President Obama had hinted that his next appointment to the high court would not be a former judge. It was also rumored that the new Justice would not be an academic. Although I would not be averse to seeing a great trial lawyer with a background in defending civil liberties like Justice Thurgood Marshall, or the brilliant trial lawyer and Yale lecturer Martin Garbus, ascend to the bench: Elana Kagan is an excellent choice!
Her tenure as Dean of the Harvard Law School verifies her stature as a brilliant scholar in the law; her present service as Solicitor General testifies to her skill as a litigator, and the fact that she clerked with Justice Thurgood Marshall – whom she said “did more to promote justice in his legal career than any lawyer during his life time,” in her acceptance speech – tells us that she stands firmly on the side of equal opportunity under the law. And as the Charles Hamilton Houston Professor of Law at Harvard, she must have been ever mindful of the role the law can play in righting society’s wrongs against powerless and unpopular groups.
For even more than Thurgood Marshall, who was his student, Charles Hamilton Houston shaped Civil Rights law in twentieth century America.. A graduate of Harvard Law, Houston founded both the NAACP legal department and the Law School at Howard University. Thurgood Marshall was a product of both institutions. Hence Elena Kagan’s views on critical issues like equal opportunity and Affirmative Action are informed by the two towering figures in this area of constitutional law. Furthermore, she was chosen by Barack Obama, a constitutional scholar who is the best qualified President to pick a Supreme Court Justice in American history.
Like Justice Marshall, Ms. Kagan was elevated to the Court from the Solicitor General’s Office, and I am certain that, like Justice Sotomayor, she will bring the unique perspective of the brilliant female professional who has competed with men on the highest level and had to overcome institutionalized sexism to crash through the glass ceiling and reach the top. As the first woman Dean of Harvard Law, or to serve as Solicitor General of the US, Ms. Kagan is certain to bring a wise female point of view shaped by these experiences to the interpretation of the laws.
It is an insight that only women can bring to our understanding of the laws because they affect the life’s chances of half the population and no men have endured such “real life” experiences. This fact should be borne in mind when we are forced to listen to the bogus clap trap emanating from reactionary male chauvinist Republican Senators who clamour on ad nauseum about Solicitor Kagan’s lack of “real life” experience.
Ms. Kagan’s decision to turn away from a highly lucrative career as a corporate lawyer, and the types of cases she has chosen to argue before the Court as Solicitor General – For instance the Citizen’s United case for campaign finance reform, which sought to limit corporate contributions to candidates for public office was the first case she chose – tells us that she will protect the public interests. As President Obama noted this is the first time three women will be seated on the high court – there have been only four in the history of the Court. He went on to point out that this court would be “more inclusive, more representative; more reflective of us as a people than ever before.” I say that’s a good thing for us all. And I listen with amused contempt at what the reactionary Republicans, who run with the rabble and hunt with the plutocrats, have to say on the matter.
May 10, 2010