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Elena Kagan: From trailblazer to less of a big deal

The first woman to be dean of Harvard Law School. The first woman to be solicitor general.

But: the fourth woman, if she is confirmed, on the Supreme Court. The third woman among the current justices.

The arc of women’s progress is measured by Elena Kagan’s transition from anomaly to norm, from trailblazer to just another. Well, more than just another -- a Supreme Court nominee never is -- but less of a big deal.

And no big deal is what makes Kagan’s nomination such a welcome moment. There is certainly no going back to a court with a lone female justice, probably no going back to a court with only two women.

It represents, as Justice Ruth Bader Ginsburg said the day of her nomination, “the end of the days when women, at least half the talent pool in our society, appear in high places only as one-at-a-time performers."

For 12 years, until Ginsburg joined the court, Sandra Day O’Connor was its one-at-a-time performer. For three long years, after O’Connor’s retirement and before Sonia Sotomayor’s selection, Ginsburg was the soloist.

The overlong era of firsts is coming, happily, to a close where women are concerned. Not completely -- there are a few hard ceilings yet to crack -- but mostly. I happened to be at a working dinner the other day at which I was the only woman, and I think the men were more uncomfortable about the gender imbalance than I was. The new abnormal is a situation where there aren’t a reasonable number of women present.

Why does this matter? On an institution like the court, symbolism counts -- something, by the way, the justices ought to have paid more attention to when they closed the court’s majestic front entrance. A token woman or two conveys a different message than a solid plurality, a critical mass.

As to results, I’d hope the answer is: not very much. It’s too bad that, assuming Kagan is confirmed, the three women justices are apt to be part of its liberal wing. Women come in different ideological stripes.

A study of female federal appellate judges by Christina Boyd, Lee Epstein and Andrew Martin published this year in the American Journal of Political Science found no significant gender difference in an array of cases -- including, perhaps surprisingly, sexual harassment, abortion and affirmative action.

The exception came in claims of sex discrimination, in which, the authors said, “not only do males and females bring distinct approaches to these cases, but the presence of a female on a panel actually causes male judges to vote in a way they otherwise would not -- in favor of plaintiffs.”

Kagan’s nomination raises another, somewhat uncomfortable question: what to make of the fact that, assuming she is confirmed, two of the three women on the court will be unmarried and childless. The obvious inference is that marriage and motherhood are not particularly compatible with the relentless career path required to achieve that level of success.

Obvious, but, I think, wrong. I was prepared to draw this conclusion, until I went through the biographies of the nearly 50 women now serving on federal appeals courts. The overwhelming majority are (or, in some cases, were) married and have children. If there is a difference between male and female appeals court judges in terms of family status, it’s not a glaring one. Those of us mommies who aren’t Supreme Court justices are going to have to come up with a different excuse than our kids.

The only thing worse than not having women adequately represented in positions of importance is having inadequate women represented there. Selecting someone manifestly unqualified just because she is a woman is more offensive than not selecting a woman at all. Sarah Palin as vice presidential nominee and, more to the point, Harriet Miers as Supreme Court nominee, come to mind.

I know Kagan and consider her a friend. The notion that she is President Obama’s Miers is ludicrous. She clerked on the federal appeals court and the Supreme Court. She has taught law and served as solicitor general.

To those who complain about the paucity of her publicly stated views on legal issues: blame Republicans. If they had confirmed Kagan when she was nominated to the federal appeals court by President Clinton, they’d have a juicier paper trail to pick apart today.

By Ruth Marcus  | May 10, 2010; 10:20 AM ET
Categories:  Marcus  | Tags:  Ruth Marcus  
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Comments

there is one more first we have not seen yet...
a politician or justice that really care about the American citizen and worker...
when do we get one of them...

Posted by: DwightCollins | May 10, 2010 11:12 AM | Report abuse

I think the Senate Judiciary Committee could probably use Betty White:
http://www.youtube.com/watch?v=aVanPmd5buI

Posted by: britethorn | May 10, 2010 11:20 AM | Report abuse

Interpretation of the Constitution and the laws of the US hang in the balance for every decision of the Supreme Court. I hope all will decide her merits based upon reality and not fiction nor pro this or anti that. Anyone who has survived that halls of Harvard School of Law is an incredible acheivement and should be applauded as a hallmark for any one. It shows just how well thought of she is in the Law community. I hope that does not get lost in the coming weeks and months of testimony.

Posted by: akousen | May 10, 2010 11:32 AM | Report abuse

I think we can be greatful that Obama has given careful consideration to appointments for SCOTUS that will provide balance and diversity to a court that has proved anything but; especially after the debacle of and glaring inadequacy of Harriet Miers, neither of which appear in evidence in Elena Kagan. I would support any jurist that has the credentials to bring insight and intelligence to the court regardless of gender/race. It appears that Ms. Kagan has both well in hand.

Posted by: JenAZ | May 10, 2010 11:50 AM | Report abuse

From comments here and elsewhere, it appears this person is very well know in a very small circle of the elite ...

Are there no intersting candidates from average America?

Posted by: sally62 | May 10, 2010 12:16 PM | Report abuse

Oh yeah, because if Kagan gets nominated a whopping 3.6% of all Justices will have been women. So no big deal...

Ms. Marcus, what are you thinking?

Posted by: melissataurus | May 10, 2010 12:22 PM | Report abuse

we will not rest until we have a transgender nationalized justice!

Posted by: simonsays1 | May 10, 2010 12:22 PM | Report abuse


From comments here and elsewhere, it appears this person is very well know in a very small circle of the elite ...

Are there no intersting candidates from average America?

Posted by: sally62 | May 10, 2010 12:16 PM |
_______________________________________
I have seen "average America" I most certainly do NOT want one on the supreme court! The "Small Circle of Elite" that you speak of would be the intelligent people. I know, it's a shame, but it's the truth. Average America has no clue.

Posted by: biggirl90 | May 10, 2010 12:34 PM | Report abuse

"Are there no intersting candidates from average America?

Posted by: sally62"

Sally, get real. Average Americans do not have the intelligence, the education, or the drive to succeed that are required in a Supreme Court justice. But we need dedicated city council members, law enforcement officers, teachers, etc too. In fact, we NEED a lot more average Americans serving our country than we have available.

Posted by: dotellen | May 10, 2010 12:41 PM | Report abuse

"The only thing worse than not having women adequately represented in positions of importance is having inadequate women represented there. Selecting someone manifestly unqualified just because she is a woman is more offensive than not selecting a woman at all. Sarah Palin as vice presidential nominee and, more to the point, Harriet Miers as Supreme Court nominee, come to mind. "

Point taken about qualified vs. unqualified and bringing Palin into the debate.

However I am still looking through the history books to see how a US Senator with a 14 month tenure qualifies to be President of the USA.

The election is over - I know. But if you are going to bring up what you brought up in your article - then this fact has to be addressed.

.

Posted by: oldnova | May 10, 2010 12:48 PM | Report abuse

Hooray! We're past sexism! Women have proven what we all have known to be true for a long time--they can acheive just as much as men.

So can we also say, with the election of our current President, that we're done with the backwards thinking that people of other races are incapable of performing at a high level, academically and professionally?

And finally coming to our sanity, can we finally do away with the practice of coddling of certain peoples in college admissions? Lets practice what we preach.

Posted by: ronibwh | May 10, 2010 1:14 PM | Report abuse

..touche' oldnova...

As usual Marcus, your flawed logic never fails to yield humor:

"To those who complain about the paucity of her publicly stated views on legal issues: blame Republicans. If they had confirmed Kagan when she was nominated to the federal appeals court by President Clinton, they’d have a juicier paper trail to pick apart today."

So I should approve someone for a judgeship that I think is not qualified so that I can confirm that my thinking was correct later? That might make sense in the WaPo world Ruth, but not in the real world.

Posted by: flintston | May 10, 2010 1:18 PM | Report abuse

flintston: her lack of publicly stated views because she wasn't approved for her previous nomination was to a different point - that Republicans won't have that as ammunition and it's their own fault. lack of judicial experience nearly irrelevant to the Supreme Court. Not that I want a court comprised of law professors, deans, or Solicitor Generals, but someone who has done all three is at least as qualified as your average circuit appellate judge.

Posted by: JoeT1 | May 10, 2010 2:01 PM | Report abuse

I don't want an "average" American on the Supreme Court. I want a highly educated person, who knows the Constitution and has argued cases in the Supreme Court. I want a Harvard Law graduate, not someone from an "average" American university. The best talent at graduate school congregates at the best schools. That means Ivy League and beyond, not Bing Drinker State University.

Our leaders must be able to think clearly, more so than the rest of us. They must also possess empathy, maturity and resourcefulness. Kagan seems to possess all of it.

Finally, President Obama has a responsibility to try to balance the Supreme Court. During the past forty years, the Supreme Court has shifted ideologically to the right. The 5-4 conservative majority has been remarkably active in legislating from the bench on wide-ranging issues. But, the nomination of Kagan will not chance this conservative judicial activism. After all, she’s only replacing another left-leaning justice. And, Kagan could turn out to be surprisingly more centrist than some conservatives currently believe. She is an excellent choice.

Charles Weinblatt
Author, Jacob’s Courage
http://jacobscourage.wordpress.com/


Posted by: csw18 | May 10, 2010 2:53 PM | Report abuse

Once again, the people of the United States are underserved by a selection by the ruling class from the ruling class for a higher rank in the ruling class.

Posted by: 6thandD | May 10, 2010 3:02 PM | Report abuse

Once again, the people of the United States are underserved by a selection by the ruling class from the ruling class for a higher rank in the ruling class.

Posted by: 6thandD
********************
Yeah, 'cause some Joe Da Plumber type is just what a judicial body deliberating serious cases needs. Faux populism has its limits, you know...

Posted by: LABC | May 10, 2010 3:25 PM | Report abuse

I agree with writer Charles Weinbratt. I want a supreme court justice who is top of class at a prestigious law school (like Harvard), has strong analytical skills, empathy and is a well known law practitioner. Elena Kagan fits the job. We the people deserve the best of the best in the supreme court.

Posted by: rmorris391 | May 10, 2010 3:25 PM | Report abuse

Average American? Ruling classes? Do you know how many "average Americans" signed the Declaration of Independence?

They were lawyers, plantation owners, doctors, and "merchants," including one Samuel Adams. No "average" stuff there. Great things are done by great people.

http://www.usconstitution.net/declarsigndata.html

Posted by: HookedOnThePost | May 10, 2010 3:29 PM | Report abuse

Ruling class? Her mother was an elementary school teacher. Her father was a lawyer who protected tenants from unscrupulous landlords in New York. She grew up in Brooklyn, not Long Island.

Do some background research before you complain about someone who has worked harder and accomplished more than you.

Posted by: HookedOnThePost | May 10, 2010 3:35 PM | Report abuse

From comments here and elsewhere, it appears this person is very well know in a very small circle of the elite ...

Are there no intersting candidates from average America?
///////////////////////////////////////

Average Americans, the people, lost controll of the government in August 1974.
Since then its been rule by and for the elite by both parties.
Where have you been?

Posted by: WilliamBlake | May 10, 2010 3:36 PM | Report abuse

The LAST thing we need is another 'pointy headed' academic from Harvard and a resident of NYC to boot, we already have plenty of these, when does the OTHER 99% of the country get some representation ???

Graduating from Harvard should be an automatic DIS-QUALIFICATION for any public service based on the record of those from that institution....

Posted by: killerm | May 10, 2010 3:56 PM | Report abuse

For all of those beating the "anti-elitist" and "populist" drums:

Do you want your brain surgeon to be just another "average American?" Should your professor know JUST a little more than you? How about if the Chairman of the Joint Chiefs of Staff were a Joe-the-Plumber-clone poster child for mediocrity?

While it is COMPLETELY true that law schools other than Harvard and Yale have produced and continue to produce jurists worthy of sitting on SCOTUS and that graduating from an "elite" law school should NOT be an iron-clad qualification, neither should it be a DISqualification, as killerm asserts.

If you want to hate those dreaded elitists, why not go after those Wall Street "master of the universe" truly elitist types and their Congressional enablers (historically majority Republican!). Gawd . . . .

Posted by: post_reader_in_wv | May 10, 2010 4:34 PM | Report abuse

Ah, just more Democrat Totalitarianism.

Leftys, we're coming for you. 11/2/2010
175 days and a wakeup to go. Hang in there United States! The voters are awake, pissed off, and fed up with Washington!

Posted by: 50Eagle | May 10, 2010 4:55 PM | Report abuse

It would be nice to have an atheist on the court. Someone to represent the 20% of Americans that have outgrown bronze age fairy tails. And preferably someone that didn't graduate from Harvard, Princeton or Yale. How about a graduate of Stanford or Duke's law program.

Posted by: tylerdurden1 | May 10, 2010 5:36 PM | Report abuse

Who writes the Post's web headlines? Awful.

Posted by: monk4hall | May 10, 2010 5:53 PM | Report abuse

Average Americans lost control because Nixon resigned? Please explain that one Mr Blake.

Posted by: tylerdurden1 | May 10, 2010 5:54 PM | Report abuse

http://www.accuracy.org/newsrelease.php?articleId=2224

BTW, to the president, covering up for a couple fellow liberal travelers is just alright by him.

This Kagen issue will be dismissed amid the cries of sexism, hatred, and racism. I am not sure why racism will be claimed, but most issues that liberals disagree about, they start calling the messenger of the message they cannot argue with, a racist. So I figure that anyone who points out problems with Kagen will be called the same three things that always used. It speaks poorly of her, that she had precedent, solid evidence, and a path for an equitable resolution, but she chose to depart from the norm and exonerate the fellow travelers who plagiarized, Tribe and Ogletree.

Posted by: thelaw1 | May 10, 2010 6:21 PM | Report abuse

Attending Harvard only means one's family could afford the top name brand name (Boars Head Ham ) in education. It dosen't mean more intelligent.

Posted by: mikeperryst | May 10, 2010 6:57 PM | Report abuse

Average American? Ruling classes? Do you know how many "average Americans" signed the Declaration of Independence?

They were lawyers, plantation owners, doctors, and "merchants," including one Samuel Adams. No "average" stuff there. Great things are done by great people.

http://www.usconstitution.net/declarsigndata.html
//////////////////////////////
The average american guy is great people, you prig.
What makes those people more outstanding than the people they were representing?

Posted by: WilliamBlake | May 10, 2010 7:33 PM | Report abuse


Attending Harvard only means one's family could afford the top name brand name (Boars Head Ham ) in education. It dosen't mean more intelligent.

Posted by: mikeperryst

~~~~~~~~~~~~~~~~~~~~~~

We learned that with Bush. Thank God we have an intelligent President in the White House now.

Posted by: camera_eye_11 | May 10, 2010 8:30 PM | Report abuse

Marcus is wrong about the glass ceiling; it's very much in tact. Worse, those women, the majority, whose feet are firmly on the floor, are still earning 70 cents to every male dollar earned.

At the same time, female college, graduate, and professional school graduation rates exceed those of men, and women perform better.

There has been a tendency, among many women, to declare women's rights a dead issue, most visible recently during the Clinton campaign for the presidency. Ironically, throughout the competition, she was vilified for her appearance, clothing, etc. It was an embarrassing wave of sexism, commented upon internationally.

Mommies and daddies can serve on the Supreme Court, but I suspect daddies will always have an easier time as it is still generally mothers who are responsible for child-rearing.

But parenting isn't at issue here; discrimination is. Kagan seems a fairly good choice at this point, but her lack of judicial experience is a concern. If she is not appointed, then another woman should be.

Perhaps, when the majority on the court are women, they will not confront the kind of sexism, Ginzburg has.

Posted by: FarnazMansouri | May 10, 2010 8:32 PM | Report abuse

Marcus is wrong about the glass ceiling; it's very much in tact. Worse, those women, the majority, whose feet are firmly on the floor, are still earning 70 cents to every male dollar earned.

At the same time, female college, graduate, and professional school graduation rates exceed those of men, and women perform better.

There has been a tendency, among many women, to declare women's rights a dead issue, most visible recently during the Clinton campaign for the presidency. Ironically, throughout the competition, she was vilified for her appearance, clothing, etc. It was an embarrassing wave of sexism, commented upon internationally.

Mommies and daddies can serve on the Supreme Court, but I suspect daddies will always have an easier time as it is still generally mothers who are responsible for child-rearing.

But parenting isn't at issue here; discrimination is. Kagan seems a fairly good choice at this point, but her lack of judicial experience is a concern. If she is not appointed, then another woman should be.

Perhaps, when the majority on the court are women, they will not confront the kind of sexism, Ginzburg has.

Posted by: FarnazMansouri | May 10, 2010 8:33 PM | Report abuse

So you would say that this Miers would have a slavish devotion to the Bush administration but Kagan would not have a slavish devotion to the (ugh) Obama administration.Both Miers and Kagan devotion to thier president may be true to a degree.There's one big difference between them,Miers is pro American and would uphold The Bill Of Rights and The Constitution of the United States.Kagan on the other hand will end up doing what ever whim this president desides should be changed in our fore-father's structure of our great country.Is it possible she may have connections with some Muslim terrorists as well? Anything this president puts his stamp of approval on can only bring this country down to a Third World status.What sickens me even more is that V.P. Biden is going along with all of this.I truely believed him to be a red blooded American and cared for our country.Guess Obama sucked all the blood and backbone out of his body making him more a zombie than an American.Shame on him for turning his back away and kissing the turd covered foot of his anointed leader.If he doesn't wake up out of his zombie state he will as well feel the harsh wrath of the majority.You know the over 80% of the citizens who are totally digusted with this heretic YOU would call the president.Yes! you will say that the majority voted this thing into office.Well he sold us all on an idea that he would make us all a better country.Now that it's in office, he's selling the country right from under us. You! Biden,Pelosi, Ried, Kagan and the rest of the Democratic party that sided with him will find your just reward in Hell as that is where this anti-Christ is leading us.If there is but a hint of Christian compassion in any of the Democratic party, I ask you to please turn your back on this president before you suffer eternal damnation for your part in his plot to destroy our Christian heritage.No Christian pledges allegiance with thier left hand,do you mr V.P.? I'm sure Pelosi does though as she is pure evil.

Posted by: dollar_bil2 | May 10, 2010 8:50 PM | Report abuse

To those who complain about the paucity of her publicly stated views on legal issues: blame Republicans. If they had confirmed Kagan when she was nominated to the federal appeals court by President Clinton, they’d have a juicier paper trail to pick apart today.


-- Oh stop. NO ONE reveals their record anymore, and that's due to Kennedy's rape of Bork during his nomination process.

Posted by: enaughton27 | May 10, 2010 9:06 PM | Report abuse

As a woman what bothers me the most is the fact that the first two women on the Court were wives and mothers. They balanced it all, and showed young girls and other professional women that they didn't have to sacrifice it all to follow your career dreams.

Let's be frank- Justice Ginsberg is not healthy. Her time is coming to retire. The two remaining women Justices will be unmarried and childless. Hardly the role models for girls of today. That is the shame of the women's movement, that it seems like being a wife and mother is no longer necessary. The men on the bench didn't give up their personal lives for their ambition?

Posted by: jiboo | May 10, 2010 9:30 PM | Report abuse

The question I have regarding her limited (but elite) background isn't so much about why she is or isn't "qualified" (anyone could figure it out), as much as it questions how certain people are chosen early in their lives or careers to be part of some elite network of power. We assume people in such positions rise to said positions due to some inherent exceptionality when in fact behind the curtain lies the Bourdieu-ian structure that claims and maintains power in the forms of economic, social, and cultural capital.

Posted by: Canton55 | May 10, 2010 10:18 PM | Report abuse

We've had enough of the Harvard jet-set...the mental midget automatons who have never had an original thought in their lives...anti-American slobs.

No taco-smacking, muff munching, Dumb-azz-worshipping fool.

Posted by: joesmithdefend | May 10, 2010 10:50 PM | Report abuse

I sincerely regret we pay so much respect to folks who are openly gay; but, in this case, I guess we should be grateful she's not both gay and muslim. Obama could have done US a double whammy if he had taken his time and not rushed.

Posted by: GordonShumway | May 10, 2010 11:08 PM | Report abuse

How does her success really make her different from the success of many other women across society and the legal profession? Where is the uniqueness? Where is the cause for the betterment of society? Even Sotomayor had that, let's face it. So, she is a hard worker and driven to succeed. So, she is female and not male. Is that really good enough?

Posted by: magnifco1000 | May 10, 2010 11:16 PM | Report abuse

I see the Post does not want any comments on the Socialist appointment at the Supreme Court. Comments closed. Why ?

Posted by: Imarkex | May 10, 2010 11:27 PM | Report abuse

Is Gordon Shumway trying to inflame anti-gay, anti-Muslim sentiment?

Posted by: metonyme | May 10, 2010 11:48 PM | Report abuse

This is very dangerous. We have far too many judges and lawmakers that put Rabbinic law above US law. Far too many that put their allegiance to Israel above their allegiance to the USA.

Posted by: brattykathyi1 | May 11, 2010 12:24 AM | Report abuse

Is Gordon Shumway trying to inflame anti-gay, anti-Muslim sentiment?

Posted by: metonyme | May 11, 2010 8:44 AM | Report abuse

Kagan is a lawyer. Why only lawyers or gubm'nt officials for the USSC? There is no proof that only they know the law enough to be good jurists.

A nominee need not know the whole body to form an intelligent opinion; No one person knows all of the law anyway; Therefore, each nominee in history knew only a particular portion of the whole body of law, perhaps focusing on a specialty, and knew no more at the time of confirmation.

In America, public servants come from the people, with USSC qualifications minimal. Therefore, a farmer or doctor would be qualified, just as he/she would qualify for the presidency.

Just as the president relies on staff, so does any USSC justice. Just as a president relies on advisors, justices rely on interns, assistants, and clerks. One may be better in logic, one on history of jurisprudence, while another on clear writing technique. No person is an island.

A farmer or doctor who runs his/her organization knows how administer justice and the staff, how to delegate tasks, and prioritize issues based on fair play. These experiences and education, are transferable in a general way to the USSC. Therefore, the parts of the law that a farmer does not know, he/she can learn.

A small, non-corpo farmer's perspective would serve to round out the perspective of the perhaps overly-educated and out-of-touch justices, those picked from the ivory tower's non-stop conveyor belt.

It's time to visit this issue, and reevaluate the exclusionary practice that rejects upstanding and intelligent members of other disciplines.

Posted by: vanax | May 12, 2010 2:41 AM | Report abuse

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