Legal Commentary

In no particular order:

1) I want to echo Jack Balkin's comments: This is all "dreary and tiresome." Which is not to say I am not going to follow (and write about) the confirmation hearings. But the noise on all political sides and the posturing really is wearying--and it only has just begun. I particularly thought it was ridiculous that media outlets saw fit to find out and report what House Minority Leader John Boehner thought of the nomination (he is outraged by the military recruitment/Solomon Amendment thing). Should we explain to the media (and perhaps to Rep. Boehner) that his thoughts on this matter are a constitutional irrelevancy?

2) At this point, I have no strong feelings about the merits of the nomination. She clearly is very smart, very good at communicating ideas (she apparently is a wonderful teacher), and very good at working with broad and intellectually diverse groups of people. She was obviously not the most prolific scholar, but I particularly liked her piece on the role of government motive in First Amendment analysis. Is she as liberal as Roberts or Alito are conservative? I doubt it, but that we have to wait on.

3) Perhaps I am reading too much into this, but I hope the following might be a good sign of changing rhetoric. In his introductory speech yesterday, President Obama praised Kagan as someone who understood that the role of the judge is to interpret not make law. Now, I hate the whole "judges __ law, they don't make law" way of framing things, because it is meaningless and pretty much untrue. I regret how this Republican/conservative talking point has become accepted as the only appropriate way for judges to act. But note the subtle difference from the Sotomayor hearings, when the talk was about judges simply applying the law, as would our infamous umpires calling balls and strikes. This version implies clear legal rules with little or no judgment necessary. At least this new way of putting it (if it holds) recognizes that some discretion goes into judging.

4) Of course, # 3 plays into a different point on the politics of this. What many liberals/progressives/whatever-we-call-ourselves-these-days want is less about how someone will rule as a member of the Court (my guess is that Kagan will be as reliably liberal--whatever that means--as Ginsburg), but about some sort of full-throated defense of a liberal/progressive constitutional and judicial vision, in the confirmation hearings and from the Bench. People want sharply written, broadly liberal dissents the equal of anything Justices Rehnquist or Scalia did in their early days on the Court. Folks want to hear about liberal constitutional vision before the Judiciary Committee, rather than platitudes about umpires, balls-and-strikes, and judges mechanically applying clear law to clear facts. They want, in other words, to no longer be playing on the conservative's rhetorical playing field. Can Kagan do that? Will she? And, frankly, is this what Obama wants from his justices?

5) One thing that struck me is that Kagan is the first Supreme Court nominee who is part of my generation. I mean that not only chronologically (Kagan is about eight years older than I am, as is John Roberts), but also sociologically. She is at the same point as I am on the curve of American-Jewish immigration and (for lack of a better word) assimilation. It was her grandparents who immigrated to the U.S. and ensured that their children (her parents) went to college and broke into professions. And now their grandchild is part of that generation of American Jews who enjoyed a comfortable upbringing and had all educational and professional opportunities open to them with relatively little fear of anti-Semitism and without the same sense of struggle or having to overcome as the previous generation (and as newer immigrant groups, such as Latinas). Kagan reportedly said that she lacked a "story" to make her nomination compelling. But maybe, at a macro level, her story is how fully integrated Jews have become into American society.