Elena Kagan: Would she turn Supreme Court into We the People?
Elena Kagan, if confirmed as the next Supreme Court justice, would shift the balance dramatically – with three women and a Jewish-Catholic bloc. So would the high court look like We the People?
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The "wise Latina" statement clashed with the notion that judges must do nothing more than look to the history or intent behind the law at issue. Justice Sotomayor's Democratic supporters, not at all willing to turn the historic nomination of the first Latin-American to the Supreme Court into a dragged-out national referendum on constitutional interpretation, claimed the quote was taken out of context. But the entire speech, given in 2001, was about "whether by ignoring our differences as women or men of color we do a disservice both to the law and society." She claimed that "aspiration to impartiality is just that – it's an aspiration because it denies the fact that [women and people of color] are by our experiences making different choices than others."Skip to next paragraph
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Yet when it came time for Sotomayor to defend her speech, she repeatedly demurred, casting herself as a strict constructionist on the Constitution's text and history.
Unseized upon by either side in the Sotomayor hearings was her comment in the same "wise Latina" speech that "Justice Clarence Thomas represents a part but not the whole of African-American thought on many subjects." Indeed, his personal experience with affirmative action left him feeling as if he'd been stamped with a "badge of inferiority," as he put it in a 1995 opinion. To this day, according to his autobiography, his Yale diploma, upon which he placed a sticker reading "15¢," sits in his basement.
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But diversity as simply an aesthetic versus experience that comes to bear in interpreting the law will not disappear. It affects every potential next "first" on the court – such as the first Asian-American, the first gay, or the first atheist.
But are identity politics antithetical to an independent judiciary?
"The court is not a representative body, and it's not clear its function is to be a representative body in any way," says Barry Friedman, vice dean of the New York University Law School in New York City and author of "The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution." However, Mr. Friedman concedes, "in deciding legal questions, it does become important for the court's long-term credibility to reach conclusions that are acceptable to the American people."
One way to stay credible is to have justices whom Americans identify with and admire.
"As a minority, it is gratifying and yes, important, for me to see people of color on the Supreme Court and in other positions of leadership," says Viet Dinh, a law professor at Georgetown University in Washington, D.C., and a former high-ranking official in George W. Bush's Department of Justice. "When I see a Justice Thomas or a Justice Sotomayor," continues Mr. Dinh in an e-mail interview, "I am inspired by their example, for the simple reason that they have overcome so much, that they made it there not because of their race, but in spite of it."