Litigation

Elena Kagan and the Rising Debate over Diversity

By Peter Hardin

When President Obama announced his selection of Solicitor General Elena Kagan for the Supreme Court, he highlighted the diversity she would bring.

After alluding to Kagan’s late mother, the president said,  “I think she would relish, as do I, the prospect of three women taking their seat on the nation’s highest court for the first time in history ? a court that would be more inclusive, more representative, more reflective of us as a people than ever before.”

There’s no denying that the court never has had three female justices before. Obama’s choice of Kagan won applause on that front.

On other fronts, however, pundits and critics have questioned whether she would truly bring diversity. It’s an issue that is ripe for debate,  so Gavel Grab invites readers to go through a sampling of the commentary and reach their own conclusions.

GENDER: Her nomination, according to a New York Times article, represented “a benchmark that women?s law groups celebrated as a major step toward a sex parity that has eluded the United States Supreme Court compared with the highest courts of several states and countries.”

Added Marcia Greenburger, co-president of the National Women’s Law Center, in Huffington Post, “Having more women on the Court makes women’s meaningful representation part of the normal routine — rather than the exception to the rule.”

But. “The Supreme Court needs more mothers,” was the headline of a Washington Post commentary by Ann Gerhart. From a CNN commentary and elsewhere came another question, “Why no black female court nominee?”

EDUCATION: This issue is heating up, as analysts point to the fact that if Kagan were confirmed, each justice would have attended either Harvard or Yale.

Author Nicolas Lemann contended in an NPR report there is a resurgent elitism in our society: “It really represents an unstated but quite powerful consensus that there is a narrow channel through which you have to pass to be a Supreme Court justice.” Even BBC News has weighed in, asking, “Should the whole Supreme Court come from two schools?”

Christopher Edley Jr., dean of the law school at the University of California at Berkeley, takes Obama’s side in a Washington Post opinion piece entitled, “Why elites do belong on the Supreme Court.”

California lawyer Chris Arledge takes on Edley in American Thinker, responding, “[D]espite her intellectual firepower, Kagan is yet another Supreme Court nominee lacking one critical qualification: experience as a lawyer.”And international lawyer Susie Hoeller argues for geographic diversity in Huffington Post, asking, “Do Justices drawn from only Harvard and Yale realize that in Texas you never ask a cattleman how many head of cattle graze on his ranch?”

RELIGION: It’s another volatile issue for many. Confirmation of Kagan would mean a high court without a single Protestant.

Asked EthicsDaily.com, “Does a Protestant on the Supreme Court Matter?” Remarked a Wall Street Journal commentary headline, “That Bright, Dying Star, the American WASP.” In Huffington Post, Chris Weigant went further to decry  “a widespread (but unacknowledged) religious bigotry in America.”

You can read more about diversity on the bench from Justice at Stake’s issues page on the topic.

Full post as published by The Gavel on May 21, 2010 (boomark / email).