How to judge court nominee Elena Kagan? Let us count the ways

SHE'S BEEN rumored for weeks as President Obama's likely choice to replace retiring Justice John Paul Stevens on the Supreme Court, and yesterday Obama made it official by picking the administration's 50-year-old solicitor general, Elena Kagan, as his nominee.

But, even though she's been all over the news cycle for 24 hours, there are still things you may not know about Kagan. Here are a dozen:

1. Some liberals may not like her record on abortion: The Associated Press reported last night that documents show that in 1997 Kagan pushed - as an adviser to the Clinton administration - for a ban on late-term abortions of viable fetuses, a measure that Clinton himself supported but that was opposed by abortion-rights advocates and did not become law. Still, abortion remains a kind of third rail for high-court nominees, so her actions in that case will draw intense scrutiny.

2. Some conservatives don't like it that Kagan didn't get her driver's license until her late 20s: Seriously! Conservative Ed Whelan, writing at the National Review Online, complained that the fact that the native of Manhattan's Upper West Side (where cars are highly impractical) didn't get her license for more than 10 years after becoming eligible "nicely captures Elena Kagan's remoteness from the lives of most Americans."

3. She is already giving Sen. Arlen Specter a giant headache! Back in February 2009, when the Pennsylvania senator was a Republican and gravely concerned about proving his bona fides to that party's right-wing primary voters, he joined 31 GOP colleagues in voting against Kagan as solicitor general in charge of arguing cases for the Obama administration before the Supreme Court.

Now, not only is Specter a Democrat, but he's in serious danger of getting ousted on his left flank by Rep. Joe Sestak, of Delaware County - and his anti-Obama vote suddenly looms large. Specter said in a statement yesterday that while he opposed Kagan last year for not giving detailed answers - in his opinion - to the Senate Judiciary Committee, he has an open mind about her new nomination.

4. She knows Eliot Spitzer. It turns out that while Kagan was running the editorial board of The Daily Princetonian at the start of the 1980s, the future disgraced New York governor was student-body president on the New Jersey campus. But Kagan was busy writing mostly liberal editorials that - among other things - denounced then-President Jimmy Carter's restoring of draft registration as a return to militarism.

5. America, where anyone can become a Supreme Court justice . . . so long as you are not a Protestant and you went to Harvard or Yale law school. If you're keeping score, Kagan's confirmation would mean six Roman Catholics and three Jews (Kagan is Jewish) on the high court, but no Protestants - the religious bent of every president except Catholic John F. Kennedy. (Stevens was the lone Protestant on the bench.)

She also would be the fourth woman justice, after the retired Sandra Day O'Connor and current black-robe wearers Ruth Bader Ginsburg and Sonia Sotomayor.

6. Is slavery suddenly an issue again? Conservative leaders such as Rush Limbaugh launched another bizarre attack angle when they blasted a paper that Kagan wrote in praise of the late Justice Thurgood Marshall - for whom she had once clerked - and a famous speech in which the first black justice on the Supreme Court said that the founding of the American government was "defective." Of course, the defects Marshall was talking about were slavery, and the fact that women could not vote.

7. Some liberals don't like the Kagan nomination, period. The left is not rallying unanimously behind Obama and his choice, as evidenced by this quote from the popular progressive blog Firedoglake: "Elena Kagan would be the most unqualified nominee in the history of the Supreme Court; she makes Harriet Miers look like William O. Douglas."

What don't liberals like? Many are angry that Obama has not done more to roll back what is seen as sweeping presidential powers grabbed by George W. Bush and Dick Cheney - and Kagan, as solicitor general, has already argued for keeping in place some of the powers on matters like state secrets.

8. Expect too much chatter about Kagan's personal life. Long before the nomination was announced, there was a blow-up between the Obama administration and CBS News in which a conservative blogger on its Web site claimed that the unmarried Kagan is gay. The White House not only blasted the article, but an anonymous aide told CBS that she is not gay.

Whatever - either way, in an unfiltered world of blogs and other news sources, there will certainly be more talk, and perhaps controversy, over all of this. It's arguably much more relevant to combatants on gay-rights issues that Kagan once said that there is no constitutional right to same-sex marriage.

9. She may have to recuse herself from a lot of cases. That's because as solicitor general she's already staked out positions on a number of cases that could now be decided by the Supreme Court over the next year or two. That's what happened the last time that a solicitor general - Marshall, who was picked by Lyndon Johnson in 1967 - joined the high court.

10. She's not a judge. Kagan's resumé - first female dean of Harvard Law School, followed by her ascension to the solicitor general post - is impressive. But she's also the first nominee with no judicial experience since 1972, when William Rehnquist and Lewis Powell were tapped.

Kagan supporters note that the list of prominent Supremes with no prior judicial experience includes past revered justices like Louis Brandeis and Felix Frankfurter. Critics note that the last nominee without such experience was Harriet Miers.

11. She's no angel, either. Kagan was a dynamic student leader at Hunter College High School, in midtown Manhattan, but she was also known as a voracious young cigarette smoker. She did eventually kick the habit, but she also confessed as a college journalist that she had "fleeced" her dorm pals in a poker game on at least one occasion.

12. She also knows . . . Barack Obama. If you're seeking proof that all roads lead through Chicago in the current administration, look no further than Kagan, who taught for a while at the University of Chicago Law School before her move to Harvard. After winning tenure in Chicago she lobbied Obama - who was a part-time law professor at the school - to join her on the faculty, but he chose politics instead.

The rest is history.