Elena Kagan

Unless there are disturbing revelations in Elena Kagan's appearance before the Judiciary Committee, I am hopeful that she will receive the support necessary to her appointment as an Associate Justice of the U.S. Supreme Court.

Many people have already commented on Ms. Kagan's lack of courtroom experience but no one can deny that she is an exceptional scholar - legal and otherwise - and has held a diverse array of jobs that insulate her from any charge that she is out of touch with ordinary Americans. Harvard University and the University of Chicago would never have risked their reputations to hire a woman who was not prepared to teach at the highest level or to be dean of the most prestigious law school in the country. Her family background is marked by a father who was a lawyer, a mother who was a school teacher and siblings who attended the best universities in the country and became teachers themselves. No one can call her a dilletante with dynastic wealth. She is a product of what many people still believe is the American Dream.

It is difficult to say at this point what her judicial philosophy is or the way she would analyze a variety of cases. I believe she will answer those questions with candor and confidence but will not answer direct questions about whether she believes that Rowe v. Wade ought to be overturned or that, despite her statements about the lack of constitutional support for same-sex marriage, how she would rule on various challenges to the Defense of Marriage Act (DOMA). No nominee, except perhaps for Robert Bork, ever revealed what they might do in hypothetical cases. That - and his supreme arrogance - derailed his nomination.

Some left wingers are disappointed. Some right wingers are disappointed. That's exactly where she ought to be. Nominating individuals to serve on the Court is clearly an important Presidential responsibility but over the last few decades has become so overly-politicized that it is easy to become cynical about the process. I didn't like the idea of a Chief Justice Roberts but there was little question that he was fit for the job. Conservatives didn't exactly like the idea that Ruth Bader Ginsburg would ascend to the Court but they, too, had to agree that she was prepared to do the job. They frequently disagree with each other. In a balanced Court with a diversity of background, gender, race, religion and sexual orientation, the moderates have much of the control in decision-making. Most of those moderates believe that there is a place for divining the "original intent of the framers" and a place for recognizing that the nation is not what it was in the 18th century and that the Constitution is a living document. There are times when both philosophies work hand-in-hand when analyzing and deciding important cases.

For those of us who will watch or listen to the confirmation hearings, I hope that we pay as much attention to the questions Ms. Kagan is asked as we do to her responses. When we hear an unfair question or one primarily designed to pander to a Senator's local constituency, I hope we will organize to complain loudly. In this role, at this moment in time, each Senator has the same constituency: all of us. When politics gets out of control, we get Clarence Thomas. When it remains in check, we get Sandra Day O'Connor, Anthony Kennedy and a host of other jurists who have never been completely predictable. Unless there is someone out there who knows every case that will come before the Court during the next 25 years, the search for predictability will always lead to a dead end. It was designed that way over 200 years ago. It is perhaps the only time I will agree with Antonin Scalia's orginalist dogma.