TODAY   |  May 10, 2010

Obama could face pushback with Kagan nod

As NBC’s Savannah Guthrie says, the fact that Elena Kagan has never been a judge could be an issue in her appointment to the Supreme Court.

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This content comes from a Full-Text Transcript of the program.

MEREDITH VIEIRA, co-host: Pete Williams , thank you very much . NBC 's White House correspondent Savannah Guthrie is at the White House with more on the president's pick. Savannah, good morning to you.

SAVANNAH GUTHRIE reporting: Good morning, Meredith .

VIEIRA: As Pete just mentioned, Savannah , this is the second time that the president has considered Elena Kagan for the high court . Why did he go with her this time?

GUTHRIE: Well, as you know, this is somebody he's known her for many, many years, and he's had a chance to know her even better this last year with her work as solicitor general . As you mentioned, she was interviewed the last time around. Ultimately it was Sonia Sotomayor that got the nod. That was the president's chance to make history, the first Hispanic woman named to the court , so it was less a case where they didn't like Kagan , but that Sotomayor came in and had such a good interview with the president.

GUTHRIE: Kagan , of course , was interviewed by the president this time around. He called her last night to inform her. He also called the other three finalists to let them know of his decision . And they're really framing her this morning as a trailblazer; somebody who was the first female dean of the Harvard Law School , also the first female solicitor general . And though she has no prior judging experience , they say even her most fierce detractors don't doubt her intellect.

VIEIRA: Yeah. Let's talk about the confirmation process . What kind of push back from Republicans is the White House anticipating?

GUTHRIE: You know, I think they recognize the political climate. They don't think she'll have a problem ultimately being confirmed, but there will be issues that will come to the fore. One of them is the one Pete mentioned in his piece, her decision to ban military recruiters or to continue a policy of banning military recruiters . Ultimately, she did reverse that based on a Supreme Court decision . So that's likely to come up. I think there will be issues of her judicial experience . She is, after all, a judicial novice. Frankly, she rose to the solicitor general 's position, the person that represents the United States before the Supreme Court , having never argued a case before the Supreme Court . So she'll be certainly used to those questions. She was confirmed by a vote of 61-to-31, I believe it was, back when she was confirmed to be solicitor general . She may get a few more votes this time. But we're not going to see probably those overwhelming majorities that Supreme Court justices used to enjoy.

VIEIRA: All right, Savannah Guthrie , thank you very much .