A case for Kagan

Despite concerns about precise nature of her legal views, Kagan adds a much needed female voice to the bench

By Andrew Thornton

Being a left-wing ideologue, I’ve been feeling a little snubbed by President Obama lately. I thought I was voting for a slightly older version of Greg Gabrellas, so imagine my shock at watching Obama be less the Marxist of Glenn Beck’s nightmares and more the typical center-left Democrat of my own. And since I can’t afford therapy, I have to work through this disappointment on my own, by making my expectations more realistic. Congressional Democrats won’t become vertebrates. The executive branch will continue to value national security over civil liberties. Arrested Development will not return to syndication. And Obama will not nominate William O. Douglas to serve on the Supreme Court.

Well, he will not knowingly nominate a jurist like Douglas: Solicitor General Elena Kagan may certainly prove as inspirational a defender of individual rights and the environment as Douglas was. The reason that some liberals like Glenn Greenwald are worried about Obama’s choice of Kagan is that we can’t predict her beliefs based on her five to ten scholarly publications while at the University of Chicago and Harvard law schools.

If Justice Sotomayor’s nomination is any indication, the Republicans will seize on one or two fragments from her entire record supposedly dispositive of her opinion on a controversial issue like abortion. They will use these fragments to claim she’s a liberal-gone-wild activist who will put her thumb on the scales of justice or bleed on the Constitution.

A few grumbles about “unknown quantity” notwithstanding, Kagan will probably be confirmed without great drama. And while I, like Greenwald and other liberals, would have preferred that Obama nominate someone whose liberal credentials were more proven, Kagan will offer immediate benefits for the Court regardless of her future jurisprudence.

Most importantly, she will only be the fourth woman to serve on the Court. Ronald Reagan nominated the first woman, Sandra Day O’Connor, Bill Clinton nominated Ruth Bader Ginsburg, and Obama nominated Sonia Sotomayor. As fellow writer Peter Ianakiev wrote in these pages last month, diversity in the courts should not be thought of as merely superficial: diversity of sex, race, class, and sexual orientation gives the Court a broader group of experiences from which to draw when considering the impact of laws and government policies—that is, if we dispense from the farce that judges merely “call balls and strikes.”

This is not to say that minority judges ought to favor minority plaintiffs and defendants because they share similar experiences, and it is certainly not to suggest that minority judges actually exhibit such preferences. Instead, I mean that because being a judge requires and benefits from participation in our society, and because no one can possibly experience all the facets of American life that will be presented before her in court, the courts, therefore, benefit when a larger cross section of American life is represented.

Even if some argue that these differences should play no role in Obama’s decision-making, and even if judges consciously ignore them, it seems impossible to claim that these differences are not created as we each lead our own lives. Abortion rights and restrictions mean something different to O’Connor, Ginsburg, Sotomayor, and Kagan. Despite even a complete lack of intention to visit an abortion clinic, I cannot believe that the abortion regime under which a woman lives has no effect on her view of government, democracy, and the law.

Similarly, a gay law student may or may not want his marriage to be recognized by the state, but his ability or disability to achieve that recognition will undoubtedly color his thinking on ideas like equal protection and, perhaps, individual rights more generally. (If something good must come from discriminatory laws, why not hope for increased humanity in the minds of the laws’ victims?)

Although a straight man experiences abortion and marriage laws differently than the women and gay men I posited, his own experience—we might say inexperience—does not prevent him from thinking intelligently about abortion or marriage rights. It would be wrong to object to his thinking merely on the basis of his own inexperience, for our democracy requires the free exchange of ideas, regardless of what we think of the speaker.

When a politician nominates a judge because she offers diversity, humanity, or has a “keen understanding of [the law’s] impact on people’s lives” as Obama has done, we needn’t be so quick to call foul. Kagan’s sex, banal though it may seem, has given her an undeniably different perspective from her future six male colleagues; hopefully, her perspective has also given her the humanity that Obama extols. And to those who say humanity has no place in the judge’s mind? Despite whatever magical aura the judge receives when sitting in court, she is first and foremost our fellow citizen. Since democracy depends on citizens’ humanity toward one another in the legislative hall, in the voting booth, and on the street corner, I can only argue that it belongs in the courtroom in one form or another, whether it is the product of a childhood in a Bronx housing project or a New Jersey suburb.

Andrew Thornton is a third-year in the College majoring in Philosophy.