The Kagan Nomination


Solicitor General Elena Kagan’s qualifications for the Supreme Court — she was appointed by President Barack Obama this week to replace the retiring Justice John Paul Stevens — will be judged by the Senate as part of the confirmation process. No doubt Jewish groups with very different positions on church-state questions and issues such as abortion and homosexual rights will weigh in when deliberations begin.

What we can say with certainty is that her nomination, and the public and media reaction to it, represents another milestone for an American Jewish community once held back by pernicious, if not always overt, anti-Semitism.

If confirmed, Kagan, the former Harvard Law dean and Clinton administration official, will become the third Jew on the High Court, joining Justice Ruth Bader Ginsburg and Justice Stephen Breyer on the bench next term. That means fully one-third of the justices will be Jewish — coming from a community that represents only about 2 percent of the overall population.

Remarkably, while Kagan’s Jewishness has been a matter of interest to some — mostly in our own community — it has been a source of controversy to only the tiniest fringes.

Sure, anti-Semitic Web sites were quick to trumpet her background as yet more proof of sinister Jewish conspiracies, but to most of the nation what matters are her positions on the nation’s hot-button issues. The fact that, if approved, she will also be the third woman on the Court is getting more attention than her Jewish background.

That change is not all for the good. Ideology has become our overwhelming focus in judging judges; too often lost in the bitter arguments that ensue are questions of judicial temperament and judgment. The judiciary was intended to stand apart from the political fray, using the Constitution as a guide rather than swings in public opinion and political mood. One wonders how many exceptional candidates are bypassed simply because they could not pass some ephemeral political litmus test.

But enough kvetching for now. From a parochial point of view the Kagan nomination is a source of justifiable pride. More importantly, it represents yet another clear sign that America is coming closer to fulfilling a democratic promise of full equality that our community has taken as an article of faith for generations. As a nation, we still have a long way to go to ensure that promise is fulfilled for every group, every minority. But Jewish achievement, spotlighted by the Kagan nomination this week, tells us just how far we’ve come.

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