking in the door, she would bring more experience on the bench and more varied experience on the bench than anyone currently serving on the United States Supreme Court had when they were appointed,” Obama said last May.

But this time around, as Obama made calls to lawmakers on Capitol Hill to discuss the high court vacancy and the 10 potential nominees, a different narrative emerged — the desire for a justice whose experience was broader than the bench.

“A lot of people thought it would be good to have someone with a different sort of experience on the Supreme Court,” said Ron Klain, chief of staff to Vice President Joe Biden.

Kagan — having served as a domestic policy adviser under President Bill Clinton, Harvard Law School dean and solicitor general, but never a judge — fit that bill.

Hoping to make his nomination by mid-May, Obama began to narrow the list of 10. Napolitano, who was heavily involved in the government’s response to the oil spill in the Gulf of Mexico and the attempted Times Square bombing, was among those cut.

“The idea of pulling her out of all the things she’s juggling now was inconceivable,” Klain said.

Once again, Kagan would find herself among the finalists Obama invited to the White House to interview for the high court, along with three federal judges. Garland was the first to sit down with Obama face-to-face in the Oval Office on April 16, followed by Thomas on April 29, and Kagan on April 30. Wood was also a finalist for the second straight year, meeting with Obama at the White House on May 4.

The vice president held his own one-on-one meetings with the final four candidates, meeting some for meals at his residence. Obama and Biden discussed the finalists during their weekly lunch last Tuesday, and again while the vice president traveled in Europe late last week.

Privately, some White House aides believed Kagan was the leading contender from the start. But with no official word from Obama as they entered the weekend, staff prepared rollout scenarios for each of the four finalists.

At 8 p.m. EDT Sunday, Obama ended the speculation. In the Treaty Room of the White House residence, he called Kagan to tell her she had been selected as the nominee. Obama also called Garland, Wood and Thomas, as well as current Harvard Law School dean, Martha Minow, who had also been under consideration, to inform them of his decision.

On Monday morning, Obama placed calls to Senate Majority Leader Harry Reid, D-Nev.; Senate Minority Leader Mitch McConnell, R-Ky., and Sen. Patrick Leahy, D-Vt., the chairman of the Senate Judiciary Committee, to announce his choice.

Shortly after, Obama and Biden would stride into the White House East Room alongside Kagan to announce her nomination to the Supreme Court.