Commentary Magazine


Topic: Sandra Day O’Connor

Is Kagan the Left’s O’Connor?

Michael Gerson writes:

Kagan has been a leader in the field of law without having a distinctive legal voice. She has been a leader in academia without having left a discernible academic mark. We know little about her views and values — and we are not intended to know much about them. This has become the path of least resistance to the Supreme Court — being eminent without being conspicuous. …

Yet Kagan’s expansive silence leaves a broad range of plausible interpretations. Is she a temperamental moderate who doesn’t like comprehensive pronouncements or judicial activism of any kind? Is she a consensus-oriented liberal who will be able to pull Justice Anthony Kennedy to the left on key votes? Is she is a committed progressive who has carefully hidden her views? Is it possible Kagan lacks any well-formed constitutional perspective at all? Who knows? Who could possibly know?

Conservatives are tempted to scoff — Obama wouldn’t have nominated anyone he had any doubt was a committed judicial activist, right? Let’s be honest: Kagan’s a Democrat and a liberal — we know that from her service in two administrations and her plentiful political donations to Democratic candidates. But the problem with ciphers — as Obama should know all too well — is that they have the ability to convince diametrically opposing combatants that they are “with you.”

So we don’t know how doctrinaire or malleable she is and how much respect she has for precedent. Is she going to be the left’s Sandra Day O’Connor or its Clarence Thomas? For conservatives, it’s nice to think we have a chance to see the other side “waste” a Supreme Court pick for a change. But we shouldn’t bank on it.

Michael Gerson writes:

Kagan has been a leader in the field of law without having a distinctive legal voice. She has been a leader in academia without having left a discernible academic mark. We know little about her views and values — and we are not intended to know much about them. This has become the path of least resistance to the Supreme Court — being eminent without being conspicuous. …

Yet Kagan’s expansive silence leaves a broad range of plausible interpretations. Is she a temperamental moderate who doesn’t like comprehensive pronouncements or judicial activism of any kind? Is she a consensus-oriented liberal who will be able to pull Justice Anthony Kennedy to the left on key votes? Is she is a committed progressive who has carefully hidden her views? Is it possible Kagan lacks any well-formed constitutional perspective at all? Who knows? Who could possibly know?

Conservatives are tempted to scoff — Obama wouldn’t have nominated anyone he had any doubt was a committed judicial activist, right? Let’s be honest: Kagan’s a Democrat and a liberal — we know that from her service in two administrations and her plentiful political donations to Democratic candidates. But the problem with ciphers — as Obama should know all too well — is that they have the ability to convince diametrically opposing combatants that they are “with you.”

So we don’t know how doctrinaire or malleable she is and how much respect she has for precedent. Is she going to be the left’s Sandra Day O’Connor or its Clarence Thomas? For conservatives, it’s nice to think we have a chance to see the other side “waste” a Supreme Court pick for a change. But we shouldn’t bank on it.

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Wanted: Female Justice with Small Children (Pets a Plus)

Another Supreme Court nomination is in the works, so it’s time for another round of inanity on court appointments. The latest dose of condescension comes from Peter Beinart, who thinks it’s time for not just a woman but “a mom with kids.” (Is three better than two? What about a single mom? A divorced dad with sole custody?) Why does this matter — so they can decide cases in favor of women? No, really: he wants a woman justice “because female justices, on average, will be more sensitive to the problems women face. Since they will have likely encountered gender bias themselves, they will be more likely to support government action to remedy it.” In other words, they will violate their oath of office and give the gals a break. And then there is the old standby: we need more tokenism:

It’s not just that they may alleviate gender injustice through their rulings; they may alleviate it through their example as well. Just as Barack Obama empowers African-American kids to believe that there are no limits to what they can achieve, female Supreme Court justices send the same message to young women. As anyone who has ever watched their daughter eye a Barbie Doll can attest, role models matter.

Not Sarah Palin as VP, mind you. And Madeleine Albright, Condi Rice, and Hillary Clinton don’t suffice. Neither do the two women currently on the Court. More role models! But what’s with the kids? Beinart explains it’s the role models (again):

It’s important because otherwise, the message you’re sending young women is that they can achieve professionally, or they can have a family, but they can’t do both. And without quite realizing it, that is the message our government has been sending. According to the Census Bureau, 80 percent of American women over the age of 40 have children. But look at the women who have held Cabinet posts in the last three presidential administrations. Only two of the Clinton administration’s five female Cabinet secretaries had kids. (Attorney General Janet Reno got her job only after two women with children, Zoë Baird and Kimba Wood, were dinged for hiring illegal immigrants as nannies). In the Bush administration, the figure was two of seven. In the Obama administration, so far, it is two of four. And if Obama chooses Elena Kagan for the High Court, the figure there will be one of three.

There’s nothing wrong, of course, with appointing childless women (or men, for that matter) to high office. But our government is actually doing a pretty good job of providing role models for the 20 percent of American women who don’t want kids. Where it’s failing is in providing role models for the 80 percent that do.

But Sandra Day O’Connor had three children. Ruth Bader Ginsburg has two children. Don’t they count? Well, maybe they have to be young. So what we need is  a woman justice with at least two children under the age of 10 so that other women with children under the age of 10 will know that they too can be on the Supreme Court. Thunk.

Beinart is a smart fellow. So maybe this is a sly parody of the rampant racial and gender preferences that have overtaken Supreme Court selections. They have turned these into embarrassing “diversity” rackets in which the White House searches for the person most likely to tip the scales for this or that interest group or to bolster the self-esteem of some key demographic. So if Beinart meant to show up all that and urge us to get back to the old-fashioned notion of merit, then bravo! If not, he should be embarrassed.

Another Supreme Court nomination is in the works, so it’s time for another round of inanity on court appointments. The latest dose of condescension comes from Peter Beinart, who thinks it’s time for not just a woman but “a mom with kids.” (Is three better than two? What about a single mom? A divorced dad with sole custody?) Why does this matter — so they can decide cases in favor of women? No, really: he wants a woman justice “because female justices, on average, will be more sensitive to the problems women face. Since they will have likely encountered gender bias themselves, they will be more likely to support government action to remedy it.” In other words, they will violate their oath of office and give the gals a break. And then there is the old standby: we need more tokenism:

It’s not just that they may alleviate gender injustice through their rulings; they may alleviate it through their example as well. Just as Barack Obama empowers African-American kids to believe that there are no limits to what they can achieve, female Supreme Court justices send the same message to young women. As anyone who has ever watched their daughter eye a Barbie Doll can attest, role models matter.

Not Sarah Palin as VP, mind you. And Madeleine Albright, Condi Rice, and Hillary Clinton don’t suffice. Neither do the two women currently on the Court. More role models! But what’s with the kids? Beinart explains it’s the role models (again):

It’s important because otherwise, the message you’re sending young women is that they can achieve professionally, or they can have a family, but they can’t do both. And without quite realizing it, that is the message our government has been sending. According to the Census Bureau, 80 percent of American women over the age of 40 have children. But look at the women who have held Cabinet posts in the last three presidential administrations. Only two of the Clinton administration’s five female Cabinet secretaries had kids. (Attorney General Janet Reno got her job only after two women with children, Zoë Baird and Kimba Wood, were dinged for hiring illegal immigrants as nannies). In the Bush administration, the figure was two of seven. In the Obama administration, so far, it is two of four. And if Obama chooses Elena Kagan for the High Court, the figure there will be one of three.

There’s nothing wrong, of course, with appointing childless women (or men, for that matter) to high office. But our government is actually doing a pretty good job of providing role models for the 20 percent of American women who don’t want kids. Where it’s failing is in providing role models for the 80 percent that do.

But Sandra Day O’Connor had three children. Ruth Bader Ginsburg has two children. Don’t they count? Well, maybe they have to be young. So what we need is  a woman justice with at least two children under the age of 10 so that other women with children under the age of 10 will know that they too can be on the Supreme Court. Thunk.

Beinart is a smart fellow. So maybe this is a sly parody of the rampant racial and gender preferences that have overtaken Supreme Court selections. They have turned these into embarrassing “diversity” rackets in which the White House searches for the person most likely to tip the scales for this or that interest group or to bolster the self-esteem of some key demographic. So if Beinart meant to show up all that and urge us to get back to the old-fashioned notion of merit, then bravo! If not, he should be embarrassed.

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Post-Racial No More

So much for the post-racial presidency. This report explains:

The Obama administration has asked a federal appeals court to uphold a race-conscious admissions system at the University of Texas at Austin, aiming to stymie a lawsuit that conservatives hope will spur the Supreme Court to limit affirmative action at public colleges.

The Texas case tests a 2003 Supreme Court decision that upheld a race-conscious admissions system at the University of Michigan Law School. That ruling in Grutter v. Bollinger said the law school had “a compelling interest in attaining a diverse student body.” By a 5-4 vote, the court prohibited “outright racial balancing,” but said race could be a “plus” factor to build a “critical mass” of minority students.

Since Grutter — when then Justice Sandra Day O’Connor promised racial preferences would fade away (“We expect that 25 years from now the use of racial preferences will no longer be necessary to further the interest approved today.”) — universities have maintained a fiction, namely that race matters but isn’t the sole factor in admissions. Nevertheless, it matters enough to assure admission at elite schools of minority students whose test scores and grade point average are significantly worse than non-minority students. Given the Grutter roadmap (the requirement to show a “holistic” admissions approach), admissions officers and legal defenders of the thinly disguised racial-preference schemes must resort to verbal gymnastics to justify their programs:

Patricia Ohlendorf, vice president for legal affairs at the Austin campus, said many private and public universities take some account of race in admissions. Because blacks and Hispanics on average score lower on entrance exams than white and Asian-American applicants, universities have adopted affirmative-action programs to compensate.

“We think it is critical to being able to achieve the diverse institution that we think is important,” she said.

The Obama administration agrees. “[The] university’s effort to promote diversity is a paramount government objective,” says the brief filed by the Education and Justice departments. The administration disputed claims that Texas was simply engaging in raw racial preferences.

“The question is not whether an individual belongs to a racial group, but rather how an individual’s membership in any group may provide deeper understanding of the person’s record and experiences, as well as the contribution she can make to the school,” the brief says.

What?! This is just mumbo-jumbo. It’s not the individual’s race but that individual’s membership in a racial group that is of interest? An “individual’s membership in any group may provide deeper understanding of the person’s record and experiences, as well as the contribution she can make to the school”? Somehow, school admissions officers invariably achieve this “deeper understanding” especially for minority students, who have learned to provide just enough fodder in their applications to satisfy admissions officers that there is a rationale for allowing these students to leapfrog over more qualified peers.

The Fifth Circuit will decide if all of this rhetorical hocus-pocus is worthy of deference or whether, in the Obama era, it’s time to finally put an end to the racial-preference rackets. Unfortunately, the Court will find no encouragement from the not-at-all-post-racial president.

So much for the post-racial presidency. This report explains:

The Obama administration has asked a federal appeals court to uphold a race-conscious admissions system at the University of Texas at Austin, aiming to stymie a lawsuit that conservatives hope will spur the Supreme Court to limit affirmative action at public colleges.

The Texas case tests a 2003 Supreme Court decision that upheld a race-conscious admissions system at the University of Michigan Law School. That ruling in Grutter v. Bollinger said the law school had “a compelling interest in attaining a diverse student body.” By a 5-4 vote, the court prohibited “outright racial balancing,” but said race could be a “plus” factor to build a “critical mass” of minority students.

Since Grutter — when then Justice Sandra Day O’Connor promised racial preferences would fade away (“We expect that 25 years from now the use of racial preferences will no longer be necessary to further the interest approved today.”) — universities have maintained a fiction, namely that race matters but isn’t the sole factor in admissions. Nevertheless, it matters enough to assure admission at elite schools of minority students whose test scores and grade point average are significantly worse than non-minority students. Given the Grutter roadmap (the requirement to show a “holistic” admissions approach), admissions officers and legal defenders of the thinly disguised racial-preference schemes must resort to verbal gymnastics to justify their programs:

Patricia Ohlendorf, vice president for legal affairs at the Austin campus, said many private and public universities take some account of race in admissions. Because blacks and Hispanics on average score lower on entrance exams than white and Asian-American applicants, universities have adopted affirmative-action programs to compensate.

“We think it is critical to being able to achieve the diverse institution that we think is important,” she said.

The Obama administration agrees. “[The] university’s effort to promote diversity is a paramount government objective,” says the brief filed by the Education and Justice departments. The administration disputed claims that Texas was simply engaging in raw racial preferences.

“The question is not whether an individual belongs to a racial group, but rather how an individual’s membership in any group may provide deeper understanding of the person’s record and experiences, as well as the contribution she can make to the school,” the brief says.

What?! This is just mumbo-jumbo. It’s not the individual’s race but that individual’s membership in a racial group that is of interest? An “individual’s membership in any group may provide deeper understanding of the person’s record and experiences, as well as the contribution she can make to the school”? Somehow, school admissions officers invariably achieve this “deeper understanding” especially for minority students, who have learned to provide just enough fodder in their applications to satisfy admissions officers that there is a rationale for allowing these students to leapfrog over more qualified peers.

The Fifth Circuit will decide if all of this rhetorical hocus-pocus is worthy of deference or whether, in the Obama era, it’s time to finally put an end to the racial-preference rackets. Unfortunately, the Court will find no encouragement from the not-at-all-post-racial president.

Read Less