The Great Kagan Supreme Court Debate

Barring any really surprising revelations, Elena Kagan will pass relatively unscathed (certainly by the standards of some past hearings) through the Senate confirmation hearings and take over the seat on the Supreme Court bench vacated by retiring Associate Justice John Paul Stevens. If and when this happens, she will become the third sitting female justice, joining Sonia Sotomayor and Ruth Bader Ginsburg, and only the fourth in history, with Sandra Day O’Connor.

She would also bring the Supreme Court to a curious religious mix – 3 Jews and 6 Catholics – which is exciting commentary, and some bizarre speculations and conspiracy theories, on the right. All we need is some connection to the UN and the World Bank to have a set-up worthy of an X Files level conspiracy (Elders of Zion, Templars, Jewish bankers, the Vatican, etc.).

Perhaps Richard Branson has taken Colonel Sanders’ place…

For more reasoned discussion: Two leading legal experts debate the pros and cons of Obama’s nomination of Elena Kagan. Lawrence Lessig knows Kagan well through their shared time at Harvard, while Glenn Greenwald is a regular commentator on the Supreme Court.

The Great Kagan Supreme Court Debate: “The following is a transcript of Amy Goodman’s Democracy Now! interview on Wednesday with Glenn Greenwald and Lawrence Lessig. It has been edited for length and clarity.

Amy Goodman: If confirmed, the fifty-year-old Elena Kagan would be the Court’s youngest member. She would become the fourth female Supreme Court justice in US history and the third on the Court’s current bench. She would also be the first justice in nearly four decades without any prior judicial experience.  (via AlterNet.)

It’s good to hear some sensible analysis and critique of Kagan’s judicial perspectives – far too much of the discussion has involved a quite disturbing focus on her identity. Her Jewish identity has been the subject of a thinly- to not-at-all- veiled antisemitic screed by, surprise, surprise, Pat Buchanan:

Pat Buchanan Takes On the Kreplach Cabal: “If (Elena) Kagan is confirmed,” he wrote, “Jews, who represent less than 2 percent of the U.S. population, will have 33 percent of the Supreme Court seats.”


“If Kagan is confirmed,” he went on, “three of the four justices nominated by Democratic presidents will be from New York City: Kagan from the Upper West Side, Sotomayor from the Bronx, Ruth Bader Ginsburg from Brooklyn. Breyer is from San Francisco.”

Well, Katie bar the door before the kreplach cabal busts through the gates.

Buchanan didn’t say it but he didn’t have to: The real danger is that too many Jews will wind up sitting on the highest court in the land. And that would be a bad thing for the republic.  (via Coop’s Corner – CBS News.)

Pat Buchanan suggests: Too many Jews on U.S. Supreme Court bench: “Buchanan decried the lack of Protestants on the bench, saying that “If Kagan is confirmed, the Court will consist of three Jews and six Catholics (who represent not quite a fourth of the country), but not a single Protestant, though Protestants remain half the nation and our founding faith.”

Keli Goff: Elena Kagan, Pat Buchanan, MSNBC and Me: “why is a major network is continuing to provide a paying platform for someone engaged in hate speech? Pat argues, “If Kagan is confirmed, Jews, who represent less than 2 percent of the U.S. population, will have 33 percent of the Supreme Court seats.”

Buchanan Kagan Column Draws More Criticisms Today: “Syndicated Columnist Pat Buchanan’s controversial column from last week that essentially claimed too many Jews would be on the Supreme Court if nominee Elena Kagan joined the group received two more criticisms today.”

For some background on Pat Buchanan, and previous examples of his racism, antisemitism and all around demagoguery, check out Pat Buchanan in His Own Words for such tasty treats as this:

In a 1977 column, Buchanan said that despite Hitler’s anti-Semitic and genocidal tendencies, he was “an individual of great courage…. Hitler’s success was not based on his extraordinary gifts alone. His genius was an intuitive sense of the mushiness, the character flaws, the weakness masquerading as morality that was in the hearts of the statesmen who stood in his path.” (via

(In a similar vein… while researching this, I came across Top 10 Craziest Things Ever Said By Pat Robertson | Ranker – A World of Lists. I’d love to get him and Iranian cleric Hojatoleslam Kazem Sedighi – of the infamous “boob-quake” theory – together, wouldn’t you? Just imagine the hilarious theories and accusations they’d come up with.)

As the Coop’s Corner post above suggests, other right-wing commentators have complained that Kagan’s confirmation would leave the bench too weighted to “coastal” perspectives and in particular to a New York liberal perspective (and isn’t that really just a code phrase for “kike”?).

But Kagan’s ethnic background has not been the only aspect of her identity to come in for scrutiny, commentary and criticism. Her sexuality has been a frequent topic of discussion – with a sort of consensus seeming to emerge that she is a closeted lesbian, who has kept her sexuality as carefully concealed as her positions on constitutional issues. And as with her legal opinions, the issue of her sexual preferences has been raised both on the left and the right, albeit only with a mild and hopeful curiosity on the left, as opposed to the homosexual panic that is predictably gripping the right.

Oh No! Obama Picks Liberal, Jewish Woman Who May Or May Not Be A Real Live Lezzie As Next Supreme Bench Warmer: “Penetrating intellect, unwavering integrity, sound judgment, and prodigious work ethic??” Well, well no wonder Republicans can’t stand the gal.

It’s interesting to see how much more open – and crass – the speculations about and attacks on Kagan’s sexual identity are than when the issue came up earlier during Ruth Bader Ginsburg’s confirmation process. I share a mild curiosity about Kagan’s sexuality, but don’t see it as having any particular bearing on her performance, if confirmed, on the Supreme Court.

I am much more concerned about the fact that she has kept closeted pretty much any information that might help us to understand what sort of positions she might take on the Bench regarding a whole range of pressing legal and constitutional issues, such as the matter of executive power.

And as if all that crap wasn’t enough, controversy has also arisen over one of the few of Kagan’s constitutional opinions is public:

The defective Constitution – Ben Smith : “Michael Steele has opened up on Elena Kagan today with a particularly odd line of attack, going after her for quoting Thurgood Marshall to the point that the Constitution was “defective.”

Using the words “defective” and “Constitution” in the same sentence is what we call waving the red flag (socialism) in front of the bull(shit) of the right, embodied in people like Glenn Beck and Rush Limbaugh. What Kagan actually did was refer to a discussion by Thurgood Marshall of the way in which the Constitution finessed the issue of slavery, and in other ways undercut its most important principles: “On a matter so basic as the right to vote, for example, Negro slaves were excluded, although they were counted for representational purposes at three-fifths each. Women did not gain the right to vote for over a hundred and thirty years.”

Thurgood Marshall was  the first African American to serve on the Supreme Court of the United States. He retired in 1991, unhappy that Bush would be picking his successor, who turned out to be Clarence Thomas – and a less  inspiring or appropriate replacement for one of the greatest legal minds in American history can hardly be imagined. Before becoming a judge, Marshall was a lawyer who, acting as the NAACP’s chief counsel, argued in the landmark Brown v. Board of Education before the Supreme Court in which he would later serve.

I’m nervous about Kagan’s nomination – obviously not because she might be a queer Jew from the Big Apple, which would suit me down to the ground, that being one of my personal favorite demographics – but because I feel that the little we do know about her perspective on pressing matters that are likely to come before the Court suggests that she will be too centrist for my tastes. Roe v Wade might be safe, but I am not so sure what would happen on issues like Patriot Act-style expansions of executive power and domestic surveillance or Guantánamo-like extraterritorial finessing of political and judicial oversight.


Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s