So, its official. President Obama has named former Harvard Law Dean and now-Solicitor-General Elena Kagan as his nominee to the Supreme Court. So let’s recap. She will be one of the youngest Justices, at just 50 years old – which means she’ll potentially be on the Court a very long time and will be Obama’s legacy on the Court. She’s a woman. She is possibly gay, though apparently the White House is so concerned about her being reported to be such that they stridently refuted those “false charges.” (Their overreaction sure instills confidence in the White House internal attitude towards gay people, huh?)
And from everything I’ve read since the vacancy was announced, it seems likely that Kagan’s confirmation will be fairly interesting, though – and has a strong potential for substantive debate in a way that Sonia Sotomayor’s wasn’t. Why? It’s pretty simple. This time around, it’s more of a chess game.
1. There’s very little she’s said on-record that they can nail her to the wall with. Who’s “they”? Oh, just the usual noisy contingent of holier-than-thou politicians and pundits who tend to yell loudest. They’re the ones who dig up “wise Latina woman” remarks, by doing Talmudic readings of people’s undergraduate theses, and lecture women of colour on racism on national television without second thoughts or later regrets. It makes for great television and gets your name in the papers, so there’s really no downside for the soundbite nitpicker brigade.
But Kagan has written surprisingly little for someone who’s held the position she has. I’ve read most of it, by now. Nothing leaps to mind as of particular concern to anyone but law nerds, and you can find a very thorough but easy-to-understand overview written here, by Paul Campos at the New Republic.
2. So everyone’s gonna be forced to ask her some real questions. The Administration seems to be banking on the idea that, with so many holes in Kagan’s record, everyone will fill in the blanks with their own preferred political positions. This is a double-edged sword, though, as it means you can also fill them with the horror scenario of your choice. NOW, the National Women’s Law Center and NARAL are already making rumblings about their concern about where she stands on “their issues.” Glenn Greenwald on Salon has been caterwauling about her position on national security for quite some time. One imagines conservatives are going to re-examine the basis on which they supported her for confirmation as Solicitor General, and looking to poke holes.
The nomination’s success is going to depend, therefore, on how much people trust Obama’s recommendation.
So let’s parse out what we know about that. When Obama gave his sales speech today, he noted that Kagan was “among the nation’s foremost legal minds.” That sounds great. What it means, when it comes out of the mouth of a former law professor, though, is that Obama admires Kagan’s ability to analyze facts and then organize a narrative into such a way as it supports a particular legal position. The progressive blogger digby writes that she’s heard that Obama and Kagan have very similar worldviews, and that she assumes this means Kagan will be a master of the “split-the-baby” position, but I’m not so sure. So much depends on how much of a commitment she has to the idea of precedent, and to her philosophy of constitutional interpretation. Folks, this is someone who clerked for Thurgood Marshall, and in fact wrote a nice recollection on him when he died in 1993 praising his commitment to civil rights. And let’s face it: Marshall was no slave to precedent. The man is one of the few Justices in the history of the court who had the balls to declare the death penalty unconstitutional in all circumstances. (Ha, the RNC sent out a press release about this exactly just as I was writing this post.) Similarly, when Obama lauds Kagan’s “openness to a broad array of viewpoints,” I think it’s wrong, in the context of a legal position, to read that as meaning she’ll ultimately end up on the so-called “conservative” side of many issues. What it means is that she will address counterarguments. It doesn’t mean she will be persuaded by them.
So while everybody’s getting on the skepticism bus about Kagan in the liberal blogosphere, I’m hedging my bets – for now, or at least until Kagan actually says something I just think goes to show that Obama’s affirmations are empty. Fundamentally, I don’t agree with the philosophy that a progressive judge has to have staked out a strong so-called “liberal” position before assuming office. One of the things that has always bothered me, for example, about the way liberals talk about the Supreme Court, is the inattention to a discussion about what makes a “good judge,” as opposed to what kinds of political positions are desirable therein. (Personally, this is why I thought the “wise Latina woman” remark was a huge plus for Sotomayor, because it forced the question.)
This is going to make me sound snotty, but, although I am at all times skeptical of lawyers’ claims about the sanctity of law, I do think there’s something to be said for advocating for the quality of deliberativeness and good reasoning in a progressive judge. Put differently, it’s continually my position that given the kind of coalition-building required on the court, it’s in our interest to always be picking the smartest person, most articulate person we can. When we try to rely, instead, on a checklist of issues to evaluate a judge’s standing, it seems to me that we betray our doubts about the rightness of our positions, about their ability to prevail in minds that really do take the law seriously. Sometimes it almost seems like we’re afraid of the law, and while I think it’s important to be skeptical of the state, the one bit of indoctrination that did manage to worm its way into my head in law school is that the law’s enormous potention for getting a society to “do the right thing” can’t be denied.
So, for me, I think a good judge trains their laser sights on an issue, sees all the dimensions, and then comes up with the best solution he or she can. I do think that when s/he does that, the result is rarely bad for women, or people of colour, or disabled people, because the quality of good judging necessarily means that the judge takes their experiences into account. Maybe it’s naive of me, I admit, maybe it means that I have too much faith in people. But I have to cling to it, because I still believe in the possibility of society doing good things together. And that possibility is what keeps me going, as a progressive person.
I think this means Obama and I almost one-hundred percent agree on something. I need to go lie down.
The fact that they (the WH) refer to comments about Kagan possibly not being heterosexual as “charges” makes ME want to lie down. You’re “charged” with murder or rape or kidnapping, and that turn of phrase as applied to someone’s sexual orientation really pisses me off. I’m sure that it’ll heat up as her stance(s) on military recruiters and DADT while at Harvard gets even more scrutiny. Fun times!
Funnily enough if you click through the story read the “offending” blog post, soalg, it’s pretty sanguine about her sexual orientation. Everyone kept saying this was such a weird thing for them to flip their shit about – on the left and on the right.
Noted and thank you! I was reading this closely but not clicking through (apparently to my detriment), as I try to save a bit of time while crazed with final papers. Anyway, this is much appreciated.
I am clearly not a lawyer, and while I read as much as I can, I still am not certain in my mind what the requirements for a good Supreme Court Justice would be. I really appreciate posts like this! However, I read this post: http://www.feministe.us/blog/archives/2010/04/30/the-racist-breeding-grounds-of-harvard-law-school/
over at Feministe a while ago, which means I had a sinking feeling in my stomach when I saw Kagan had been nominated. (Read down to the part where Kagan took part in a parody play which lampooned several woman students of color, and then declined to respond to requests for diversity sessions in the wake of the event.) This is of course anecdotal, but it was troubling to me. I’m interested in your opinion on this, Pilgrim Soul, if you have a chance to take a look at the article.
Nothing to add except to say that I really enjoyed this analysis, Psoul.
Odonata, I saw that article. I think the culture of Harvard Law School is what it is. I don’t find it surprising that the symbol of white male privilege in this country has diversity issues that are pretty serious. I think if we’re waiting for a nominee who doesn’t have some unexamined privilege but does have a legal education, we’re gonna be waiting a long time. Also, if you click through to the Greenwald piece, you’ll see some law professors of colour have also questioned Kagan’s record on diversity.
I think that Kagan’s actions were a mistake, of course. I don’t like that. What I am thinking about, however, is whether she can be persuaded to see how wrong they are, as opposed to whether she saw it at the time. I don’t now the answer to that question, of course. What I’m saying, though, is that it’s the question that actually matters to me.
I should have probably added in my post that I did not attend law school in this country, and that even in my own I attended one that is slightly idiosyncratic because it straddles legal systems. So to an extent, my belief in deliberativeness comes from a political culture that is somewhat different from this country’s. And which I have some natural, ingrained preference for.
Good post. BTW, though, digby’s a woman:
http://en.wikipedia.org/wiki/Digby_%28blogger%29
Thanks BDCB!
Well, she’s far from my first (or, you know, tenth) choice, but I’m happy she is young, and a woman, and a probable lesbian, and apparently quite clever and crafty.
@JD: I was having happy dreams about a surprise Pam Karlan nomination.
Thanks for this. I’ve been waiting to read what you had to say about Kagen. I’ve been up and down since hearing about this at a highway rest stop last night–yeah a girl! yea distaste for DADT! Boo racism! Boo regrettable stance on “terrorists”!
I was tending toward happy last night, but then today was getting more depressed (this should teach me to watch the news–one shot of the gulf coast and I feel like I’m going to be physically ill). I feel better knowing that you are cautiously optimistic, or at least not horrified.
Sidenote: I drove across several states with my father yesterday, and as we stopped for coffee and gas we saw that Kagen had been nominated. My father is a strict Republican–though he recently told me that in his “old age” he’s tending towards libertarianism (yea? he definitely told me that expecting me to be really pleased about it…). We were briefly talking about it, and he made some vaguely pro-republican not-anti-Kagen comment, and I was like, “The rumor is she’s a lesbian.” My father, in all seriousness, acted confused as to why that mattered–because he honestly believes that no Republicans would ever care about whether a Supreme Court Judge might be a lesbian. I was like, Are you fucking kidding me? Maybe not your kind of vaguely-don’t-care-about-gay-marriage libertarian-y republican, but if you haven’t noticed plenty of your fellow conservatives are rabid jesus freaks* who hate gay people.
He was like, “You’re crazy” and seriously looked at me like I had just said that Republicans want to cut military funding and invite some Iranian diplomats over to the white house for dinner. Like the concept that republicans are homophobic is a wild idea I got in my head that nobody, anywhere would even think, let alone agree with.
I mean, here’s hoping he’s right. But for real he is apparently a fucking idiot.
*Specifically jesus freaks as opposed to Christians, because honestly most of the really christian people I know are lesbians. Several of them are actually ministers or ministers-in-training. Go figure.
Pilgrim Soul, thank you for your response! I have several friends who share your optimism, and I’ve been struggling with my own kneejerk reactions. It’s very good to hear your viewpoints.
I have several friends who are attending law school in the U.S., and all of them share your absence of surprise at Harvard’s problems with diversity. I hope that this does become an issue that’s discussed, that this question is asked. (Though, sadly, with the state of discourse in the U.S. being what it is, I’ll be more surprised if it IS addressed than if it isn’t.)
Thank you again for your insights!
[...] being investigated. Pres. Obama to nominate Elena Kagan to the Supreme Court via Feministing and Initial Thoughts on Elena Kagan and What A Progressive Judge Looks Like via Harpyness. At the end of April, Diane Lucas wrote about racism in the Harvard Law School. Kagan [...]