BPW Foundation's Women Misbehavin' Blog

Well behaved women never make history

History Could Be Made Again

Posted by egehl on May 11, 2010

With yesterday’s news, the current 22% could rise to 33% which is certainly closer to the 51% that should be the eventual goal.  President Obama’s Supreme Court nomination of Solicitor General Elena Kagan is welcome news in many respects including first and foremost that another qualified, well respected woman could be added to the highest court.

Women are 51% of this country’s population yet the Supreme Court has never come close to reflect that.  However that is changing with last year’s appointment of Justice Sonia Sotomayor and now Elena Kagan’s nomination.   In fact, if Kagan is confirmed there would be three women justices on the Supreme Court which would be the most in our nation’s history.  

Elena Kagan would fill the seat of retiring Justice John Paul Stevens who is viewed as a moderate, sometimes left leaning, judge.  There is no doubt that Kagan is qualified for the position through her academics, political appointments and current position as Solicitor General. 

Elena Kagan was the first woman to hold the position of Solicitor General in our country’s history. Before her appointment, she had a distinguished professional and academic career. She received tenure at the University of Chicago Law School and then at Harvard Law School and was the first woman to serve as Dean of Harvard Law. She also served under former President Clinton and was his Associate Counsel and Deputy Director of the Domestic Policy Council.

No doubt Kagan will go through the same brutal scrutiny that Justice Sotomayor endured last year, as both sides begin salivating to line up their defense and arguments. 

However I am hopeful there can be some bi-partisan agreement about this nomination because her intellect and qualifications have been applauded across the political spectrum.  When nominated to become Solicitor General, eight former solicitors general—including Ken Starr, Ted Olson, and Charles Fried—signed a letter supporting her nomination, as did conservatives Brad Berenson and Miguel Estrada, among others.

She has been regarded as an effective consensus-builder throughout her career.  Many supporters will point to her tenure as Dean of Harvard Law School which was during a contentious time in the school’s history over disagreements regarding faculty hiring, and bringing in conservative scholars to politically balance the school.  She also built coalitions across the aisle during her time with the Clinton Administration which produced results such as working with Senator John McCain to develop new tobacco regulations.  

It remains to be seen whether President Obama’s decision to nominate someone who hasn’t been a sitting judge was the best choice.  I think it will make for a different nomination process which could be less contentious, because without many public legal opinions to scrutinize the Senate Judiciary Committee won’t have much to measure her constitutional leanings in the weeks leading up to the hearings.  However it will also make it challenging for both ideologies to figure out where she might stand on certain issues. 

Nevertheless because she’s not a sitting judge I don’t believe makes her unqualified for this position.  She is an extremely qualified person who is known for fair-mindedness and possesses considerable legal skills.  In addition, there have been other able judges over the past century who entered the Supreme Court with little judicial experience but exhibited ideological expertise in dealing with divisive constitutional issues.  

Not surprising given our political culture, people are already questioning her qualifications and readiness to take on this prestigious position.  I find this funny given we are debating whether a former dean of Harvard Law School who enjoys almost universal respect from colleagues of all philosophies and seems to have done an excellent job as Solicitor General is qualified to sit on the Supreme Court.  However this is the partisan world we live in nowadays. 

It should be an interesting summer to watch how all of this plays out, but I have a feeling she will handle the process exceptionally well like her predecessor did a year ago.

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2 Responses to “History Could Be Made Again”

  1. Yes it is a big step and one I am rooting for but as Shelby Knox Tweeted: Over 220 years, 111 people have served on the Supreme Court. Four, if Kagan is confirmed, have been women. 1.8% is not parity.

  2. Elisabeth said

    Good point Sherry! We definitely have a long way to go to acheive parity.

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