May 13, 2010

Why would it matter?

For the most part, all this discussion about Elena Kagan’s sexual orientation is generated by the media. Pundits ranging from Sully to Limbaugh (who also calls the nominee a “budding communist”) appear to be obsessed with something that has no applicability to the qualifications for the job.

What difference does it make if she is or is not a lesbian? She could enjoy sex with a pogo stick and it wouldn't alter her judicial credentials an iota. The very discussion of Kagan’s sexuality distracts from the discussion we should be having.

What should matter is a nominee’s scholarly record of accomplishment. Elena Kagan has never presided over a trial, true, but she has complied impressive curriculum vitae nonetheless, and this is what we should be examining. To that end, Eugene Volokh has done a very good job.

From her writings, discussed in Volokh’s piece, it appears that Kagan is a constitutional scholar, well steeped in First Amendment law, who will fall to the liberal side of the court somewhere safely between Ginsberg and Stevens. If anything, Elena Kagan on the bench will move the court further to the right.

While perhaps not as qualified in some realms as others, Kagan appears to be suitable for the job… and she is a safe nominee. Limbaugh and his ilk will oppose any nominee this administration proposes, so their comments can be added to the rest of the fertilizer they spew, but when the more reasonable media can’t find anything else to discuss, they are just wasting our time.

Time to move on, folks.

And as a sidebar, I personally don’t really care to think about ANY of those old codgers having sex… under ANY circumstance.


Old NFO said...

I'm more concerned about the lack of 'balance' as far as location/education... That will be three from NY/Harvard and the rest are Yale I believe. Those cannot be the only two schools with a good law school, and it's time for a Southerner or Westerner to get on the Court.

Mule Breath said...

NFO, there are plenty of reasons to question, but none that rise to the level of disqualification.

Yale and Harvard: the two most preeminent law schools in the nation; probably #1 and #2 on the short list. Certainly there are others, but just the fact that all the Justices were educated at one or the other fails to create evidence of "stacking." Folks from all over the nation seek entry into those institutions, and (supposedly) only the best of the best qualify.

Geography: Perhaps slightly more of a concern, at least considering Obama's call for a Justice who can connect with the people, but still no reason for disqualification. The law is the law regardless of geography, and any candidate from any area of the country should apply the law in the same manner.

You're not alone in these concerns though, as a Google search of Blogger alone reveals 16,011 posts discussing the topics.

Sorry NFO, but in my mind these memes just don't fly. Kagan, while possibly not the best of possible choices, remains a qualified candidate.

I would have preferred that Leah Ward Sears got the nomination. Georgia Chief Justice Sears was the first black woman to serve as a Superior Court Justice in that state, and when appointed by Zell Miller in 1992, she was the youngest person and the first woman ever to serve on Georgia's Supreme Court.Later she became the first woman to win a contested state-wide judicial election went on to win many more contested elections. Her judicial record is almost unimpeachable.

With degrees from Cornell and Emory, Justice Sears would have quieted all this meme about Harvard and geography.

Would these facts diminish the outcry from the right to any measurable degree?

likely not.