It didn’t take long. Not surprisingly, even before President Obama had finished announcing his choice of Elena Kagan to fill the Supreme Court vacancy left by the retirement of Justice John Paul Stevens, controversy began to surge around his nominee.
In the course of her career, Kagan was the first woman to serve as Dean of the Harvard Law School and the first woman to be U.S. Solicitor General. Her confirmation would, for the first time in the Court’s history, bring the number of female justices to three. She would also be the first justice in 39 years not to have previously been a judge.
The consensus among media commentators is that Kagan rose to the top of Obama’s short list of brilliant legal minds because, alone among them, she hadn’t left the paper trail that a judge’s opinions create. Unlike Judge Diane Wood, the favorite of progressives, Kagan’s position on abortion and other controversial issues is not a matter of public record. She’s published relatively few scholarly articles and has been very circumspect about revealing her opinions. The thinking is that the administration prefers not to become embroiled in contentious confirmation hearings, and that the paucity of information about Kagan would make her more easily confirmable.
Yet critics from both the right and the left are assailing Obama’s choice. Sen. Jeff Sessions (R-AL) decried “Ms. Kagan’s lack of judicial experience,” even though five years ago during the confirmation hearings for Bush Supreme Court nominee Harriet Miers, Sessions affirmed that “It is not necessary that [Miers] have previous experience as a judge in order to serve on the Supreme Court.”
Begrudgingly acknowledging some of her accomplishments, Sen. John Cornyn (R-TX) said Kagan is “someone who has obviously a stellar academic background, but someone with no real-world experience and someone with no judicial experience.” Damned if you do, and damned if you don’t.
Sen. Minority Leader Mitch McConnell (R-KY) sneered, “The American people instinctively know that a lifetime position on the Supreme Court does not lend itself to on-the-job training,” ignoring the fact that at least 40 of the 111 Supreme Court justices to date had never sat on a bench before their confirmation. Some of the most outstanding justices (Marshall, Warren, Brandeis, Frankfurter, and Rehnquist, for instance) are in this group. And one of the most significant decisions in American history, Brown v. Board of Education, which formed the basis for ending segregation, was decided by a Court composed exclusively of justices who had never been judges.
On the other side of the ideological divide, Salon blogger Glenn Greenwald fears that Kagan would move the Court to the right. He questions her commitment to diversity, based on the 43 new hires she made for the Harvard Law faculty, most of whom were white men. (Four were minorities and nine were women.) Greenwald, like Kagan’s opposition on the right, is deeply suspicious of her, nailing her as “a blank slate, institution-loyal, seemingly principle-free careerist who spent the last 15 months as the Obama administration’s lawyer vigorously defending every one of his assertions of extremely broad executive authority.”
Kagan’s public record may slight, but it is available. Greenwald has admitted that he didn’t know about a letter Kagan co-signed in 2005, which denounced a proposal of Sen. Lindsey Graham (R-SC) that would have deprived persons charged with terrorism of the right of habeus corpus, a provision of the Military Commissions Act that was eventually nullified by the Supreme Court.
The most contentious aspect of Kagan’s record is her passionate opposition to the military’s Don’t Ask, Don’t Tell policy and her consequent decision not to give military recruiters free rein on the Harvard campus. Some charge that this decision indicates Kagan’s anti-military bias, yet she also hosted dinners for veterans at the university. Since both Secretary of Defense Robert Gates and Admiral Mike Mullen testified last February to their commitment to ending DADT, the whole argument seems rather irrelevant to me.
Kagan is known to be a consensus-builder, someone with a great capacity for listening to both sides, like the president who’s appointed her. Part of her program for transforming the Harvard Law School was to expand its aging faculty, which she did by hiring several distinguished conservatives in addition to liberals. In the Clinton administration Kagan was the lead negotiator on a bill that was to give the FDA power to regulate the tobacco industry. Working with the bill’s author, John McCain (R-AZ), she also succeeded in enlisting the support of Bill Frist (R-TN), both important Republicans. If confirmed, Kagan will be replacing the justice who is credited with having crafted arguments and negotiations in a way to win over the swing vote to form a majority. Justice Stevens played this role, a crucial one for the progressive minority.
Sexist attacks were leveled at Justice Sonia Sotomayor, and Kagan is in for more of the same. It isn’t necessary “to go too deep in analyzing the babe,” decreed Rush Limbaugh, following rapidly on Obama’s announcement. “I guess she can change her mind,” he said. “She’s a woman.”
There are persistent rumors that Kagan, who never married, is gay—as though it’s not possible that a woman might choose career over marriage. Or maybe she is gay. Does it really matter? Today? In the 21st century? The American Family Association thinks it does. They believe “no lesbian is qualified to sit on the Supreme Court.” They fear her affirmative vote legitimizing gay marriage in the event the Court decides to take such a case, which seems likely. On the other hand, gay blogger Andrew Sullivan believes that asking Kagan about her sexuality is not “illegitimate,” as he put it, “and it is cowardly not to tell.”
Unfortunately, as a nation we have become extremely polarized. Only a few decades ago, the Senate advised and mostly consented to the president’s nominees. The privilege of appointing justices who reflected the president’s political philosophy was freely granted. The opposition knew its turn would come in the next election cycle or two. Today, outright hostility is the norm. Stay tuned for what could be a rocky ride. I can assure you it won’t be dull.
I really can’t explain why, but my eyes welled up as I watched Sonia Sotomayor take the Judicial Oath on Saturday to become the 111th Justice of the Supreme Court, the third woman and the first Hispanic to sit on that exalted bench. I cheered and applauded as she concluded, flanked by her brother and especially by her mother, the diminutive woman whose determination propelled her children out of the urban ghetto into university and the professions of medicine and law — and who held the Bible as her daughter joined the highest court in the land.
Was I so moved because I too am Hispanic, the child of a Cuban immigrant? Were my tears remembering the dreams of the ’60s, the feminist fights for goals the mainstream ridiculed? Was I awed by the indomitable power of a mother’s love? Or was it the evidence that the American dream still lives, despite the corruption and degradation of long-held ideals?
I suppose all play a part. But I think above all it was empathy — understanding and sharing the pride of achievement felt by mother and daughter, the reward for years of sacrifice and striving and deferral of momentary pleasures for the sake of future ones. Empathy is that quality so maligned by Sotomayor’s opponents: “America needs judges who are guided and controlled not by subjective empathy that they find inside themselves, but by objective law that they find outside themselves,” said Sen. Orrin Hatch (R-UT).
Hatch is one of the senators who has openly feared that Sotomayor might bring her experiences — as an outsider, an “other,” a poor kid from the projects, an Ivy Leaguer, a woman, anything but an Anglo male — to bear when she renders judgment in the highest court of the land.
“You will be free, as a United States Supreme Court justice, to basically do what you want, with no court reviewing those decisions,” Texas Senator John Cornyn told Sotomayor on the third day of her confirmation hearing. It’s not difficult to detect the fear that she will have power that he won’t be able to challenge, the ability to upset some aspect of the privilege he’s taken for granted all his life.
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Again and again, the senators appeared incapable of the kind of self-knowledge that Sotomayor demonstrated when she acknowledged that her gender and her Latina heritage might have an effect on her judging. They wouldn’t understand that a person who doesn’t acknowledge and confront his prejudices will be incapable of overcoming them. They didn’t seem to be able to accept the validity of a world view different from their own or, by implication, their inexorable march to demographic minority status.
Yet, despite all the railing against “empathy” and emphasis on the cold letter of the law, Cornyn seemed to be unaware of the irony in his remarks as he implied that the judge hadn’t shown any empathy when she rejected the firefighters’ claim (Ricci v. DeStefano) on the basis of precedent:
So you decided that … the city was justified in disregarding the exams, and thus denying these firefighters, many of whom suffered hardship in order to study and to prepare for these examinations, and were successful, only to see that hard work and effort disregarded and not even acknowledged in the court’s opinion.
In some ways, Senators Cornyn and Hatch, Sessions and the others are right to be alarmed and fearful that Sotomayor could change the court and influence its decisions. Every new justice alters the dynamic of the court. Thurgood Marshall, the first black justice, and the first women, Sandra Day O’Connor and Ruth Bader Ginsberg, have all — not just through their arguments, but by their mere presence — given their colleagues new optics through which to view the world. And now, thanks to Justice Sonia Sotomayor, the Court will have yet another.