At the center of our current crisis is not the recession, or terrorism, or an oil spill in the Gulf, as challenging as each of them are. It is a dearth of leadership. While our president struggles to find his voice, it is unlikely, given the election cycle and a news cycle that assures his shoes will be covered with tar balls for months to come, that he will regain his mandate for hope and change. And Congress has already proven its own hopelessness addled by anger, pettiness and rectitude. It only leads in ineptitude. That leaves only one other branch of government with both the authority and aptitude to lead: the United States Supreme Court, and the prospects there are fading too, suffering under the pall of partisan homogenization.
This week’s number is 160,000. That’s the number of pages of documents – mostly emails – the White House has released to reveal the essence of Supreme Court nominee Elena Kagan’s mind. The early analysis provided by the Washington Post[1] is that there is hardly anything controversial or alarming in either her past or her mind, leaving little for Congress to bicker about. She is a benign product of an intellectually and liberally ambitious middle class family. She is highly educated and has most of the politically correct boxes ticked on her resume. She’s hard not to like; assuming one could know her well enough to have an opinion. I expect her childhood classmates are not particularly surprised she is where she is today – just after they answer the question Elena who? Unless there is an undisclosed tawdry tale or militant link to Roe (and not Wade), Kagan is a shoe-in for confirmation on a court populated exclusively by Ivy League alumni. Therein lies the problem.
Once Kagan is sworn in, all of our justices will have been reared and educated in a corridor of thought defined by the same few but highly contentious issues that have been debated from the Back Bay of Boston to the boroughs of New York to the hunt clubs of the Potomac for generations. As much as Kagan will likely disagree with Roberts, Alito, Thomas, Kennedy, and Scalia, and more often agree with Ginsburg, Breyer, and Sotomayor, the larger issue is one of human context, which is now as narrow as the differential of predictable 5 to 4 decisions. While deliberations of the new court will likely have all the luster of the great marble walls of the Court, they will also lack the grit, blemishes, and fractures that make Americans both gloriously unique and at times, unseemly. They will be formed in an ivy-covered vacuum where every argument is as worn and frail as the texts that support them. Many will find comfort in this – many will argue courts should be so boring. But maybe it’s time for the judiciary to lead. It has before, as Justices like Earl Warren (Cal-Berkeley), Thurgood Marshall (Howard University), Warren Burger (William Mitchell College), and Sandra Day O’Conner (Stanford) led the nation from the bench by both deed and judgment. In their day, the nation not only survived, it progressed.
This country needs leadership. What we face today is a court of no new ideas or inspirations; notwithstanding the occasional juvenile power impulse of the majority, as we saw in the Roberts/Alito judicial coup, which restored the corporate cash drawer to an electoral status it hasn’t enjoyed for more than 100 years. Kagan’s nomination may assure confirmation, but it falls well short of the spirit the Founders hoped to find in the our halls of justice where ‘We the People’ is best served by including the largest human context possible. It’s time to shake the place up – to speak up and out about the future of the nation. The only folks doing that today are far from qualified – unless selfish anger is a prerequisite for brilliance. If we are to honor the motto on our Great Seal – E Pluribus Unum – ‘out of many, one,’ we better preserve the ‘many’ so as not to suffer the narrow context of the few, however inoffensive they appear in tens of thousands of pages of emails. If we quash leadership at every opportunity the majestic marble halls of Washington DC will become the antiquities of tomorrow – auctioned off to the plutocrats of Wall Street as quaint memorabilia of a great society that died of systemic indifference.
[1] Julie Hirschfeld Davis, “Kagan Unscathed After Revelations From Past,” The Associated Press in The Washington Post, June 19, 2010.
Hi William,
ReplyDeleteThoughtful post, as usual. Given your choice of thesis topic, I am wondering what you think about the religious composition of the Court and its bearing on the Court's interpretation of the constitution. From what you've read, does a justice's faith have a bearing on his/her decision-making and if it does, what does that mean for a constitution that was founded on principles of the Enlightenment (when there are no Protestant justices on the Court)?
paula
PS In looking for answers on this myself, I have found a book coming out in November from Princeton ... The Religious Enlightenment:
ReplyDeleteProtestants, Jews, and Catholics from London to Vienna by David Sorkin.
It concerns me that there will not be a third ideological background amongst the judges to keep extremism from the other two at bay. If they come from the same Ivy-walled places, then in order to distinguish their positions, they will reply upon something else. Maybe it won't be a factor? (After you finish with presidential ideologies, perhaps you'll give the Judicial branch a whirl?)
Excellent question about the religious composition of the Court. Homogeneity along any dimension is concerning. If for no other reason, it obviates what the nine-member design is meant to foster: diversity. And, as you point out, justices may reach for other ideological factors to distinguish themselvs - including religion.
ReplyDeleteI have found constructing ideology at the individual level is difficult but doable. One must weigh different contributing processes like education, professional experience, socialization and indoctrination, then make judgments as to relative influence. Expression of certain aspects of ideological makeup are also constrained or amplified by exogenous variables.
What I am quite sure of is that since 1975 religion has been fully ensconced in the political sphere in the U.S. after a long period of remaining in the private and public spheres (after the Scopes Trial in 1925). It is likely then, that religious beliefs and convictions will operate more actively in decision making without risk of ridicule. But, unlike a president, who can achieve a position of ideological dominance (especially in foreign policy) a justice would be easily kept in check by the nine-member design.
Curiously, I have not heard much uproar from the Christian nationalists over the lack of a Protestant justice (once Kagan is affirmed). My own theory on this is that they are strategically focused on other targets of power/influence - at least while they do not have control of the executive branch or the Senate.
I would, however, like to apply my methodology to members of the Court in the future. It is attractive for many reasons; including the fact that nothing is classified!