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Bard Blog: The Supreme Court Nomination

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"We know what we are, but not what we may be," comes Ophelia's flash of insight within her madness. Uncertainty prevails most on Supreme Court appointments. Hence we know what Elena Kagan is, but not what she "may be" as a Supreme Court justice.

Even if confirmed, President Obama's nominee won't turn out exactly as Shakespeare envisions a judge.

"All the world's a stage, and all the men and women merely players," which the Bard divides into "seven ages." Coming after the soldier -- "sudden and quick in quarrel, seeking the bubble reputation even in the cannon's mouth" - is the fifth, a calmer, more judicious stage of life. "Then the justice, in round belly with... eyes severe."

The Bard deems judges "full of wise saws," meaning well-reasoned legal rulings, and "modern instances," those new situations which hence demand new rulings.

Here Shakespeare nailed the trickiest part of being a judge -- or, even gaining confirmation to become one. Ms. Kagan must show respect for the "wise saws," the precedents set by previous Court sessions, or, according to conservatives, by the Founding Fathers themselves.

Nonetheless, she must recognize "modern instances," on which the Constitution can't be awfully clear. For instance, neither the Founders nor many previous courts have had a lot to say about the Feds regulating broadband, a hot topic in FCC and hi-tech circles today.

Meanwhile, President Obama will praise his former law colleague lavishly, perhaps rising to the level of the messenger in Much Ado About Nothing: She "hath borne [her]self beyond the promise of [her] age, doing in the figure of a lamb the feats of a lion. [S]he hath indeed better bettered expectation."

The Solicitor General will then respond to the President: "I can no other answer make but thanks, and thanks, and ever thanks . . ." (Twelfth Night).

After the "sound and fury" of the confirmation process ends, the Senate may well conclude that she will become "a worthy judge. You know the law, your exposition has been most sound" (Merchant of Venice).

Then come the real challenge and opportunity. As Shakespeare says, "Time's glory is to calm contending kings, to unmask falsehood, and bring truth to light."