May 29th 2010

The Triumph of Irrelevance: The Kagan Appointment

by Binoy Kampmark

Binoy Kampmark was a Commonwealth Scholar at Selwyn College, University of Cambridge and history lecturer at the University of Queensland
The Obama administration is making every concerted effort to keep its domestic agenda interesting and perplexing. The decision to make Elena Kagan a Supreme Court appointee has been baffling. Lacking judicial experience, and a legal record itself so thin it would barely fill the shortest of briefs is hardly a prerequisite for adjudicating greatness. That, evidently, has been regarded as irrelevant. We are instead left with speculations such as those written in Kagan's graduate thesis at Oxford University, written when only 23 and prior to attending law school. That has not stopped the vultures from circling for meagre portions of carrion.

The forces of the Right and Left seem to have become a chorus, though their reasons for attacking Kagan vary. Each Supreme Court nominee is always subjected to a series of forensic tests and inquisitorial practices that resemble a worst of gladiatorial contests. What are the candidate's views on abortion and the court's decision in Roe v Wade? What of sexuality or certain suspect religious views? The circus seeks to provide entertainment without substance. Candidates rarely rise or fall on the basis of their nimble legal minds.

When it came to the nomination of Robert Bork in the 1980s, the shackles of religion played a vital part in undermining his case. Time, in a piece in July 1987, had made mention of a Protestant upbringing, marriage to a Jewish woman, remarriage to a Catholic, and then, fatally, agnosticism. Legal skills and prowess were, well, religiously avoided. Instead, the pieties of whether his children had been raised in the Jewish faith, and his various motivations for marriage, were hauled out in the public arena. In the God-loving atmosphere of Ronald Reagan's America, Bork had become figure of 'religious unorthodoxy'. The unwashed was duly expelled.

As William Saletan claims, we may well be treated to another 'Bork' fest of ignominy (Slate, May 11). Andrew Sullivan of The Atlantic (May 10) ponders that rather tedious subject as to whether Kagan's sexuality matters at all, examining it for purposes of understanding what her 'identity' might mean. 'If she were to hide her Jewishness, it would seem rightly odd, bizarre, anachronistic, even arguably self-critical and self-loathing.' The irrelevant has become vital; the banality of such things as the bedroom, essential. Naturally, Sullivan prefers to extract something of utility to this self-defeating exercise. 'Is Obama actually going to use a Supreme Court nominee to advance the cause of the closet (as well as kill any court imposition of marriage equality)?'

Christopher Ryan of the Huffington Post (May 20) returns the favour, thereby also raising the bar on sexuality and prolonging the debate on whether Kagan might be 'charged' with lesbianism, even if he feels that such claims are nonsense to entertain. Instead, he hopes to show how a sexual preference is entirely legitimate, backing it with empirical freight. Enter the teases posed by sexology, the debate on 'the ebb and flow of female desire' examined in such works as Lisa Diamond's Sexual Fluidity. Are we talking about a legal official here, or a flamboyant, stylised dandy keen to explore the gamut of sexual emotions from A to B in the halls of America's most powerful court?

Then, there are the views of Kagan's colleagues at Harvard. Instead of anything substantial in the legal context (law is evidently the last thing to be left to lawyers), commentators are spouting dreary details and mind numbing aspects about 'management' skills and being 'approachable'. Academics at Harvard's law school have been hounded by the press to unearth Kagan's 'dynamic, aggressive, sometimes abrasive' style, or so claims Professor Detlev Vagts (AP, May 21). The perpetually noisy Alan Dershowitz was content that his dissenting views were never silenced.

As a Dean, she has been treated as having the revolutionary clout of Thomas Jefferson. As the Associated Press release says, Kagan's tenure was one of dramatic curriculum reform and new appointments. (Staple for sound decisions on the bench.) Instead of getting a sense of her legal acumen, we are given an overview of her management style. How this plays out in the arena of Supreme Court adjudication remains to be seen. Her colleagues on the bench will be less than interested in whether Kagan's 'management' techniques are 'sincere' or 'pro forma.' But who ever said it this nomination had anything to do with the law?

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