Student Activism, the 14th Amendment, and the Nomination of Elena Kagan

05/27/2010 04:39 pm ET | Updated May 25, 2011

President Obama's nomination of Elena Kagan takes me back to January 2008, when a line of undergraduate students waited outside of my history department office, asking for excused absences so that they could campaign for Obama. When they returned from the snowy climes of Iowa, they explained to the class that they had to change their socks four times because no matter how wet or frostbit they got, they were compelled to spread the gospel of Obama.

I then realized that something had radically changed. The decades of apathy that had stagnated across college campuses began to thaw as Obama's campaign picked up momentum that spring.

The 1970s witnessed in many ways the last watershed moment in which college campuses functioned as intellectual environments committed to new ideas and radical inquiries, not jpeg cut-outs of manicured images of campus landscapes that could be downloaded from US News and World Report's website rankings. Obama's bid for the Democratic nomination changed all that; he singlehandedly took a generation that seemed to be more obsessed with Lindsay Lohan than the state of liberal politics and got them energetically involved in the Presidential race. College students tore down the Greek fraternity and sorority letters decorating their windows and replaced them with Obama 2008 posters. "Yes We Can" began appearing as bumper stickers on cars and as pins tacked onto backpacks and sweaters. This excitement spilled over into class discussions, campus lectures and speaker's series events and generated debates on a range of issues from health care to the war in Iraq held at student unions, in cafeterias, in the stands of athletic stadiums, at women's centers, in chapels, and at meetings at Hillel.

When Obama was elected in November 2008, I wondered if this level of enthusiasm would dissipate. As the months unfolded in 2009, Obama's name still found its way into campus conversations, but some of the excitement had begun to dissipate. While contemporary political pundits may point to Obama's health care reform agenda or his policy on the war in Iraq as the determining factors that will shape his bid for re-election in 2012, I am convinced that he is losing his foot soldiers and his momentum as the campaign for change fades into distant memory, or at best lingers as a fleeting aroma with the announcement of Elena Kagan for the Supreme Court.

When Obama named Kagan as his nominee for the Supreme Court, he emphasized her "consensus" politics. I wonder: How many of my students would willing march through the snow in wet socks in two years for consensus?

Obama's nomination of a Justice to the Supreme Court might have been his best opportunity to seal his promise for change. Instead of selecting a consensus candidate, Obama could have -- and should have -- chosen someone who better represents the vision that seduced the nation in 2008. This is especially important given the fact that his nomination will replace one of the more progressive and liberal Justices of the modern court.

From where I stand, or should I say, sit in a history department office, Obama would have kept closer to his promise of change by nominating a black woman for the Supreme Court. In keeping with the spirit of Obama's nomination to have a Justice with academic experience, three formidable women come to mind: Lani Guinier, Kimberlé Crenshaw, and Mary Frances Berry -- three attorneys who embody the spirit of Obama's promise. Guinier entered the national spotlight when President Clinton nominated her as Assistant Attorney General for Civil Rights, but he had to withdraw his nomination based on purposely malicious misrepresentations of her comments regarding the "tyranny of the majority" and her efforts to make the voting process fair. Guinier has since remained a prolific scholar, and like Kagan until recently, teaches at Harvard Law School. Crenshaw, a law professor at both Columbia University and UCLA, transformed legal thinking fifteen years ago with introduction of what she defines as "critical race theory," which insightfully reveals the inherent racist assumptions within legal jurisprudence. Trained as a historian and as a lawyer, Mary Frances Berry, a professor at The University of Pennsylvania who earned her J.D. from the University of Michigan, headed The United States Commission on Civil Rights for many years. She was also an assistant secretary for the Department of Health, Education, and Welfare, and the first black woman to be elected as the President of the Organization of American Historians -- now, there is consensus! Many may dismiss these candidates (who are, by all accounts, brilliant legal minds) for their lack of judicial experience, but these candidates are much more in line with Obama's mission, which inspired thousands of college students to drink the Kool-Aid and believe that his Presidency would actually be different.

Nominating a black woman to the Supreme Court would not be in the name of identity politics (which would inevitably result in the slippery slope of every minority group demanding its own reserved seat), but it would rather highlight the important and often overlooked relationship that African Americans have to the 14th Amendment and how that Amendment has permeated nearly every civil rights decision issued by the Supreme Court. As a history professor, let me remind you that we would not have the 14th Amendment, which provided the first definition of citizenship, had it not been for the roughly four million slaves who stood at the gates of the nation's capitol at the end of the Civil War and forced Congress to define citizenship. Unlike any other ethnic or sexualized minority group, African Americans' emancipation from chattel slavery led to a reformulation of the Constitution. In short, the 14th Amendment is uniquely and inexorably tied to the historical experience of African Americans, who laid the foundations for equality-based jurisprudence. By nominating a black woman whose legal career has focused on Civil Rights, Obama could cure this historical amnesia and rightly reconnect the 14th Amendment to the black experience

Simply having a black person sit on the Court, such as Clarence Thomas, clearly does not accomplish this goal -- any black face will not do. It is imperative that he appoint a nominee who, like Guinier, Crenshaw, and Berry, recognizes the historical mission and importance of the 14th Amendment -- which, by the way, has arguably been the motor of more civil rights jurisprudence than any other provision of the Constitution. In speaking of both Kagan's and even Sotomayor's nominations, Obama has stressed the need to select a nominee that would have an impact on the daily lives of Americans. Choosing a Justice whose work recognizes and emphasizes the historical promises of the 14th Amendment, would be the best way for Obama to keep his own promises.

Elena Kagan has been heralded by some for serving as a law clerk to Justice Thurgood Marshall. While this is certainly a remarkable achievement for a young attorney, this tells us very little about her commitment to Civil Rights and the 14th Amendment. If Obama wants to rightfully acknowledge the Supreme Court's debt to one of its most influential jurists in the history of Civil Rights, then why not nominate someone who has actually made a career of following in Justice Marshall's tradition and made Civil Rights and the 14th Amendment the legal foundation for her professional work?

If nothing else, the nomination of Guinier, Crenshaw, or Berry would have promoted an important and engaged discussion about the continued problems of racism and sexism than the cutesy, national lampooning of Kagan's sexual identity. (Read: The closet is actually a real and scary place, Maureen Dowd -- take a history lesson on why Kagan may have kept her sexuality a secret if she were a lesbian.)

When my students return from the summer this September, Kagan's interrogation before the Senate Judiciary Committee will be a thing of the past. I wonder how my students will react. If the activist spirit still lingers within them, will they want to hold the President accountable for his campaign vision and march on Washington for change? If so, this time, I will escort them to the nation's capitol. And when we arrive to the White House gates, wearing our 2008 campaign buttons and holding aloft our Obama signs in hand to remind him of his pledge to the nation, I am going to pull out my boom box and use the words of the R&B trio 702 to ask the President, "Where My Girls At?"

Jim Downs is an assistant professor of history at Connecticut College. His books include Taking Back the Academy: History of Activism, History as Activism and Why We Write. His forthcoming book is "Sick from Freedom: The Unexpected Consequences of the American Civil War."