AC360 Wednesday 8p

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May 10th, 2010
01:24 PM ET

My law school classmate, Elena Kagan

Program note: Watch Jeffrey Toobin on AC360° tonight at 10pm ET to hear his thoughts on Supreme Court nominee and former law school classmate, U.S. Solicitor General Elena Kagan.

CNN: What is Elena Kagan's strength?

Jeffrey Toobin: Elena Kagan is known as a consensus builder. During her time as dean of Harvard Law School, she united a deeply divided faculty. Clearly, the hope from the president is that she will do for the Supreme Court what she did for the Harvard faculty, if that's possible.

CNN: You knew her at Harvard. What is she like?

Toobin: Smart, funny, self-confident, extremely intelligent but not obnoxious about it. She's always been a well-grounded person who brings out the best in others around her.

CNN: Some African-American groups and commentators have criticized her appointments at Harvard, charging that almost all of the people she hired were white and of those, only six were women. Could that be a factor in her confirmation?

Toobin: The upper reaches of the legal profession are still dominated by men, so the talent pool still skews that way. Under Kagan, the diversity of the faculty at Harvard changed, but not as fast as the rest of the country.

CNN: How does Elena Kagan stand politically?

Toobin: She's clearly a Democrat with a capital D. She worked for both the Clinton and Obama administrations. What is unclear, however, is her stand on specific social issues that go before the court - affirmative action, abortion, church and state issues. Unlike a sitting judge, she has never been forced to write opinions on those issues, and she has chosen not to write about them as an academic. As far as I know, she has not even talked about her views.

CNN: What do you say to observations that she has never been a judge?

Toobin: Since 2005, every justice for the court has been a former appeals court judge, but that model is relatively new by Supreme Court standards. During the time of Brown v. Board of Education, in 1954, eight of the nine justices had never been judges before. Obama is a president who respects diversity in all areas, including professional background. He said he wanted to break the monopoly of former judges on the court, and this is a first step.

CNN: What lies ahead for confirmation?

Toobin: I think the days of justices being confirmed with more than 90 votes, which happened with Justice Stevens, Justice [Antonin] Scalia, and [Ruth Bader] Ginsburg, are over. But the odds are that she will be confirmed by a comfortable margin. The fact that the Republicans have not been breathing fire from the start suggests they are not looking for a huge fight. Of course, they don't have to make up their minds right away.

CNN: How will the process play out?

Toobin: The hearing will probably be in early July, and the Senate vote soon after. Kagan should be in place well before the first Monday in October. That was how it worked with Justice [Sonia] Sotomayor, and there is no reason to think it will be significantly different this time.

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