Would a Justice Kagan Sidestep Gay Issues?

Sources said there is no reason why Kagan would not be eligible to hear the federal challenge to California’s Proposition 8, Perry v. Schwarzenegger, should the Supreme Court eventually take the case, because the Justice Department is not defending the state ballot initiative in court.

If confirmed, Kagan, the nation’s first female solicitor general, would be the third woman sitting on the current Supreme Court, representing the greatest number of women to ever concurrently sit on the nation’s high court. She would also be the only non-judge to be elevated to the court since Justices Lewis F. Powell and William Rehnquist, both who were confirmed in 1971. Rehnquist became chief justice in 1986, a position he held for nearly 19 years.

“[Kagan] believes, as I do, that exposure to a broad array of perspectives is the foundation not just for a sound legal education but of a successful life in the law,” President Barack Obama said Monday at a ceremony in the East Room of the White House.

Obama sought to paint Kagan, who would replace retiring justice John Paul Stevens, as a centrist and a “consensus builder.”

“Elena is respected not just for her intellect and record of achievement but also for her temperament, her openness to a broad array of viewpoints,” Obama said. “Her habit, to borrow a phrase from Justice Stevens, of understanding before disagreeing. Her fair-mindedness and skill as a consensus builder.”

Though Kagan is said to have developed a good rapport with conservatives such as Justice Antonin Scalia while representing the U.S. government before the Supreme Court, Republican lawmakers such as senators Jon Kyl of Arizona and Orrin Hatch of Utah, who voted to confirm her nomination as solicitor general, have already begun to set the stage for a battle over judicial philosophy.