So, there isn't really a good way to write a post on your blog about the Supreme Court this week without at least sort of mentioning Elena Kagan. (Believe me, I've been sitting here for an hour trying to come up with something shocking and interesting about the fact that 42 U.S.C. § 233(a) now officially makes the Federal Tort Claims Act the exclusive remedy for claims arising from medical care and related functions provided by Public Health Service personnel, thus barring Bivens actions. I have this vague feeling that Kagan is edging this breaking news off the tabloid covers. Weird.)
In the spirit of playing into the hype, letttt's gossip. No, not about that. Andrew Sullivan already went there. We've still got issues that are slightly less likely to get me flamed left, fortunately, so here's the off-of-the-Princess's-head list of reasons of why we could label Kagan as a terrible nominee.
1. She's Jewish. How unrepresentative of her. This would also result in a Court that is composed of 3 Jews and 6 Catholics (Hi Roe v. Wade!). No Protestants, in our 51% Protestant nation.
2. She's too liberal.
3. She's too conservative.
4. She's never been a judge. People like this have such bad track records. Like that loose cannon William Rehnquist. God.
5. She went to Yale. In a slightly more elitist-Ivy-League-style rehashing of Problem #1, this would mean that actually the entire Court went to Harvard or Yale Law Schools. (I hear there's some kind of Ivory Tower criticism around this. Not familiar with the subject or anything.)
I'm really going to officially not care, because I'm going to favor some controversial criteria for a Justice: STATS. Proof of raw brainpower. This is the uber-nerd job. This is where your charisma and your politics and your daddy's Skull and Bones connections do not count. This is ability to weigh Serious Issues.
And she's got it. Summa from Princeton, Magna from HLS, Law Review on grades, and she clerked for freaking Thurgood Marshall. I'm good with that. Kagan is the opposite of Obama's Harriet Miers.
What do you all think are important criteria to consider about potential Justices?
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Thanks for this post -- which both educated and entertained me on the topic of nominee Kagan. I have been too busy (I am ashamed to say) worrying about the fate of my Cavaliers and so have not been doing any serious thinking about this very important moment in our judicial history. I think this moment DOES count, given the conservatism of the current court. And so I suppose that determining Kagan's politics on the spectrum of liberal/conservative does matter to me, to some degree. More telling is her defense of her positions -- the WHY rather than the WHAT of her thinking. So I need to learn more about that.
ReplyDeleteAs to our Ivy-League-heavy court: do you think that if Obama nominated someone from outside the Ivy loop, people would challenge that nominee's bona fides? Just a question that I haven't really considered before.
Nice post. Thanks for getting me thinking.
I was so excited for this nomination! Kagan seems to be awesome -- I am sure she will be bringing a new perspective in the court. Perhaps I support her for the "wrong," reasons, but just the fact that she doesn't have a judicial record, i.e. she has never written a majority, concurring, or opinions of dissent, makes me support her.
ReplyDeleteI am writing a judicial politics paper with my professor, and we actually found that after all (statistically speaking) the nominees' judicial record does not necessarily have an effect in their senatorial confirmation.
Let's hope she gets confirmed. Considering that as a solicitor - general she was confirmed through a bi-partisan vote, we expect a likely outcome for he candidacy as the U.S.'s next Supreme Court Justice.
I find the question of where our SC justices come from educationally to be particularly interesting. Of course, we want them to be knowledgeable and bright -- the best of the best. We want them to understand the law and be prepared to apply it fairly.
ReplyDeleteBut surely these knowledgeable, bright people are not solely to be found in the Ivies. I find it particularly hard to believe that ALL such potential justice are to be found only in two of the nation's over 4000 institutions of higher learning.
Plus -- as mentioned in this post -- is it really desirable to have only Ivy Leaguers on the bench? What sorts of attitudes and perspectives are we excluding when we draw from such a small, “elitist” (to quote the Princess) group? And why would it be that the nation focuses so intently on our Supreme Court Justices’ racial and gender diversity, but not on educational diversity? Strange…