EDITORIAL: A Judicious Choice


There have been few nominees for the United States Supreme Court more credentialed and impressive than Elena Kagan:

•Current Solicitor General of the United States, who has argued several key cases before the High Court

• Dean of the Harvard Law School for six years, the first woman to hold that prestigious post

• A distinguished academic record as a professor at the University of Chicago Law School


• Clerk for U.S. Supreme Court Associate Justice Thurgood Marshall and U.S. Court of Appeals for the District of Columbia Circuit Abner Mikva.

Moreover, Kagan is known for her intellect, temperament and proven track record as a conciliator among liberal, conservative and centrist colleagues.

If confirmed by the Senate, Kagan would be both the third woman (joining Associate Justices Ruth Bader Ginsberg and Sonia Sotomayor) and third Jewish justice (Ginsberg and Associate Justice Stephen Breyer being the other two) to serve on the present Court.

The resulting bench would comprise six Roman Catholics and three Jews, a combination which even in recent history would have been inconceivable. When President Woodrow Wilson first nominated Louis Dembitz Brandeis to the Supreme Court, the distinguished and highly respected U.S. legal giant was denounced on the Senate floor for being a member of an “Oriental race” (in other words, he was Jewish), who would be ill-suited to serve on an “Occidental” court!

After a contentious battle on the Senate floor, Brandeis became the first Jew to serve on the U.S. Supreme Court. For years thereafter, there was an unofficial belief that Brandeis started the tradition of a “Jewish seat” on the court. He was followed by Benjamin Cardozo, Felix Frankfurter, Arthur Goldberg, Abe Fortas, Ginsberg and Breyer.

In truth, there should NOT be a “Jewish” seat or seats, or seats for whites, blacks, Hispanics, men or women. For one thing, if every diversity characteristic were accommodated, weTd need dozens of Supreme Court slots! But seriously, persons should be nominated on the basis of their proven abilities and competence to serve. In those areas, there can be no reasonable doubt that Kagan is eminently qualified.

The early critiques of Kagan seem tepid at best. Some have pointed out that Kagan has not previously served as a judge. Yet both Democratic and Republican presidents have nominated justices who had no previous judicial experience, including Earl Warren and William Rehnquist, among others.

Some critics on the right assail Kagan for having barred military recruiters at Harvard Law School from using campus facilities in protest of the militaryds “don’t ask, don’t tell” policy regarding gays and lesbians. (She later reversed her stance to comply with a unanimous Supreme Court ruling that schools receiving federal grants could not “prohibit or in effect prevent” military recruiting on campus.) Critics on the far left are unhappy that Kagan has gone out of her way to build positive relations with more conservative colleagues both at the law school and in her professional life, once having held a dinner for conservative Justice Antonin Scalia.

These critiques from both sides are indicative of Kagan’s equanimity. Sure, almost any Supreme Court appointment will tilt one way or another based on the worldview of the president in office at the time. But there is no indication that Kaganss views are aligned with any drastically left or right contingents.

Then there are the rather offensive suggestions by some Kagan detractors about her ethnicity, faith and sexual preference. Pat Buchanan, who can be counted on to offer the most loathsome perspective, implied that having three Jews on the high court is simply too many (“Is this the Democrats’ idea of diversity?” he stated in a recent column.) And to those spreading rumors about Kagan being a lesbian, our response is, “Who cares?” If she addresses legal issues before the Court with intellectual honesty and rigor, and hasn’t been shown to exercise undue bias, whom she chooses as her romantic partners is well beyond our scope of interest.

We will of course be amazed and proud if there are three Jewish members of the U.S. Supreme Court serving at the same time. But as Americans, we will also be proud that an obviously brilliant, mainstream and highly qualified person will be taking on the awesome burdens of serving on the United States Supreme Court. Absent any radical or overtly biased perspectives offered during confirmation hearings, we support her nomination, and urge our two U.S. Senators, Kit Bond and Claire McCaskill, to vote in favor of confirmation.