Gender and geography
Much has been made of Kagan’s career path and professional trailblazing. Despite a lack of any judicial experience, she is the first of her sex in two previously male-dominated domains—first female dean of Harvard Law School and first female U.S. solicitor general.
No small accomplishments. But though we are what we do, what we do is not all of what we are. We are also products of place. Where we grew up and how we experienced the physical environment of our formation are also a part of who we are.
What is Kagan’s geography? What is her anchorage, her port of call?
Coincidentally, she shares the same hometown as the other two women on the court. Assuming Kagan is confirmed, all three women will hail from New York City. Kagan grew up on the Upper West Side of Manhattan, Sonia Sotomayor is from the Bronx, and Ruth Bader Ginsburg is from Brooklyn.
If diversity on the court is our goal, we may be missing a region or two.
These facts ultimately may be more anecdotally interesting than significant in terms of how a judge might perform. Then again, spending one’s formative years walking past the infamously crime-riddled “Murder Hotel” en route to school, as Kagan did—and, say, walking past the First Baptist Church to ballet class—are not the same cultural marinade.
The latter hypothetical is proffered only for the sake of contrast and metaphor. It seems remote to unlikely that a woman whose life has involved Baptist churches and ballet slippers would find herself on a track to today’s Supreme Court, though that ought not to be the case. Women are not of one cloth. (As a footnote, retired Justice Sandra Day O’Connor grew up between El Paso, Texas, and an Arizona ranch and is a famously good dancer.)
Both current female justices and Kagan also attended Ivy League schools, not that there’s anything wrong with that. But does a gender-mixed court featuring Kagan, Sotomayor and Ginsburg qualify as a diverse court because they are women? Or do these three represent ideological purity in a lace bib? The jury is still out.
President Obama has made clear his desire to nominate justices who are in touch with “ordinary Americans.” He specifically mentioned “empathy” in choosing Sotomayor. Before Kagan’s nomination, Obama said he wanted someone with a “keen understanding of how the law affects the daily lives of the American people.” He wanted a justice who, like retiring John Paul Stevens, “knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.”
Certainly New York City dwellers would argue that they struggle with ordinary concerns, just in a more densely arranged environment. But New York, like other urban areas, tends to be more liberal than the vast rest of the country. More than half the country also happens to be Protestant, yet with Kagan, the court will feature three Jews, six Catholics, and nary a Protestant. Fewer than one-fourth of Americans are Catholic, and 1.7 percent are Jewish.
One does not have to be from a rural Georgia backwater (Clarence Thomas), or the child of recently arrived immigrants (Antonin Scalia and Samuel Alito), to qualify as a justice, though it might help in claiming identity with ordinary people. One could even argue that it matters only that one regard the law with utter neutrality.
But the president adheres to the ordinary-people principle, and so the question must be asked: Does Kagan meet the standard? She may have other qualifications, including her willingness at Harvard to invite conservative scholars to her faculty. But a New York City girl who attended a prep school, Ivy League colleges and law school—who once barred military recruiters from Harvard’s recruitment office and was an adviser to Goldman Sachs—can’t be characterized as anything close to mainstream America.
Either Obama may want to tweak his operating narrative—or geography may well be Kagan’s wound.
Kathleen Parker is a columnist for the Orlando Sentinel. Her e-mail address is email@example.com.
Last updated: 1:52 pm Thursday, December 13, 2012