Kagan’s Nomination And What It Means


The argument that anti-Semitism still stifles Jewish achievement in modern America will be a little harder to make if President Barack Obama’s second Supreme Court nomination passes muster with the Senate.

The confirmation of Solicitor General Elena Kagan to fill the seat of retiring Justice John Paul Stevens would mean that fully one-third of the High Court justices will be Jewish come next October. Add to that 13 percent of the U.S. Senate and 7 percent of the House, and it will be difficult to argue that Jews have not achieved their rightful place in American life — and then some.

“The ‘shrei gevalt’ attitude we hear from some in the Jewish community seems wholly out of touch with reality,” said Marc Stern, the American Jewish Congress’ longtime legal and church-state specialist — who worked with Kagan on religious freedom issues in the 1990s.

But that breakthrough is also a two-edged sword, he said. The growing irrelevance of religion and ethnicity in judicial appointments could signal a new openness that the Jewish community will applaud — and yet which could ultimately reduce Jewish overrepresentation as other groups take their place in the top tiers of American government.

“We can’t expect the kind of disproportion we see now [in the Courts and in Congress] to continue forever,” Stern said. “But that’s a matter of demographics, not prejudice.”

The Kagan nomination has won praise from many political observers, who say the 50-year-old nominee will be easier to confirm than almost any other choice by a Democratic president, but her largely blank record on issue such as church-state separation has touched off uncertainty among some Jewish groups.

While they are unlikely to affect the confirmation outcome, some Democratic progressives are unhappy with a nomination that seems designed, at least in part, to blunt opposition from the right.

“The fact is, since President John F. Kennedy, every Supreme Court appointee has been at least somewhat more conservative than the justice he or she is replacing,” said Colby College political scientist L. Sandy Maisel. “From everything we know now, that’s also true of Kagan.”

Historically, the Kagan nomination reflects a Jewish community that has moved far beyond the strictures of unspoken quotas and blatant prejudice.

“What this tells us is that religion is not the key dividing line in the country,” said Brandeis University historian Jonathan Sarna.

In early America, geography was a determining factor in Supreme Court nominations, he said — “how many Northerners and Southerners, the geographic balance: those were the important considerations.”

The appointment of the first Catholic to the High Court in 1836 and rampant anti-Catholic sentiment at the end of the century focused more attention on religion, which increased again with the appointment of Justice Louis Brandeis, the first Jewish justice (for whom Sarna’s employer is named), in 1916.

But today “it’s all about the ideological breakdown — how many liberals, how many conservatives and how many centrists,” Sarna said. “There’s less and less interest in the religion of the justices; only the Jews really look at this. What we’re seeing is a normalization of being Jewish.”

Sarna said it also helps that Kagan — like Justice Stephen Breyer — seems “not deeply connected to the Jewish community. To have a [Orthodox] Nathan Lewin appointed to the Court — someone deeply knowledgeable in Jewish law — that would have been a real breakthrough.”

Sarna and others pointed out that a Supreme Court that’s one-third Jewish, while seemingly disproportionate, mirrors the strong Jewish presence in the legal world.

“If you look at major law school faculties, that’s about the proportion of Jews,” said Steven Pease, author of “The Golden Age of Jewish Achievement: The Compendium of a Culture, a People, and Their Stunning Performance” (Deucalion, 2009).

Pease also cited a decline in the view that “religion shapes one’s views. What’s really intriguing is the extent to which non-Jews think this nomination is perfectly all right, thank you very much. In many ways we are becoming a much more tolerant nation.”

The lack of any real opposition to another Jewish justice shouldn’t have been surprising, given the indifference to the issue that greeted the 1994 nomination of Justice Stephen Breyer, who in joining Justice Ruth Bader Ginsburg, broke the solitary “Jewish seat” tradition of the Court that began with Brandeis — with a 24-year gap after the resignation of Justice Abe Fortas in 1969.

What’s more surprising is the absence of protest from Christian groups about the fact that if Kagan is confirmed, there will be no Protestants on the Court for the first time in U.S. history.

“It seems pretty close to irrelevant in the Protestant world,” said Mark Silk, professor of religion in public life at Trinity College, who called religious issues in nomination fights a “complex dance.”

Religious moderation is more important in public opinion than religion or denomination, Silk said.

“It’s where you fall on the religious spectrum,” he said. “People want nominees to be religious, but if you’re an Orthodox type — whether an Orthodox Jew or an Evangelical Protestant — there will be more questions asked. If someone who represented Agudath Israel was nominated, there would be a lot more people who would be upset — including many Jews.”


Kagan’s lack of a judicial record — she is the first non-judge nominated to the Court since William Rehnquist was appointed in 1972 — and her thin publication history means her views on issues critical to Jewish groups are unclear; Jewish groups ranging from the Orthodox Union to the Reform movement hope to use Senate Judiciary Committee hearings to bring that blurry picture into better focus.

Rabbi David Saperstein, director of the Religious Action Center of Reform Judaism, said Jewish groups are focusing on a memo Kagan wrote during her tenure as clerk to the late Justice Thurgood Marshall “indicating a tough position on government funding for religious institutions.”

But during her 2009 confirmation hearings after Obama appointed her solicitor general — the first woman to hold that position — she U-turned, saying her earlier memo was “the dumbest thing I ever read.”

In later questioning, Rabbi Saperstein said, she argued that decisions on government funding would have to be made on a “case by case basis. That puts her in the mainstream of separation advocates.”

But Rabbi Saperstein conceded that “we really don’t know where she is on some of they key religion issues, and that will be of great interest to us during the confirmation hearings.”

The RAC has set up an “AskElenaKagan.com” Web site to suggest questions to be forwarded to the Judiciary Committee.

The Orthodox Union, which generally supports government funding of religious programs, also plans to seek clarification of Kagan’s views on church-state law.

“She has pretty much no record on these issues, other than the memo and her repudiation of it,” said Nathan Diament, the group’s Washington director.

He said his group is “encouraged” by her repudiation of the earlier memo on faith-based funding, which he said is “consistent with the president’s view — which he demonstrated by keeping the previous administration’s faith-based initiative.”

Rabbi Abba Cohen, Washington director for Agudath Israel of America, said his group will “first and foremost look closely at her temperament, sense of fairness, scholarship and experience.”

While Kagan does not appear to have extensive involvement in organized Jewish life — and the extent of her religious involvement is unknown — she has worked closely with Jewish groups on some church-state issues.

“She was on the domestic policy staff of the Clinton administration when we were experiencing all kinds of government obstacles to passing RFRA,” said the American Jewish Congress legal expert Marc Stern, referring to the Religious Freedom Restoration Act — a top priority for a broad spectrum of Jewish groups in the 1990s. “She took things in hand; it was clear the president wanted it, and she managed to strike a deal everybody was happy with, and she did it quickly.”

That suggests the kind of role she could play in an ideologically divided Supreme Court, he said.

“It suggests the skills Justice [William] Brennan brought to the bench,” he said. “He was clearly a liberal, but notable for his ability to forge consensus.”

The RAC’s Rabbi Saperstein said that while he knows little about Kagan’s religious involvement, “it’s unusual to have a Supreme Court nominee who has been so directly engaged in issues of core concern to the Jewish community. “

While Jewish groups on both sides of the church-state divide praise Kagan’s qualifications but say they will reserve judgment until Senate hearings are completed, some Jewish progressives with a broader focus are deeply unhappy with the nomination because of Kagan’s apparent support for expansive presidential powers in the war on terrorism.

“What worries me the most is her view of presidential power,” said Rabbi Arthur Waskow, founder and director of the Shalom Center in Philadelphia. “She has leaned in the direction of supporting the Bush description of presidential power on issues like foreign detainees — which has been mostly retained by the Obama administration.”

But most Jewish groups seem favorably impressed with Kagan’s credentials and intelligence — if a little fuzzy on where she stands on their top issues.

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