Whomever a president selects when the time comes for an appointment to the Supreme Court, the choice excites some, disappoints others and ticks off someone else. Elena Kagan, the former dean of the Harvard Law School may be brilliant (that’s fine). She may know the law despite never having been a judge (not a disqualifier for the Court) and she might be a lesbian (irrelevant to whether or not she can do the job). What she is though is an uninspired and disappointingly safe pick by President Obama.
Kagan’s nomination has drawn criticism that she is a dull “stealth” pick of dubious qualifications with no paper trail of legal opinions behind her for Republicans to pour through. Her main asset seems to be she can be easily confirmed by the Senate and avoid a filibuster that the White House doesn’t need going into the fall Congressional elections.
It’s less important to me I know that without variance, Kagan will tow the liberal line than I feel confidence she will be a worthy replacement for John Paul Stevens. I have no reason to believe she will not be, but neither do I have any reason to presume she will. Under Chief Justice John Roberts the Supreme Court has become aggressive in protecting the power of the Executive branch and corporate interests. Will Kagan’s ascent signal the president’s attempt to put the brakes on the rightward drift of the Roberts Court?
I’m uneasy about Kagan not so much because I’m afraid she morph into the anti-Stevens, but because she reflects the kind of timid pacification of the Republicans Obama seems to prefer because he doesn’t want a fight even with a Democratic majority. He may not have one by the time Ruth Bader Ginsburg steps aside, so if he gets another chance to make his mark on the Court, he may choose someone even more mediocre and bland than Kagan.
Most of all, I’m disappointed the president passed on the chance to place a Black woman on the highest court in the land. Whether or not Kagan is the first lesbian to wear the black robes of an Associate Justice is unknown, but the impact of a qualified and conscious African-American woman winning the appointment would have been monumental (and without a doubt would have energized the president’s Black base of support).
He had a chance to make a bold and historic choice and settled for safe and confirmable. No one questions Elisa Kagan’s ability, but her record is skimpy, her beliefs vague and her track record non-existent. The President has a tendency to make concessions even before he loses a fight. Leah Ward Sears would have been a superb choice, but apparently despite the presence of strong Black women all around Barack Obama, he’s not willing to support them with the same enthusiasm in which they supported him.
Mr. President if you want the Black community to support your choice of Elena Kagan to succeed John Paul Stevens on the Supreme Court, we need a reason to do so. You haven’t given us one yet.