Obama chooses executive branch veteran for Supreme Court slot

In nominating Solicitor General Elena Kagan to replace retiring Supreme Court Justice John Paul Stevens, President Obama broke from the recent tradition of recruiting justices from the judicial branch. But the move is hardly unprecedented, according to legal experts.

Unlike most current and recent justices and nominees, Kagan is not a federal appellate judge. Instead, she has served as solicitor general since March 2009. The solicitor general, a Justice Department position, is responsible for representing the United States before the high court when the federal government is a party in the case.

The Office of the Solicitor General also files briefs if the government has a significant interest in the outcome of the court's decision, even if the United States is not a party. According to the Justice Department, the United States, almost always represented by the solicitor general, is involved in about two-thirds of all Supreme Court cases.

In announcing Kagan's nomination, Obama called her a "superb solicitor general, our nation's chief lawyer representing the American people's interests before the Supreme Court."

"She has won accolades from observers across the ideological spectrum for her well-reasoned arguments and commanding presence," the president said. He also praised her "lifelong commitment to public service."

Choosing someone from outside the judicial branch might seem unusual, but it has historical precedent, legal scholars said.

"We've gotten the view in this country over the last 40 years that the only recruitment tool [for Supreme Court justices] is the judiciary," said Russell Wheeler, a visiting fellow with the Brookings Institution. "That is contrary to how we've looked at it through most of history."

Ilya Shapiro, editor-in-chief of the Cato Supreme Court Review and senior fellow in constitutional studies at the libertarian think tank, said that until a few decades ago it was relatively common to have people from outside the judicial branch serve on the high court. This included governors, senators and law professors.

"I don't think having previous judicial experience is a requirement," Shapiro said. "I've been surprised how much talk there is about this. I don't think that's an issue."

Both Shapiro and Wheeler noted a number of current justices have executive branch experience. Antonin Scalia served in the Office of Legal Council under presidents Nixon and Ford; Clarence Thomas was assistant secretary for civil rights at the Education Department and later, chairman of the Equal Employment Opportunity Commission; and Samuel Alito was assistant to the solicitor general.

During Obama's announcement, Kagan said serving as solicitor general has deepened and enriched her "long-standing appreciation for the Supreme Court's role in our constitutional democracy."

While solicitor general is an executive branch position, it certainly affords a deep familiarity with the Supreme Court. During her time in office, Kagan has determined which cases the government will seek to have reviewed by the high court and what positions the government will take.

"I don't think Kagan, referred to as the 10th justice, will have any trouble adapting to the work there," Wheeler said.

Before being named solicitor general, Kagan served as associate White House counsel to President Clinton and then as dean of the Harvard Law School.