Kagan Criticized

Written by: Jessica Silbey

Angela Onwuachi-Willig, over at Colored Demos, has this to say about the Kagan nomination. I largely agree with Angela and hope, because I believe that Kagan will be confirmed, that Kagan’s record on faculty hires at Harvard is not a blueprint for her aspirations or capacity for change as a Supreme Court justice. Being a consensus builder is important on a Court that is divided to promote institutional legitimacy and stability, but it could wreak havoc on principles of substantive justice if consensus means reproducing the status quo. The Court is rarely the institution that leads the nation in social change, but when it does, in those rare cases it is asked to, the Court’s members need to be ready to speak boldly and with inspiration. I hope Kagan can rise to that challenge in the model of her mentor and former boss Thurgood Marshall. Unlike the other appointments she has held before (safe the university appointments as law professor), the job as Associate Justice of the United States Supreme Court comes with it independence from political constituencies and requires allegiance only to the Constitution. One can only hope that with that independence, Kagan’s deep commitments to equality and racial justice, among other of our constitutional values, will become obvious.