"You Be The Judge!"

It's time to Break It Down!

On May 26, 2009, President Barack Obama nominated Sonia Sotomayor to replace David Souter on the United States Supreme Court (USSC). It is May 2010, so the President must be at it again, right? Well, even though the sequencing does not automatically follow that logic, it just so happens that, yes, the President is at it again.

I wrote about that historic nomination a year ago. So it seems only fitting to delve into the current journey to the USSC. On May 10, 2010, President Obama nominated Elena Kagan to fill the vacancy that will occur when Associate Justice to the Supreme Court, John Paul Stevens, retires at the end of the current term.

All the suspense and drama that normally accompany a Supreme Court nomination process is in play with Ms. Kagan. There are questions aplenty about how various factions and interest groups view Ms. Kagan. In an era when politics is super-fragmented, every angle is out-sized relative to reasonable proportion, and hyperbole rules, a short list of concerns on the table include:

• Kagan is too far left (Conservatives)

• Kagan is too far right (Liberals)

• Kagan has no judicial experience

• Kagan is an elitist (Princeton, Oxford, Harvard)

• If Kagan is appointed, there will be no Protestants on the USSC

• Kagan is an Obama crony (Harvard & University of Chicago)

• Kagan is a Socialist (She wrote a Senior Paper on Socialism at Princeton)

• Kagan, 50, never married, no children, and a softball fan, is gay

• Kagan would limit the import of assault rifles (NRA)

• Kagan did not hire any minorities while Dean of the Harvard Law School

America the Beautiful is a land of passionate and diverse opinions. There are groups of people who believe and avidly support the contentions expressed in the ten premises listed above. Among the proponents of each of those contentions are those who are convinced the item above they believe to be true makes Elena Kagan inherently unworthy to serve as an Associate Justice of the USSC.

All that may be true. However, I feel compelled to bring this matter closer to home. Over the weekend, I had an opportunity to engage several of my close personal friends on an issue related to Ms. Kagan’s nomination that is not captured or reflected in the assertions referenced above. Yet, it is indeed a matter that tugs at the very fabric of the magic that helped energize and fuel Mr. Obama’s successful bid for the White House.

The discourse of my weekend exchanges centered upon the question of what, if anything, does Ms. Kagan’s nomination say about the prospects of this President nominating a black candidate for the Supreme Court. Moreover the conversation touched upon the very question of whether there are any bona fide black candidates the President could have offered for nomination.

Just as the ten contentions presented earlier demonstrate the range of variations and positions along the spectrum that people in general take, these deep-thinking African American men impressed me, not only with their passionate adherence to their positions, but with their firm grasp on the nuances and subtleties of the pressures and choices confronting President Obama.

There was an abiding consensus that Ms. Kagan is eminently qualified, even though that is not a universally held position. In fact, I included point-counterpoint editorials; one by Dr. Boyce Watkins, an Economics Professor at Syracuse University, and the other by Charles Ogletree, a scholar at the Harvard University Law School, which identify some of the more compelling pros and cons of Ms. Kagan’s nomination.

In framing the case for support Ms. Kagan, I viewed the issue of adding a black Associate Justice as a long shot. Moreover, in my view, it has less to do with qualifications at this time in our history, than with the fractious nature of the political spectrum. In other words, while the Kagan nomination means President Obama is 0-2 in terms of chances to nominate a black candidate for Associate Justice, I harbor significant doubt that will change, even if the President has 2-3 more changes to nominate a prospective “Supreme.”

I look at it this way. Understand...I am a huuuge fan of POTUS, but I think the question hinges as much on arithmetic as politics. The fact is, by statistical breakdown, the US population is 12% black. The USSC has 11% black representation. That is probably as good as it gets; never mind that Justice Thomas has not reflected any tendencies to support positions that broadly reflect the concerns of blacks, while serving as a member of the Court.

Back to the politics, there is just zero incentive to change that. Why? Because POTUS has to consider that another black member would provide blacks with outsized representation, relative to our percentage of the population. This would in turn deliver ammunition to his critics to support the argument that he is indeed, just as they feared/warned, the black President, rather than the people's President. To use the vernacular, "That just ain't gonna happen!"

So when all is said and done, Elena Kagan, absent some damning, yet to surface revelation, will sail toward, and ultimately through confirmation hearings. Liberals and conservatives alike will play this as though they held an ace and a king in hand, in a game of Black Jack; they will stand pat. While neither side may admit it, both know they could do worse; much worse.

Of course, that is just is what I think. But be my guest; “You Be The Judge!” I’m done; holla back!

Read my blog anytime by clicking the link: http://thesphinxofcharlotte.blogspot.com. A new post is published each Wednesday. For more detailed information on a variety of aspects relating to this post, consult the links below:

http://en.wikipedia.org/wiki/Elena_Kagan

http://en.wikipedia.org/wiki/Sonia_Sotomayor

http://www.justice.gov/osg/

http://en.wikipedia.org/wiki/Solicitor_General_of_the_United_States

http://www.law.harvard.edu/faculty/directory/index.html?id=112

http://content.usatoday.com/topics/topic/People/Politicians,+Government+Officials,+Strategists/Elena+Kagan

http://trueslant.com/rickungar/2010/05/08/it-looks-like-elena-kagan-for-scotus-–-could-shift-court-to-the-right/

http://mediamatters.org/research/201005100001

http://www.nydailynews.com/news/politics/2010/05/10/2010-05-10_elena_kagan_supreme_court_nominee_gops_verdict_is_shes_rubber_stamp_for_obama_ad.html

http://www.csmonitor.com/USA/Justice/2010/0516/Supreme-Court-nominee-Elena-Kagan-Will-her-own-words-bite-her

http://www.slate.com/id/2253950

http://www.time.com/time/politics/article/0,8599,1988179,00.html

http://www.huffingtonpost.com/dr-boyce-watkins/five-reasons-why-elena-ka_b_580028.html

http://www.newsweek.com/id/237080