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UPDATE 1-Obama to nominate Kagan for U.S. Supreme Court

By Caren Bohan and Steve Holland WASHINGTON, May 10 (Reuters) - President Barack Obama was poised on Monday to nominate Solicitor General Elena Kagan for the U.S. Supreme Court, choosing a moderate who may not spur a damaging political fight in a congressional election year. Democratic sources familiar with the president's thinking said he had decided on the 50-year-old former Harvard Law School dean for the seat on the court. The job is a lifetime position and requires confirmation by the U.S.

Senate. Experts said Kagan could be expected to pass fairly smoothly through the Senate confirmation process, which can be fraught with political peril. Kagan has been through one Senate confirmation already -- she was confirmed last year for her current position. An announcement is planned for 10 a.m. (1400 GMT) at the White House. The White House said Obama, Vice President Joe Biden and Kagan will be at the event. If confirmed, Kagan would replace retiring Justice John Paul Stevens, a leading liberal voice on the court. Like Stevens, Kagan in most cases probably would join the three other liberal justices on the court, which for years has been controlled by a five-member conservative majority. It will be Obama's second selection to the Supreme Court. Last year, he nominated Sonia Sotomayor and she was confirmed by a 68-31 Senate vote last August. Sotomayor became the first Hispanic to serve on the court. If confirmed, Kagan would become the fourth woman ever to serve on the Supreme Court and this would become the first time that three women are serving on the court at the same time. Sotomayor and Ruth Bader Ginsburg are among the current nine justices. "With his second Supreme Court pick -- and, to be clear, he will almost certainly have more -- the president is on the way to having had more influence over the court than any president since Reagan, and perhaps even Roosevelt," said Rick Garnett a law professor at University of Notre Dame. The closely divided high court decides contentious social issues such as abortion and the death penalty and high-stakes business disputes. As solicitor general, Kagan's job is to represent the U.S. government in cases before the Supreme Court. In that role, she has had a mixed record in business cases. She supported shareholders in a case about excessive mutual fund fees and backed investors in their securities fraud lawsuit against Merck & Co Inc over its withdrawn Vioxx pain drug. But she opposed foreign investors who want to sue in U.S. courts for transnational securities dealings. VIGOROUS QUESTIONING LIKELY Kagan could face vigorous questioning by Republicans on hot-button issues like her opposition to on-campus military recruiting at Harvard because of U.S.

policy barring gays from serving openly in the armed forces. "The Senate needs to explore carefully whether Kagan would indulge her own values and policy preferences as a justice," said Ed Whelan, a former law clerk for conservative Supreme Court Justice Antonin Scalia and former counsel to the Senate Judiciary Committee. Obama interviewed at least four people for the vacancy, including federal appeals court judges Diane Wood, Merrick Garland and Sidney Thomas. Kagan was considered one of the more moderate choices on Obama's short list of potential court nominees. As a non-judge, Kagan would break with recent tradition if she joins the high court. Although past presidents' nominees have included politicians and others with non-judicial experience, presidents in recent decades have looked to the federal bench. The last two justices who had not been judges, William Rehnquist and Lewis Powell, joined the Supreme Court in 1972. Kagan served in the White House of President Bill Clinton, who nominated her for an appeals court seat, but she was never confirmed. Administration officials are eager to avoid a bitter battle over the court pick before congressional elections in November, where Obama's fellow Democrats will be fighting to keep their strong majorities in Congress. In March 2009, Kagan was confirmed as U.S. solicitor general by a divided Senate, 61-31. All the "no" votes were cast by Republicans, including Senator Arlen Specter, who has since switched parties to become a Democrat. Republican Senator Orrin Hatch voted to confirm Kagan for solicitor general, but has said he would reserve judgment on her possible Supreme Court nomination. (Writing by Caren Bohan and Steve Holland; Additional reporting by Patricia Zengerle, Jim Vicini, Thomas Ferraro and Ross Colvin; Editing by Will Dunham) ((For a fact box on the nominee, click on, for a fact box on the issues she may face on the court click on and for a profile of Kagan click on )) Keywords: USA COURT/ (steve.a.holland@thomsonreuters.com; 202-898-8300; Reuters Messaging: steve.holland.reuters.com@reuters.net; www.twitter.com/steveholland1) COPYRIGHT Copyright Thomson Reuters 2010. All rights reserved.

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