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Analysis: If confirmed, Kagan would give women on court 'critical mass'

This article first appeared in the St. Louis Beacon, May 4, 2010 - If Solicitor General Elena Kagan is able to surmount the tough confirmation fight ahead -- and most experts think she will -- then the U.S. Supreme Court will have a critical mass of women for the first time in its history.

"Of 111 Supreme Court justices, only three have been women!" Karen Tokarz, Washington University law professor, wrote in an email. "This is an historic moment. She possesses enormous intellect, superb interpersonal skills, exceptional political savvy, and great leadership. Given that, she could prove to be a mediating force on the court -- both socially and in terms of decision-making. She is self-confident, a consensus-builder, gracious and funny."

Tokarz's colleague, Susan Appleton, said that three female justices on the court would create a "critical mass" that could change discussions. Appleton noted that the court itself recognizes in its affirmative action decisions the importance of previously underrepresented groups achieving a critical mass.

"I would imagine (something short of a prediction)," wrote Appleton, "that the group of three women would help integrate such perspectives in more consistent and even more subtle ways -- although I am certainly not suggesting that all three, just because they are women, would take the same position or reach the same outcome on a regular basis. But I do think the conversation among the justices will be different."

Joel Goldstein, professor at Saint Louis University, agreed that the presence of three women on the court would be significant, noting that three of the last four nominees to the Supreme Court and four of the last seven have been women. (While George W. Bush nominated Harriet Miers to the position, she withdrew before her nomination could be voted on.)

"The appointment of a third woman justice means we are approaching a time when commentators will no longer be able to view gender as a decisive factor in Supreme Court appointments." Goldstein wrote in an email. "The existence of a critical mass of women on the court helps make a woman justice a normal occurrence, not an exception."

Goldstein added that Kagan's "selection is surprising only in that it leaves the court without a Protestant member. She would be the third Jewish member to go with six Catholic justices. Whereas once justices were chosen to fill the 'Catholic' or 'Jewish' seat, there is no indication that any of the current members were chosen for religious reasons. ... It is a tribute to our nation's progress in overcoming religious bigotry that presidents no longer need to choose justices based on that factor."

Both Goldstein and Roger Goldman, also a professor at Saint Louis University law school, doubted that Republicans would filibuster Kagan's nomination.

Goldman predicted that Kagan might have an easier time getting confirmed than Justice Sonia Sotomayor last year because nothing like Sotomayor's "wise Latina" comment has surfaced. Also, seven Republicans supported Kagan for solicitor general, although some have made clear that the bar will be higher for the life-tenured seat on the Supreme Court than for the job as the president's lawyer in the court.

Politico reported that the Kagan confirmation process could be rougher than the Sotomayor hearings partly because Republicans will want to stir up their conservative base in the months before the election. 


The GOP Line of attack


In early comments, Republicans have outlined at least three lines of criticism -- that Kagan lacks judicial experience, is anti-military and has had such an elite career in East Coast institutions that she is without an understanding of the average person.

The lack of judicial experience criticism carries with it an ironic history. Republicans refused to act on Bill Clinton's nomination of Kagan to a federal appeals court in the months before the 2000 election. The seat eventually went to Chief Justice John G. Roberts.

Goldman thought Kagan might benefit from not having the paper trail that a judge accumulates. He also noted that Roberts and Justice Clarence Thomas had only two years as judges before they were elevated to the Supreme Court. He added that some of the most prominent justices in history had no judicial experience when appointed, among them Louis Brandeis, Felix Frankfurter, Earl Warren, William H. Rehnquist, William O. Douglas and Lewis F. Powell Jr.

In fact, on a court with eight former lower court judges, a ninth with substantial experience in the Clinton and Obama administrations could be seen as a plus. Kagan served in the Clinton White House and the Obama Justice Department.

Kagan's handling of the military recruiter issue while dean of Harvard Law School opens her to the criticism that she is pro-gay and anti-military.

Like many elite law schools, including Washington University law school, Harvard denied military recruiters equal access to its students. The law schools based that decision on their non-discrimination policies, categorizing the military's "don't ask, don't tell" policy as discriminating against gays.

In reaction, Congress passed the Solomon amendment that would have taken federal funds from any university that denied military recruiters equal access to its students. Kagan joined other law school deans in challenging the amendment's constitutionality.

Jeffrey Toobin has written an account in the New Yorker of the way in which the pragmatic Kagan tried "tortuously" to steer a "middle course" on the issue, joining the narrower of the legal arguments made against the Solomon amendment. But the court rejected the arguments 8-0. 

Kagan has taken pains to praise the military and has met with veterans on Veterans Day, actions that her supporters hope will dispel the anti-military criticism.

Tokarz wrote: "Her stance on the Solomon Amendment was anti-discrimination, not anti-military. She was protecting and advancing the rights of her students to equal access to employment. She was very supportive of students and alumni in the military while dean."

Kagan's public statements on the military's discrimination against gays stand as some of her strongest public statements. "I abhor the military's discriminatory recruitment policy," she wrote, adding it was "a moral injustice of the first order."

This history could play into a still mostly below the radar campaign to portray her as promoting the "gay rights agenda."

A former Bush administration official wrote in a blog earlier this month that the unmarried Kagan was openly gay, a claim he later backed away from, saying he was just repeating rumors. The White House angrily denied that Kagan was gay. But the issue continues to have a life on the internet.

Dave Roland, a lawyer at the Show-Me Institute, said the rumors could hurt Kagan. "There is one thing that I really worry about in terms of the upcoming debate on her nomination, but it has nothing to do with her qualifications and everything to do with partisan politics," he wrote.

"There has for some time been speculation among Republicans that Ms. Kagan might be a homosexual. My greatest concern is that, whether or not this is true, there will be a firestorm of opposition from religious conservatives that her nomination will advance the 'gay agenda' and, given the danger that many Democrats feel as the election approaches, this might be enough to torpedo her nomination."


A Uniter, not a divider?


One possible result of Kagan's joining the court would be the further empowerment of Justice Anthony Kennedy, the courtly conservative who is positioned at the fulcrum of the court. Already it is Kennedy whose view almost always decides the 5-4 cases on the most contentious issues, such as religion, free speech, abortion, gay rights and presidential power during the war on terrorism.

With Kagan on the court, Kennedy would not only be the deciding vote, but would almost always be the justice assigning the opinion when he joins the liberals. By court custom, the chief justice assigns the opinion when he is in the majority; when he is not, the senior justice assigns the opinion. In recent years that has meant that retiring Justice John Paul Stevens assigned most of the opinions where the liberals prevailed. In the future, it is likely to be Kennedy.

Some have speculated that this might induce Kennedy to join the liberal to moderate justices in a close case. Goldstein put it this way: "On issues where the court divides on ideological grounds, Justice Kennedy, particularly if he is somewhat ambivalent, may have added incentive to side with the so-called liberals now so that he can assign the opinion.

"Whenever Kennedy differs with Roberts and (Antonin) Scalia, he gets to assign the main opinion, a privilege that would allow him to assign potentially historic opinions to himself. Whether that phenomenon develops will be one of the interesting dynamics on the new court worth watching."

President Barack Obama cited Kagan's ability to bring together a contentious Harvard law school faculty as one of the traits that made her a good nominee to the court. His hope would be that she might find a way to bridge the ideological divide among the justices.

Tokarz cited Kagan's consensus-building ability as important to her success on the court. Goldstein did as well, although he cautioned that it will be some time before anyone knows if Kagan is succeeding in this role.

"If the skills she demonstrated as dean are convertible to the court she may have an influence that extends beyond her single vote," wrote Goldstein. "On the other hand, it is unlikely that she will be able to evidence any such skills for a few years. Some reports suggest that Chief Justice Roberts has not appeared to be a fan of hers during her arguments before the court."

Hopes that a justice might be a bridge-builder have failed in the past. Antonin Scalia was touted as someone who could reach across the ideological divide, but his influence on the court has turned out to be more polarizing that unifying.

Richard Kuhns, a law professor at Washington University, thinks Kagan is unlikely to have an impact on the most conservative justices.

"The four far-right justices are such ideologues that it seems unlikely that whatever persuasive power's Kagan may have will budge them," he wrote in an email. "That leaves Kennedy, who has been the focus of all the commentary -- much of which makes him sound like a brainless idiot. Maybe Kagan will be able to appeal to his reason; but after the way he's been portrayed in the press the last few days, it will probably be harder."

The one area where Kagan could move the court to the right is on presidential power in the war on terrorism. Liberals have criticized her for supporting George W. Bush-like positions in some terrorism cases during her short tenure as solicitor general. But papers released from the Clinton library show that she criticized a proposal to strip the courts of jurisdiction over terrorism detainees.

Kuhns, himself a liberal, said liberals probably shouldn't worry. "The notion coming from some on the left that Kagan is too much of an unknown quantity seems wrongheaded to me. She has worked with strong liberals throughout her life; she may not have the public record on hot button issues that liberals would like to see; but I can't imagine that Obama doesn't know exactly what he's getting. And I think it will be good." 

William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute

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