Supreme Court Watch: Here Come The Judge(ments)

Jodi Jacobson

The sun has not yet set on the first day of Elena Kagan's nomination to the Supreme Court and already the sexist language, inferences, and other forms of irrelevant judgment have started to circulate, coming from both the ultra-right in the Republican party, anti-women's rights/anti-gay rights advocacy groups, and the mainstream media.

The sun has not yet set on the first day of Elena Kagan’s nomination to the Supreme Court and already the sexist language, inferences, and other forms of irrelevant judgment have started to circulate, coming from both the ultra-right in the Republican party, anti-women’s rights/anti-gay rights advocacy groups, and the mainstream media.  These groups seem determined to ensure that whatever her merits based on actual judicial temperment, capability, views, and intellect will be drowned out by innuendo and speculation.

Let’s start with the media and the issue of “experience.” A page A5 article in today’s Washington Post carries the headline: “High court nominee never let lack of experience hold her back.”


No matter what else you can say about her, Kagan is, as I noted earlier today a woman of stellar qualifications, a contender as a judge no matter how you slice it. She has degrees from Princeton, Harvard, and Oxford.  She’s worked in the Senate, the White House (two administrations), and as a clerk for the esteemed Supreme Court Justice Thurgood Marshall.  She was dean of Harvard Law School. She might have been an appeals court judge but for a Republican-led Senate that refused to bring her nomination to the floor for that “up or down” vote they are always seeking.

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None of this means she shares my own or your views on anything per se.  It just means she is qualified for many things, at least on paper. 

But that doesn’t stop lots of innuendo and speculation about Kagan’s “experience,” a meme already developed by Republican Senators looking for a reason on which to obstruct Obama’s nominations.

Today, Senator John Kyl (R-AZ), stated:

There are two key things that all lead to a central point. The first is the relative lack of experience. And I’m not suggesting that anyone has to have been a judge to serve as a justice — though that is a good experiential basis for it. But her experience is pretty thin, practicing law only for a couple of years for example.

Indeed this is a theme embedded in the Post article, which is primarily based on the premise that even though she was not a judge, Kagan didn’t let not having been a judge hold her back from being nominated as a judge. (I don’t get it either).

Was John Roberts or anyone else for that matter born with a gavel in his hand? Moreover, is there something I am missing in the transition from not playing a specific role to playing that role for the first time? How exactly, for example, could Kagan’s nomination to be an appeals court judge be seen as “not letting a lack of experience hold her back,” if that were her first nomination to any court.  And hold her back from what? Other people’s admiration for her other experience and skills?  At some point, she’d never been dean of a law school, yet somehow Harvard decided she was up to the job.

While it is true that most nominees to the Supreme Court in the past four presidencies have previously served as judges, we are talking about a relatively small group of people for a very few slots.  Richard Nixon nominated two men with no prior judicial experience–William Rehnquist and Lewis Powell. Was their experience questioned the same way?

Even the Post article, based on the lame premise heretofore described, notes that despite her lack of judicial experience she “has appeared on every list of people a Democratic president should consider for the high court.” 

Theme two? She may be gay.

My first inclination is to say “who cares?” and “what difference does it make?” I care less about her sexual identity than her positions on women’s rights and glbt rights in all their dimensions, including the ability of all persons to exercise their basic human rights.  I don’t really care if she is gay or she is not. To paraphrase Congressman Barney Frank (D-MA), “a public official’s (own) sexuality is my business only if they make mine theirs.”

But of course the far right in their obsession with sex has made everyone’s sexuality their business.  The American Family Association stated today:

It’s time we got over the myth that what a public servant does in his private life is of no consequence. We cannot afford to have another sexually abnormal individual in a position of important civic responsibility, especially when that individual could become one of nine votes in an out of control oligarchy that constantly usurps constitutional prerogatives to unethically and illegally legislate for 300 million Americans.

The stakes are too high. Social conservatives must rise up as one and say no lesbian is qualified to sit on the Supreme Court. Will they?

Not qualified or too scary?  With issues like Don’t Ask, Don’t Tell and gay marriage on the political front burner, the right fears a “gay sympathizer” on the court, never mind that personal sexuality identity is not the sole determining factor of the support of freedom of all people to be who they are, free of discrimination and stigma.

And, as Suzy Khimm writes at Mother Jones:

[T]here’s another issue coming down the pipeline that could also bring gay rights to the front burner this summer. The Employee Non-Discrimination Act—which would prohibit employers from discriminating on the basis of sexuality or gender identity—is currently before the House Education and Labor committee. Written by Rep. Barney Frank (D-Mass.), ENDA already has 202 co-sponsors, prompting gay rights advocates to push for a vote in the House as early as this month. The momentum behind the legislation has prompted anti-gay activists to slam the bill as “the Cross-dresser Protection Act,” as the Family Research Council calls it. The Traditional Values Coalition has urged a newly formed group of the House’s most conservative Republicans to take up the issue. And The Washington Times has already editorialized against the bill for subjecting “kids to weirdos,” arguing that it would make it impossible for parents remove their children from the classrooms of “she-male” teachers.

Nevertheless, writes Khimm:

It’s unclear whether House Speaker Nancy Pelosi will bring ENDA to the House floor this summer, for fear of putting endangered Democrats before another politically contentious vote just months before the midterm elections. Meanwhile, any movement on the bill could prompt anti-gay conservatives to use ENDA, along with the Kagan nomination, as evidence that Obama’s Washington is advancing a radical, pro-gay, left-wing agenda.

Yep, that radical agenda.  The one that left women with fewer reproductive rights after health reform than they had going in. In fact, the real question according to some observers may be whether and how the White House handles this issue.

All of this, writes Pam Spaulding on Pam’s House Blend is:

“about scare and demonize; we knew this kind of BS would come from the right. I say the more meaningful thing to watch out for are  the reactions by the Obama admin, the Hill and the media.”

The Administration did so poorly on first standing up clearly for and then defending the right to choose whether and when to have a child during health reform (a right Obama unequivocally supported throughout his campaign) that I am not hopeful about their efforts to deal effectively with this one.

And then we have theme 3: Slavery and the Constitution.

Republican National Committee Chair Michael Steele criticized Kagan for an article she wrote in 1993 about Justice Thurgood Marshall.  The article detailed Marshall’s critiques of a constitution used to support slavery. Kagan wrote:

During the year that marked the bicentennial of the Constitution, Justice Marshall gave a characteristically candid speech. He declared that the Constitution, as originally drafted and conceived, was “defective”; only over the course of 200 years had the nation “attain[ed] the system of constitutional government, and its respect for… individual freedoms and human rights, we hold as fundamental today.”

In other words, Marshall believed that the Constitution was a force for good to the extent that it was seen for what it was “a living document” needing to focus on the ultimate promise of freedom for all, including freedom from slavery.

Greg Sargent, writing in the Post, says “That’s the basis for the RNC’s claim. As many have already pointed out, it turns out that Marshall was talking about slavery. Presumably the RNC agrees this was a defect that needed to be corrected.”

He further quotes more of what Kagan wrote in that original article:

For in Justice Marshall’s view, constitutional interpretation demanded, above all else, one thing from the courts: it demanded that the courts show a special solicitude for the despised and disadvantaged. It was the role of the courts, in interpreting the Constitution, to protect the people who went unprotected by every other organ of government — to safeguard the interests of people who had no other champion. The Court existed primarily to fulfill this mission.

“That seems like a pretty straightforward claim,” writes Seargent.

Kagan says Marshall believed the Constitution should safeguard the individual rights of those who have been failed by all other organs of government. That seems like Civics 101. Does the RNC really disagree with this?

Maybe so. But in the words of the American Family Association, will they “rise up as one and admit it? Will they?”

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Elena Kagan, Supreme Court

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