In a terse, one-line announcement, President Barack Obama relented. "I submit a tandem nominee, Elena Kagan, for the Senate's consideration," the president said.
The move is unprecedented and may well sound the death knell for Darrow's chances for a seat on the high court. "The more customary course in our history is for the president to submit the name of one nominee at a time," said Carswell Bork, a professor of constitutional history at Yale University. "Although the Constitution does not prohibit the submission of two names at once, the president's decision to do so could well be taken by the Senate as a lack of confidence in Darrow."
"Nonsense," said a White House spokesman. "The president promised change. We are building new coalitions. We're happy to provide two names in tandem so that the nomination process does not get bogged down. But the president stands committed to placing a trial lawyer on the Supreme Court."
President Obama stunned observers last month by nominating the 42-year-old Darrow to fill the seat of retiring Justice John Paul Stevens. Darrow, a virtual unknown among the bar's elite, has worked as a personal injury lawyer and a public defender. He now practices in New Britain, Connecticut, where he represents indigent people accused of felonies.In announcing Darrow as a nominee to the high court, Obama noted that he was redeeming his promise of change. "Mr. Darrow has worked in the trenches. He is not a legal theoretician, but an experienced trial lawyer. His appointment signals my administration's commitment to pragmatic reform of the legal system."
Darrow's nomination was met by protest at the nation's elite law schools. "Who is Gerry Darrow?" became a theme of class boycotts at the institutions, whose graduates typically go on to assume legal clerkships for the nation's federal judges. Darrow graduated from the Thomas Cooley Law School in Lansing, Michigan.
Last week, federal law clerks staged a one-day work stoppage to protest the nomination of Darrow. "While accomplished as a trial lawyer, Mr. Darrow has no apparent appreciation of the law's deeper structure or its ideals," a manifesto delivered to the Federal Judicial Center read. The clerks demanded that the president nominate one of their own to the high court.
The nomination of Kagan, the current Solicitor General and a former dean of the Harvard Law School, appears to be a response to the backlash against Darrow.
"Kudos on Kagan," a headline announced at the Yale Daily News. The endorsement was surprising, as Kagan is a Harvard Law School graduate, and the rivalry between Yale and Harvard for top spots in the law is often intense.
"Practice conceived isn't theory relieved," responded one White House staffer. "We're trying to eliminate gap between theory and practice on the Court. Darrow does that. Kagan is just another bridge to nowhere."
"Well, I suppose there's no harm in tossing Kagan's hat into the ring," Darrow said. "But I don't recall her ever appearing in court to argue on behalf of some ordinary person getting screwed to the wall by a corporation or a government. She's a power lawyer, not a people's lawyer. Haven't we had enough vanilla on the court?"Kagan appears on behalf of the United States Government before the Supreme Court, but is not known to have appeared in other courts on behalf of non-institutionalized clients. "Brilliance isn't enough," read the headline of the lead editorial in The Detroit Free Press today. "Ms. Kagan does not represent diversity," the paper said. "She's just another brand of vanilla on a court distressingly homogenous and detached from the concerns of Americans who face each day without the an ivy laurel perched on their brow." The Free Press called on the Senate to confirm Darrow.
Senator Patrick Leahy, D-VT, the chairman of the Senate Judiciary Committee, promised that both candidates would be fairly vetted. "I suspect that Kagan is the safe choice," Leahy said. "But I am not sure what the American people want is safety. Most folks feel the current court views the government as too big to fail. The people want a fighter on the court. Someone who realizes that government can and should fail if it cannot meet the needs of ordinary folks."
Jeff Sessions, R-Ala., the ranking minority member of the committee appeared puzzled. "Two candidates instead of one? This is unprecedented. The most important question on my mind today is whether this what the founders intended. I'll be reading my Constitution extra carefully in the weeks to come."
For a complete history of Darrow's nomination to the Supreme Court, click here.