Thursday, April 15, 2010

Supreme Court: Short List to Replace Stevens (Part 1: Elena Kagan)

[Again, just to be clear: No, I'm not there. Just keeping it in mind. And while I'm at it, Chile, Indonesia, New Orleans, and wherever there is suffering that demands assistance and reminding.]
Whoever is appointed to succeed Justice John Paul Stevens will not "replace" him in any true sense of the word. The new appointee will fill a seat on the Court following a vacancy created by Stevens' retirement. But, it will be a long time before the new appointee, regardless of who that might be, will have the wisdom and experience, both judicial and life, of Stevens.

That's a different question than the one we're dealing with in this post. We'll do a couple--maybe a few or even several--on the short list and then on whomever President Obama actually nominates. [Which also raises the timeless question of the precise difference between "few" and "several." Then, of course, there's the perhaps more temperamental cum rhetorical and semantical issue of when "several" becomes "many" or, alas, "too many." Now that's a debate we can all sink our teeth into.]

In any event, for this 1st post in an inevitable series on New York Court Watcher dealing with the short list to replace Stevens--i.e., my speculation + presumption + semi-informed supposition of whom Obama is really considering--we'll look at some women who are possibilities. Some of them were on the short list (or, what I figured was the short list) the last time to replace Justice David Souter.

Here is the first of them. She is considered the frontrunner by many. A brief description and a few political considerations follow.

Elena Kagan
She's the former (and first woman) Dean of Harvard Law. She was educated at Princeton, Oxford, and Harvard Law. She was as a law clerk to Justice Thurgood Marshall; she was a clerk at the U.S. Court of Appeals for D.C. Circuit before that. She was a professor at Chicago before working in the Clinton administration as an assistant White House Counsel. She is currently part of the Obama administration as Solicitor General--hence, she is responsible for representing the United States before the Supreme Court.
In short, one incredibly extraordinary resume. Very very hard to beat in terms of educational and career pedigree.

Political considerations:
She is a New Yorker and there are already 3 on the Court. (Scalia, Ginsburg and Sotomayor.) She is a Jew and there are already 2 on the Court (Ginsburg and Breyer). [Hey, some of us might not care. But don't forget, there are parts of the country that equate America and Christianity. As for me, I think of Brandeis, Cardozo and Frankfurter, the 1st 3 Jewish Justices, then I think of Ruth Bader Ginsburg currently on the Court, and I'd be thrilled with as many of that caliber and character as we can possibly get on the Court. But I also recall that President Hoover had objections to Cardozo because that extraordinary jurist was a New Yorker and a Jew, and the Court already had a representative of each. Fortunately for the nation, Hoover was ultimately embarrassed by Senators of his own Republican party to disregard those apparently negative factors and go ahead and nominate Cardozo.]
Related to the previous consideration: she is not Protestant. When Stevens is gone, there will be 6 Catholics, 2 Jews, no Protestants. That will be an enormous, if generally unstated, concern. Don't kid yourself. In some parts of the country, and among some parts of the electorate, all Catholics and Jews will not sit well.
She is not a White Man, and Obama is having political difficulties with white men. Picking another Northeastern liberal woman will not gain him any support among the white men who are upset that everyone else is getting special treatment but them.
Oh, and she's been very pro gay rights. You know, the radical, un-American notion that people who are gay in America should be treated equally. Again, tough to swallow in a large part of the country and with a large part of the electorate. And then there are the rumors--I have no idea and don't care if they're true--that she herself is a lesbian.

So, lots of strong pluses on the merits side. But some real minuses politically.

Next on New York Court Watcher, 2 other women who were on the last short last and almost certainly are on this one as well. And the reports in the press say they are: Diane Wood and Leah Sears.