On Monday, May 10, President Obama nominated Elena Kagan to replace retiring Associate Justice John Paul Stevens. Many see this selection as a prudent political move; as the sitting solicitor general, Kagan has already been vetted and confirmed by the current Senate. This means that President Obama will not have to expend much political capital in order to get his nominee approved.
There are those who are questioning, if not opposing, the selection of Kagan for a number of different reasons. President Obama called her a “trailblazing leader … ” and stated “Elena is widely regarded as one of the nation’s foremost legal minds …” Some believe that while former President George W. Bush was eroding constitutional protections, Kagan, this “trailblazing leader” was conspicuously silent.
Others question Kagan’s record of minority hiring while dean of Harvard University’s Law School. During her tenure, Dean Kagan hired 32 tenured and tenure-track academic faculty members. Of these, 25 were white men, six were white women and one was an Asian-American woman. During her six years in the position, there were no African-American or Latinos hired. Just 3 percent of her hires were nonwhite. It is important to note that, according to Harvard’s 2009 Annual Report, the entire Harvard faculty consists of 26 percent female, 3 percent African-American and 3 percent Latino.
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Others cite the fact that Kagan has no prior judicial experience. This is an important point until you consider that the last two persons with no judicial experience to serve on the Supreme Court were the former Chief Justice, William Rehnquist, and Associate Justice Lewis Powell. More importantly, 40 of the 111 men and women justices to serve on the court since 1789, or 36 percent, have served without prior judicial experience, including Earl Warren, Byron White, William O. Douglas, Harlan Fiske Stone, Robert Jackson, Joseph Story, Felix Frankfurter, Louis Brandeis, Thurgood Marshall (former solicitor general with whom Kagan clerked) and the justice synonymous with establishing judicial review, John Marshall.
I make these points not to contradict or invalidate the concerns of those who are raising them. They are valid concerns and issues that need to be addressed. But it is important to engage in this discussion and analysis with a clearer understanding of history.
A seat on the Supreme Court has evolved into one of the most important positions in our nation’s government. The framers of the Constitution expected the judiciary to be the weakest of the three “co-equal” branches of government. Alexander Hamilton wrote that in deciding cases the courts would have “merely judgment” and would exercise “neither force nor will.” Through the foresight of Justice John Marshall and the concept of judicial review, it has become “… emphatically the province and duty of the judicial department to say what the law is.” Therein, coupled with a life-time appointment, lays their power and independence.
Over the years, presidents have nominated and the Senate confirmed individuals with an expectation of ideological allegiance or judicial temperament that would serve or advance particular interests. History has shown that once an individual swears the oath, dons the robe and takes their seat a different perspective can emerge.
Justice John Paul Stevens was nominated by President Gerald Ford, a conservative Republican. Justice Stevens is considered to be on the liberal side of the court. Justice Hugo Black was a Southern Democrat from Alabama and former member of the Klu Klux Klan, who was nominated by President Roosevelt. His literal reading of the Bill of Rights and theory of incorporation often translated into support for strengthening civil rights and civil liberties. Justice David Souter was nominated by President George H. W. Bush, another conservative Republican. Justice Souter was considered by conservatives to be too liberal. Finally, Chief Justice Earl Warren, former conservative Republican governor of California, was nominated by conservative Republican President Dwight Eisenhower. The Warren Court overhauled doctrines involving racial segregation and the rights of criminal defendants. It gave us the Brown decision, our Miranda rights and the right to privacy upon which the conservative Burger court based the Roe v. Wade decision.
As Kagan goes through the Senate Judiciary proceedings and her qualifications and suitability to serve are discussed, it is important that this debate not take place in a patrician vacuum or echo chamber. To discuss her suitability to serve outside of the broader historical context of the court is shortsighted, intellectually dishonest and wrong.
Will Kagan become the next Stevens, Black, Souter or Warren? I do not know the answer to that question. At the time that those individuals were nominated and appointed, history had not made that determination. The jury was still out.