Regardless of which person the President would have selected for Associate Justice of the United States Supreme Court, I would have been interested. I am curious to see what floats around in the ether (read: debate) around present-day nominees, and given the interest by many in the makeup of the court, I want to keep tabs on the rhetoric around this specific nominee. Especially since she's an ex-gay.
Just kidding. The never gay-friendly Parents and Friends of Ex-Gays (PFOX) has concluded that Ms. Kagan must be an ex-gay because she doesn't give any comments about her sexual orientation. Washington DC's City Paper looked at and deconstructed PFOX's argument. But what this accusation says to me is that there isn't a lot of easy ground from which to throw pot shots at Kagan. She's no Harriet Miers.
Early on, after the nomination announcement but before the hearings, the margins of the framing for Kagan as Newest Jurist looked like this:
- Ridiculous aforementioned "ex-gay" crap
- Using support Kagan showed to a Supreme Court of Israel justice as proof she'll be an activist judge
- Calling Kagan's hiring practices at Harvard racist
- Saying Kagan's support of transgender protections on the Harvard University campus were "forcing" sex-change operations on "gender confused" students (granted, this charge is from a fringe right group)
- Pointing to Kagan as anti-military because of her refusal to let military recruiters join the career day at Harvard's Law School
The rhetoric around her nomination from Senators, I presumed, would be different. Overlapping a bit of this frame, yes, but it seems to have focused in the additional areas of "will she be an activist judge," "will she throw the balance of the court to the left," and "will she insist every woman have an abortion every time they get pregnant?"
To take these in order: no, no, and no, of course not, you anti-choice lunatics.
Let me just say first that she didn't balk at the "under God" part of her swearing under oath, but she didn't swear it on a bible, either. And she did wear a Hillary shade of blue for her ensemble, so she's got some teeth, people. But okay, I should pay attention to the content, not the style. I'll try not to just look at those two black buttons the whole time she's talking.
Next she mentions Senator Byrd's passing. My partner had remarked to me on Monday that he's going to be a hard man to eulogize, what with his previous membership in the KKK, bound up with his long list of Democratic bills sponsored and passed. So I held my breath when she brought up his name. What the BP oil disaster gave in lowering the media pressure off her, would Byrd's death take away?
She swivels her chair like an expert to show off the galley of folks behind her who know her and who came to the Hill with her to support her. Senator McDonnel, these people are watching you like a hawk. So don't try anything nasty.
Now to her parents, the strong father, the determined mother who didn't speak English until she went to school. I call that a failing of the local Kid Care pre-school, sheesh. Dad grew up to be a lawyer, while Mom and her two brothers became teachers. She mentions her parents were immigrants. Legal immigrants, I suppose. But in the trite generalizations there is this: Kagan wants America to support opportunities for individuals. This is notable to me, because the Court has been drawing new lines between Federal and states' rights, and Federal and individual rights since its shift to the more conservative side of the political spectrum. Just this week they sent down their ruling about Chicago's gun control laws—saying the handgun ban in Chicago was "unenforceable," they used their reading of the Constitution to pull at the already unraveling string on gun limit policies. If opportunity means growing up in a community free from handgun violence, will Kagan see opportunity for people from her seat on the bench?
She says she is only sorry that she won't get to serve with outgoing jurist Stevens. In rounding up his very fine qualities, she includes his "independence" and adherence to the rule of law. Is she saying that she'll be principled but wants to be free of how others think she should vote? I think so, because she goes on to say that she'll approach each case with an open mind and render each case impartially. While I don't personally believe in impartiality, I get what she's saying. She does not want to be pigeonholed here. I should go back and read Robert's opening statement, because I'm guessing it is similar on this level.
Kagan thanks Sandra Day O'Connor and Ruth Bader Ginsburg for the kindnesses they have shown her and for the opportunities they've given women in the law. That's nice. And also a reference to supporting opportunities for people. Hmm.
She believes that the rule of law is to provide us liberties and freedoms, and just for good measure, throws a little term—equality—in there, almost like kindling. Now she gives us her philosophy of the Court:
And what the Supreme Court does is to safeguard the rule of law, through a commitment to even-handedness, principle, and restraint.
I can't imagine that Thomas and Alito like hearing that. But Roberts and Scalia probably smile at the liberal's challenge. In my version of the universe, anyway.
In talking about her clerkship for Thurgood Marshall, she says:
. . . the Supreme Court stood as the part of government that was most open to every American — and that most often fulfilled our Constitution's promise of treating all persons with equal respect, equal care, and equal attention.
She's not just saying that the Court is indebted to giving the opportunity to redress problems for every person, but that the Constitution itself acts as a protector for Americans. I like the clever ways she's attached her philosophy to other great liberal leaders on the Court. Not that it will deflect a shred of scrutiny during the rest of the nomination process, but it's elegant all the same.
Now a bit of equal under the law shenanigans that nobody believes anymore. If I get stopped for speeding I'm not also going to get investigated for being an undocumented worker or shot for pulling out my cell phone, okay? But okay, it's nice talk to the Senate committee. We Americans love hearing how bloody equal we are.
She closes out on an academic's take on everything from the Court to democracy itself:
I've led a school whose faculty and students examine and discuss and debate every aspect of our law and legal system. And what I've learned most is that no one has a monopoly on truth or wisdom. I've learned that we make progress by listening to each other, across every apparent political or ideological divide. I've learned that we come closest to getting things right when we approach every person and every issue with an open mind. And I've learned the value of a habit that Justice Stevens wrote about more than fifty years ago — of "understanding before disagreeing."
I will make no pledges this week other than this one — that if confirmed, I will remember and abide by all these lessons. I will listen hard, to every party before the Court and to each of my colleagues. I will work hard. And I will do my best to consider every case impartially, modestly, with commitment to principle, and in accordance with law.
My mind tells me that some positions are more just than others, that some political tactics are indefensible, and that sometimes there is no way to bridge the divide between opposing views. But I'll give her the opportunity to talk about being impartial, because I know that's what the Senate GOP wants to hear if any of them are going to vote for her.
And I'm sure we'll get back to the ex-gay thing very soon.