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Faculty panel dissects Kagan SCOTUS confirmation

Published: September 17, 2010
Section: Front Page

Round table: Professor Anita Hill (Heller) discusses the different reasons people opposed Supreme Court Justice Elena Kagan during her confirmation hearing.
PHOTO BY Alan Tran/The Hoot

A Brandeis roundtable discussion Thursday about the confirmation hearings of Judge Elena Kagan focused on the historical significance of her appointment to the Supreme Court and the media coverage that followed. Students, faculty and community members heard presentations from future president Fred Lawrence, and Professors Eileen McNamara (JOUR), Anita Hill (Heller) and James Mandrell (WGS), who each spoke through the lens of their respective fields.

Mandrell, Women’s and Gender Studies program chair, introduced the event to a full audience, speaking about a similar Brandeis event last year during the Sonia Sotomayor confirmation hearings, expressing his delighted surprise that another woman had been nominated so soon.

After Mandrell’s introduction, Lawrence, in his first time at Brandeis as a politics expert, rather than the future president, summarized the nomination and confirmation processes for Supreme Court justices, including how they have changed in the past century.

To Kagan’s opponents who claim she is unqualified because she has never been a judge, Lawrence simply pointed out that she would not be the first—Justices Louis Brandeis and William Rehnquist weren’t either. Those opponents “meant that her views were outside where they wanted her to be,” he said.

“Every time one [justice] changes, the conversation changes,” Lawrence said, implying that Kagan’s appointment would not change the relationships and dynamics of the Supreme Court any more than a different Justice.

The biggest problem with Kagan’s nomination, Lawrence said, was the loss of “an extraordinary opportunity for public education” for American citizens.

Rather than focus on issues and the Supreme Court’s role in society, the process has become a political theater, which McNamara, a Pulitzer Prize-winning columnist, attributed to the media’s preoccupation with Kagan’s sexual orientation. The media are the public educators, and by focusing on Kagan’s sexual orientation, “softball and frumpy haircuts,” rather than her qualifications to be a Supreme Court justice, they have failed, McNamara said.

Anita Hill, a Heller School professor of social policy, law and women’s studies, spoke about the attempts by Kagan’s opposition to “bloody her nose.” The first, she said, was Kagan’s prevention of military recruitment at Harvard Law School while she was the dean. Kagan’s actions were called unpatriotic and extreme, but she claimed justification because “don’t ask, don’t tell violated Harvard’s anti-discrimination policies. The event was then used to cast light on where she stood on the issue of gay rights, which later fed into the media and public frenzy about her sexual orientation.

Other excuses from Kagan’s opponents included her politicization of medical science in the Clinton administration, Hill said, when she was painted as radically pro-choice. Her judicial activism was called into question when she was accused of admiring former Justice Thurgood Marshall. Kagan was a clerk for Marshall early in her career, and he was considered an activist judge who protected the underdog.

Opponents worry about that influence on her decisions as a justice, but, Hill asked, is that such a bad thing?

The panelists also speculated on the impact of having a third woman Justice, concluding that the exact impact of a third woman was hard to know, but that the change from no women 30 years ago was a giant leap.

However, they pointed out that women are still extremely underrepresented in other areas of the federal government, especially the Senate, at 17 percent, a statistic that Mandrell called “frightening.”

Candidates for the Supreme Court should “reflect not only the law, but also the beauty and breadth of the country,” Hill concluded.