So, it's Kagan
Many speculated that Obama nominate the successor to Justice Stevens tonight. They were right.
It will be current Solicitor General Elena Kagan. Those who feel the Court should have more women, or a greater presence from non-judges will likely be pleased. As will those who (like me) hope this rumor is true - the Court needs diversity here more than anywhere else. On the other hand, those who are concerned about the vitality of Roe v. Wade, or the non-vitality of Citizens United, may be less pleased. Of course, her doctrinal views on hot-button issues are speculative and not likely to emerge any time soon. I'm still trying to figure out Alito, much less Sotomayor or Kagan.
If you care to read more, Tom Goldstein's post at SCOTUSblog gives a particularly insightful rundown of how her nomination is likely to unfold, here. All in all I find this exciting - not exciting by non-law school standards, but hey: we are who we have become.
It will be current Solicitor General Elena Kagan. Those who feel the Court should have more women, or a greater presence from non-judges will likely be pleased. As will those who (like me) hope this rumor is true - the Court needs diversity here more than anywhere else. On the other hand, those who are concerned about the vitality of Roe v. Wade, or the non-vitality of Citizens United, may be less pleased. Of course, her doctrinal views on hot-button issues are speculative and not likely to emerge any time soon. I'm still trying to figure out Alito, much less Sotomayor or Kagan.
If you care to read more, Tom Goldstein's post at SCOTUSblog gives a particularly insightful rundown of how her nomination is likely to unfold, here. All in all I find this exciting - not exciting by non-law school standards, but hey: we are who we have become.
Labels: SCOTUS
posted by Patrick Bageant at 8:32 PM
21 Comments:
She seems to have a really expansive view of executive authority.
I absolutely do not rule out the possibility that lesbians are, on average, genetically predisposed to being better justices. Err, wait, maybe this person has it right:
"In a separate interview, Jean-Marie Navetta, spokeswoman from PFLAG — Parents, Families & Friends of Lesbians and Gays — accused people of trying to manufacture scandal out of thin air. 'People love taking part in rumors like this, whether they’re gay or not, because it implies that there’s some sort of scandal going on there. And the bottom line is, it doesn’t matter and it shouldn’t matter,' she said."
Indeed, it doesn't matter. Same goes for gender, religion, height, favorite color, etc. Oh, and it goes especially for the pigment in your skin, in case that particularly insignificant biological trait needs mentioning for the "diversity" crowd. Didn't someone once have a dream about all this?
It's pretty disingenuous to allude to King when harping against diversity appointments.
The Supreme Court should reflect the United States as a whole. There have only been three women and two African American justices to date. While this is obviously not the only criteria used, many of those considered for SCOTUS have similar qualifications and it's not as if objectively better candidates are being passed up to make sure the Court better reflects the US.
James, thanks for the response. I wish I could say you were wrong, but you didn't really bother to make an argument.
To be clear, when I dismiss as irrelevant biological characteristics that have no impact on judgment or intelligence (and I take for granted that skin color is one such characteristic, you may feel free to disagree), the conclusion implicit, or inferred, was that the Supreme Court should NOT necessarily "reflect the United States as a whole." Do you see then how your response is just a conclusory statement, just the opposite of what I said? That isn't an argument fella.
Instead of repeating the same liberal platitudes about the infallibility of affirmative action, perhaps you could make an argument for why we should consider a nominee's appearance instead of solely their merit. I just don't see the point of even responding to me, debating me, if you aren't going to offer substance.
But granted, you do offer lip service to the policy, stating disingenuously that affirmative action doesn't result in "objectively" less qualified candidates (I thought diversity was objectively better though?). I say "disingenuously" because no one is so naive to actually believe that. Political considerations unrelated to identity politics may force more qualified nominees to get passed over, and Sotomayor (who we were told explicitly was chosen for her race/gender) was very clearly outmatched by liberal intellectuals like Sunstein, Tribe, or Chemerinsky. Nonetheless, we have the wise Latina not the intellectual powerhouse white male.
But I also use "disingenuously" to illustrate the proper use of that word, which would not apply to my reference to MLK's belief in a colorblind world. I actually do believe in that.
4:33, last night (when you were 2:12) I started to write a snarky reply but I got stuck when I kept realizing you were right. You still are.
The fact is, a lot of what the Court does involves discretion. For example, alienage gets strict scrutiny, gender intermediate, and disability gets rational basis review.
Ensuring that the Court is representative helps ensure that it can fully consider competing concerns. Unlike mathematics, law is very much about human behavior and concerns. Why shouldn't we try and put the Court in a good position to understand these concerns?
And any of the mentioned characteristics inform this prima facie how?
What? 2:12/4:33, your posts seem wrong and off target to me in all sorts of ways.
First, you're mixing in allusions and sarcasm in ways that sound rather clever, but really just jumble up your actual points. By tying your comments into MLK and the whole Harvard student email debacle, you're suggesting that anyone who disagrees with you is racist (or perhaps just woefully inarticulate).
Second, and and where I disagree most, you're arguing that biological characteristics (by which I think you mean race, sex, and sexual orientation) have no impact on judgment. If you mean the ability to render reasoned judgments, then you're absolutely right. But I think what you're really suggesting is that race/sex/sexual orientation have no impact on the decisions that a judge (or Justice) will render. I think that's just flat wrong. Read Thomas' cross burning dissent. Or read Ginsberg's questions in oral argument in the strip search case from last term. "Biological characteristics" shape life experiences and those in turn shape judicial ideologies and ultimately judicial opinions. These factors don't matter in the vast majority of cases, but that doesn't mean they don't matter. In this sense, a nominee's experiences (not so much their "visual appearance" as you call it, but the whole of their experiences, including those related to their "visual appearance") do, in fact, make up part of a nominee's merit to fill the position of Justice.
I disagree with Laura. Or at least I think I do.
The power of Thomas' cross burning dissent in Virginia v. Black is hard to deny, but it becomes something else entirely when placed next to his remarks in affirmative action cases like Adarand v. Pena. Why? Because his views show we are dealing with a human being, and not a proxy for some racially pre-determined point of view. A corollary of that very reasonable statement is (or ought to be) that race should never be a proxy for experience.
The rejoinder is to say "race creates unique experiences" but if that is supposed to be a categorical rule, then it is neither correct nor helpful. Race per se does not create unique experiences; life creates unique experiences. That is what we ought to be looking for when considering a SCOTUS Justice.
We don't really know what General Kagan thinks about a lot of things and we ought not be drawing inferences from her sex or orientation. Not unlike Thomas and affirmative action.
I agree that you shouldn't draw inferences about how a judge will decide a case based on her race/sex/etc. But you can assume that in some cases that judge will think about the issues and approach the case in a different way based on her background than other people would look at it. Hence, I think 2:12's conclusion that "it doesn't matter" is wrong.
The purpose of a panel -- three judges in most instances, nine Justices in the most important instances -- is to reach the best outcome by drawing on the experiences and opinions of a group. A panel best achieves its purpose then when the group is contributing a variety of experiences and opinions. Looking to elevate people with different backgrounds is one way of encouraging such diversity of thought.
Should the president select someone solely on the basis of race/sex/sexual orientation? Of course not. But when looking at a whole pool of qualified intellectual powerhouses (Kagan and Wood are these too, 2:12, not just the white men you list), then I think the president is entitled to use whatever additional factors he likes in making the final decision. Be it that he's personal friends with someone who supported him early on (like Kagan) or likes their background.
All fair.
What bothers me is the common assumption that the presence of an immutable quality like race, sex, or orientation are sufficient conditions for political or intellectual value. What we really care about are people's experiences and perspectives on the world, so why can't we just talk about those? We all know that stupid, evil, clumsy people hail from every county on the genetic landscape - just like brilliant, careful, contemplative people. The latter qualities are the ones we want on the court, but immutable traits have little to do with them.
What comes next may be ironic or idiotic in light of all I've just said, but the truth is I am far more likely to support Kagan if I find out she is gay. It seems reasonable that the Court will confront gay rights in a big way sometime in the next 30 years, and it would add a lot to the legitimacy of any ruling (for or against) to have that voice on the Court. Without pointing fingers or accusing, it may well be that some members of the current Court have never had a gay friend in their life. Without trying to parse whether this goes to their "experience" or to Kagan's "qualification" I feel her presence would be a good addition to the Court.
But maybe I'm genetically predisposed to hypocrisy. We can't rule out the possibility.
"But you can assume that in some cases that judge will think about the issues and approach the case in a different way based on her background than other people would look at it. Hence, I think 2:12's conclusion that "it doesn't matter" is wrong."(emphasis added)
Can't you equally assume that, in some cases, white male judges will approach the case in a different way based upon their background (one possibly utterly divorced from racial or sexual issues)? I suppose I fail to see why being able to assume that in <100% of cases some characteristic exists in a minority population it is reason to employ that characteristic as a tie-breaker when you have multiple "intellectual powerhouses." If one can find brilliant persons regardless of sex, gender, sexual orientation or race, why does one of those factors make someone a better Justice? Seems circular.
Anonymous, could you explain your definition of an "intellectual powerhouse"? I am puzzled by how Justice Sotomayor, a brilliant lawyer and student, fails to meet any such standard.
You write: "white male judges will approach the case in a different way based upon their background (one possibly utterly divorced from racial or sexual issues)."
Can you explain how being a white man "divorces" a person from either his racial identity or sex identity, and further, how this means he has lived a life free of the experience of being white and male in America, broadly, and in the legal world?
To be honest, I am stunned by your default assumptions, which effectively claim that white men are a neutral (and really the only valid) metric for the country, for intelligence, for accomplishment, or for the experience of being an everyday American.
Patrick, I don't think anyone has made the argument that a person's identity should proxy for his/her decisions, qualifications, or politics.
2:12, I hope you're proud of your little straw man village. Since I didn't say much, I guess you decided to construct some thoughts for me.
I simply don't hold it to be true that more credentials means better judicial philosophy. I think the Court is better for its differences and I think qualified justices can come from many different backgrounds. I think it would be an error to disregard these backgrounds when looking at the composition of the Court. The legal field is still one that is extremely white and male, especially in the upper echelons. I think this has a negative impact on our society.
I don't mind if you don't agree. My comments are less about getting in a pissing contest with someone who's fine with 9 old, white men on the Court.
Your use of the King allusion was either disingenuous or simply ignorant about the context of what King's dream meant, where we're at now and what needs to be done in order to get there. We live in a country that is still deeply divided along racial lines, especially when it comes to the legal profession.
What is offensive about 2:12's comment is not that it takes issue with affirmative action, but that it cites Dr. King to do so. Reasonable minds can surely differ about whether members of subordinated and traditionally underrepresented groups (whether defined by race, gender, or sexual orientation) should receive a leg up in hiring or in nominations for the high court. But to pretend that affirmative action is the same as the shameful Jim Crow segregation that African Americans were subjected to is certainly "disingenuous" (and I would probably use a stronger term.) Martin Luther King cannot be your spokesperson against affirmative action, when he also said things like this: "A society that has done something special against the Negro for hundreds of years must now do something special for the Negro."
Sarah
@8:55
"Anonymous, could you explain your definition of an "intellectual powerhouse"?"
I was quoting a previous poster's language.
"To be honest, I am stunned by your default assumptions, which effectively claim that white men are a neutral (and really the only valid) metric for the country, for intelligence, for accomplishment, or for the experience of being an everyday American."
That was not my assumption, it was the assumption implicit in any comment which implies deviation from the white male is deviation from the standard metric.
"Can you explain how being a white man "divorces" a person from either his racial identity or sex identity,"
I said could be divorced, meaning the unique experiences in someone's background may be related to neither race or sex. Or they may be related to both. But to presume that people of other sexes, races, and sexual orientations have 'better' experience PRIMA FACIE is incorrect. That was my point. Not that white men never have experience influenced by their race, nor that anyone else does.
But thank you for acting like I am somehow crazy.
No sane and reasonable person believes that affirmative action is “the same” as slavery, segregation, or the many indignities associated with Jim Crow in this country. And assuming that Martin Luther King in the present day would be a crusader against affirmative action is likewise delusional.
But King’s words, longing for a day when people would be judged not “by the color of their skin but by the content of their character,” are among the most remembered and revered in American history for a reason – because they reflect a beautiful ideal of justice that resonates with people of nearly every background. And yes, reasonable minds may disagree about whether, for example, Justice Roberts’ assertion that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race” is somewhat naive, and whether the end of reaching Dr. King’s dream world justifies the means of making important judgments about people based on the color of their skin.
Yet it is impossible not to notice that the message of King’s speech is significantly at odds with the approach that says, “Our Court does not properly reflect the population of the United States, and therefore the next Justice must be [insert demographic].” The sort of identity politics that sees race, gender, sexual orientation, etc., as qualifications in themselves, and that asserts that the Court literally cannot do a good job of judging without having members of these various demographic groups, is simply not consistent with the message – this is not judging people “based on the content of their character.”
There is much to be said about these issues, and I don’t think any slogan or ideology can do justice to their complexity. But it is neither offensive nor disingenuous to point out that Martin Luther King’s most memorable line from his most memorable speech envisions a colorblind world. And although we will continue to debate about the means, I hope that this is the end our society is striving for.
MJP
Thanks for the thoughtful comment, MJP. Nevertheless, I still find it offensive that today's racial conservatives cite King as though he proves their point, when he would disagree with them profoundly. And I think Dr. King is, and should be, remembered for much more than an easily-misunderstood sound bite.
2:12: find another scholar or activist to cite, one that actually says what you're quoting him for.
Also, I don't know that anyone has said that the court cannot possibly do a good job of adjudicating without having members of subordinated minority groups. What seems reasonable to me is that (1) people's understandings of privilege and opression may be shaped by their privilege or oppression, which, unfortunately, is often determined by, or at least, correlated with, race; and (2) there is something problematic about our high court being composed entirely of straight white males (which it has been for most of the 200+ years that it has been in existence). I don't believe the high court must perfectly reflect our society in every way, but it is hard not to be troubled by looking at who has traditionally held powerful positions in this country and seeing almost exclusivly straight white men.
Sarah
what you call an "easily misunderstood soundbite," i call one of the world's most moving, inspirational calls for justice. to each his own, i guess.
I don't mean to disparage the sentiment behind the "I have a dream" speech. Rather, I am criticizing conservatives who use the speech to argue for something that was absolutely not what Martin Luther King intended by those words. It is a "call for justice," indeed, but not for the goals that these people are advocating. That is why I am arguing that the quote is being misunderstood and used out of context as a soundbite.
Sarah
Sarah: Exactly how else do you interpret the words "judged by the color of their skin but by the content of their character." I don't see an "except for judges" or "except for affirmative action" clause there. And really, how do you know what he meant? Did he tell you? And can't his words, like our constitution, evolve into something different today?
And I see no reason why only those who agree with your politics have the right to his words. If he said an apple is red, is that off-limits too b/c I'm not using it to further your progressive cause? In the end though, it's just one sentence from one person, so who cares?
http://en.wikipedia.org/wiki/Appeal_to_authority
What MLK did or did not mean doesn't make any one here right or wrong.
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