05/12/2010 10:47 am ET Updated May 25, 2011

Some Thoughts About Kagan

As I learn about Elena Kagan, my first responses are of pride and delight. She is, as everyone knows by now, an alumna of Hunter College High School, as am I. And although my experience there was a long time ago, I consider my six years at Hunter the formative experience of my life and the most important part of my education. I learned more there, than in college or graduate school. We learned to write, and think, and debate, and appreciate learning for its own sake.

Hunter was then an all-girls school. At the time, we complained about that continually, though many of us have come to realize what a blessing that was. At a time when girls were encouraged to defer to men, to consider ourselves inferior to them in most ways, Hunter taught us that we had brains and should use them. Who liked who, who was dating who, who was going to the prom with who were not part of our normal lunchtime conversations. Instead, we actually talked about ideas - what we were learning in our classes and on our own. No one thought that was unfeminine. The assumption was that we would graduate from excellent colleges and go on to meaningful careers, and many of us have.

Raising the number of women on the Court to three is not unrelated to what we learned at Hunter - the normalization of women as contributors to the public discourse. For this reason if for no other it is exceptionally important that this nomination succeed, and this is why it is not surprising that the insecure males on the Republican side of the aisle finding ways to diminish Kagan's accomplishments and qualifications. And despite the differences between Kagan and Sonia Sotomayor, the whining on the right is set to the same old tune: her record is thin...she's not too smart...oh, and what about her, you know, sexual preference? And she isn't, hmm, Christian enough for some.

Critiques of this kind show up especially when a candidate for a high position is female, because women are still marked (i.e., abnormal) in such roles. So there has to be something wrong with a woman who is seeking one. And a woman cannot, in this system of reasoning, possibly be as smart as a man, because a woman has to be ten times as smart as a man to be as smart as a man. It's a mathematical paradox, no doubt one reason that women have traditionally been put off by math.

It was sort of amusing when guys who, from the cogency of their arguments, couldn't have gotten into any respectable institution of higher learning (except maybe as beneficiaries of rich-white affirmative action) went on about how smart Sotomayor wasn't. But now that this argument is gearing up again, I am not amused. Guys, you can tell a joke only once. The second time around - not funny.

And the thin record criticism: well, that's the way it works nowadays. A major qualification for nomination to the Supreme Court is: no paper trail. This was so for Thomas, it was so for Roberts and Alito, and it is so in this case. If you have problems with this (and I admit I'd rather see nominees with a record that would tell us all where they stood), then don't create anti-choice litmus tests or similar roadblocks.

Justice Sotomayor made the mistake of expressing her beliefs on occasion - most notably, the infamous "wise Latina" remark. And look what happened. So it makes sense for a president to look for nominees who have never said anything that anyone, no matter how insecure, could possibly take the wrong way.

Of course, the problem here could be that some people can't tolerate the idea of a woman speaking publicly at all. So pretty nearly anything a woman in such a position says will become controversial. But, paradoxically, if a woman doesn't say anything, that isn't OK either: it means there is less of a basis on which to make interpretations of what she must have meant, or ought to have meant. And a woman who will not let herself be interpreted is a dangerous woman, a scary woman. Interpretation is power and control.

When a woman is powerful and therefore threatening, traditionally she could be diminished in stature or power by being cast as illegitimately sexual (cf. Marie Antoinette, Eleanor Roosevelt, and Hillary Clinton). And there is already murmuring about Kagan's sexuality, albeit in the absence of either relevance or evidence. But homosexuality here stands in for the absence of male control over her, sexually or otherwise. The argument: she's unmarried. But women with high-powered careers often still feel that they cannot balance such careers with the demands on women of marriage, or they discover that it is difficult to find a marital partner who can cope with a woman of high achievement and ambition.

To be fair, we should start asking if married male Supreme Court nominees might be gay, since plenty of gay people have been married, especially among conservative Christians. So if we're going to assess female nominees' sexuality on the basis of marital status, we should be willing to play the same silly game with their married male counterparts.

One more point: I wish that the commentariat could get it into their heads that women and men who are being discussed in parallel should be referred to in equivalent terms. I have lost count of how many pundits over the last couple of days have compared and contrasted "Elena" with "Justice Roberts." This is demeaning, rather than friendly. If it is intended as friendly, why not "John" and "Sam"?

Yes, I am not totally enthralled with the Kagan nomination. I am concerned that Kagan may be a stealth conservative. I would have been happier with Diane Wood - not only because of her more liberal record, but because her nomination would have given me hope that the president is becoming feistier, and (having realized that the Republicans are going to make trouble for anyone he nominates) is now willing to fight for a nominee closer to his own position. But, that said, it is crucial that a woman be appointed to this seat, and I am reasonably content with the Kagan nomination.

Subscribe to the Politics email.
How will Trump’s administration impact you?