Elena Kagan and the rule of law

Elena Kagan and the rule of law

The law is on our minds just now, what with the nomination of a Jewish woman, Solicitor General Elena Kagan, to the Supreme Court and Shavuot – which celebrates the giving of the law at Sinai – mere days away. (See pages 21 and 41.)

Kagan seems bright, learned, and capable, but – as many have noted – she’s never been a judge. It’s hard, therefore, to pin down her judicial philosophy. Still, she has written about the Senate confirmation process, and some of her words, The New York Times predicted on Wednesday, “will now haunt her.” She called on the Senate “to embrace ‘the essental rightness – the legitimacy and the desirability – of exploring a Supreme Court nominee’s set of constitutional views and commitments.'”

Jewish Americans are likely to be pleased to see one of their own nominated to the bench, and if she is confirmed that would bring the number of Jewish justices to three (three women, as well). But we are not so people-proud as to want her to get a free pass. Explore away, we say, and in the process tell us all more about this woman who, as the youngest on the court, would influence American life for many years to come.

Meanwhile, what’s most surprising about her nomination is the lack of anti-Semitic response. Every news outlet has noted her Jewishness – although its extent is virtually unknown – and as far as we can tell it’s just been perceived as another trait, like age or hair or hobbies. The blogs, no doubt, will feast on it – and one of them, called “Palestinian Think Tank,” has already weighed in. In a May 12 post headed “Letter to Obama: You’ve Sold Your Soul for Kosher Dollars,” Mohamed Khodr, an American Muslim, wrote, “I am confident that this appointment of a lawyer with no judicial experience is just another appeasement to the Jewish community to comfort their concern about your Israeli policy and to keep their money flowing to the Democratic Party.”

That – and more like that – was to be expected. But the mainstream seems to have taken the nomination in its stride – unlike the bitter opposition to the nomination of the first Jewish justice, Louis Brandeis, in 1916.

America has come of age – we hope.


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