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Renée Loth

Kagan and the power elite

By Renée Loth
May 22, 2010

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THE DIVERSITY gods, it seems, are never satisfied.

Elena Kagan would be the fourth woman to sit on the Supreme Court if her nomination is confirmed, so she gets no points for being a gender pioneer. Ho-hum, just the first woman dean of the Harvard Law School. Instead, her critics are complaining that she isn’t a mother.

Others are fretful that Kagan isn’t Protestant — suddenly a crucial factor since she would be replacing the last remaining WASP on the court. For Kagan, whose grandparents emigrated from Eastern Europe, that’s a plot twist worthy of an Isaac Bashevis Singer story.

But what is Kagan’s worst demographic sin, to hear some opponents tell it? Is it that adding her to the court would mean too many Jews (three) or too many millionaires (at least seven) or too many native New Yorkers (four)?

No. Kagan’s appointment is being attacked because it would mean that every justice is a graduate of an Ivy League law school. Somebody alert the ACLU.

Senator John Cornyn of Texas, a Republican member of the Judiciary Committee, complained last week that President Obama had chosen “another person from an elite law school here on the East Coast’’ when there are qualified law graduates “in the heartland’’ who should have been given a chance.

Jeff Sessions of Alabama, the ranking Republican on the committee, said he was concerned that Kagan “might be the kind of judge that often are quite favored in places like the Harvard faculty,’’ meaning activist liberals.

A widely circulated essay in Time magazine questioned whether the court’s Ivy League complexion might “risk undermining our high court’s intellectual diversity and encourage the kind of elitism that’s anathema to a democracy.’’

This faux populism is especially galling coming from Republicans, who were notably unconcerned about elitism on the court when the nominees were John Roberts, Antonin Scalia, or Anthony Kennedy (Harvard law grads all). Not to mention Samuel Alito or Clarence Thomas (Yale).

But it touches a chord with many Americans, who distrust elites — with the exception of sports stars. The antipathy is a strain in the national psyche easily exploited by culture warriors such as Sarah Palin and Rush Limbaugh, who polarize the country into pointy-headed intellectuals and “the rest of America.’’ Limbaugh stuck to the script this week, calling Kagan “a liberal elitist’’ who has “no clue how real Americans live.’’

Here Kagan’s New York roots also work against her. Studies of election results show the red-blue divide in the United States is not really a north-south phenomenon, or coasts versus the heartland, but a split between urban and rural. Harvard, Yale, and Columbia are suspect not just because they are exclusive, but because their orientation is urban.

If ever there were an American institution where graduating with honors from the nation’s most prestigious law schools would be a plus, the Supreme Court would seem to be it. The nation’s highest court isn’t designed to be pass-fail; why pretend otherwise? Justices are appointed for life precisely to shield them from popular fashion.

But the tide against exceptionalism is running high. It is exacerbated by the Internet, which tends to devalue expertise. With a few clicks, everyone can be their own doctor, plumber, journalist, or judge; who needs Harvard or Yale? The democratization of knowledge is great, but I still don’t want a blogger performing my brain surgery, or someone from correspondence school deciding my constitutional rights.

The ironies are rich: the first black president is accused of playing an old-boy’s game by choosing a woman who taught with him at the same law school. She is rumored to be a reformed smoker who struggled to quit; more proof that Obama can’t see beyond his own blinkered experience.

These ludicrous claims obscure one quality the president did see mirrored in Kagan: a sincere desire to listen. “She believes, as I do, that exposure to a broad array of perspectives is the foundation . . . of a successful life in the law,’’ he said at her nomination. Open-mindedness, the ability to build consensus, a habit of “understanding before disagreeing’’ — in today’s America these are qualities more rare and endangered than any race or religion. We need them on the nation’s elite court.

Renée Loth’s column appears regularly in the Globe.

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