The news that President Obama has nominated Elena Kagan as John Paul Stevens replacement on the Supreme Court has generated an enormous amount of excitement, both positive and negative. Kagan, who is Jewish, has been touted as everything from a slick move by the president to sneak in a progressive while satisfying the Jewish constituency that he’s really “on our side” (which of course just couldn’t be true, because we know he’s really an Arab-loving, anti-Israel security anti-Semite – that was sarcasm, for the witless, btw) to a cynical, typical Obama move which really shows just how non-progressive he is.
Because Kagan is young (In Supreme Court terms, although given that she’s just 50, in Jewish terms, also, which I always find funny, and am tickled to be able to say in terms of something other than “young Jewish leader”), she is likely to be an influence on the Court for a long time, making the stakes somewhat higher. Especially if she hangs in there as long as Justice Stevens, God bless him.
Glenn Greenwald, of Salon, has pointed out about Kagan, what many others in the progressive community have been saying about Obama for some time: that he’s not a progressive, but, at best, a centrist. The late, lamented Howard Zinn, just before he died wrote in the Nation that he thought that Obama would be at best, a mediocre president in a time when we needed great leadership. Many progressives have taken this to heart. Certainly, Obama’s middle-of-the-road, cautious approach which emphasizes attempts to reach out to the Republicans, hampering the country’s ability to get legislation passed which actually has some affect on policy, rather than leaving the status quo largely as is -and no matter how ridiculously they refuse to play under any circumstances- seems to be at play here.
Greenwald writes,

The New York Times this morning reports that “Mr. Obama effectively framed the choice so that he could seemingly take the middle road by picking Ms. Kagan, who correctly or not was viewed as ideologically between Judge Wood on the left and Judge Garland in the center.” That’s consummate Barack Obama. The Right appoints people like John Roberts and Sam Alito, with long and clear records of what they believe because they’re eager to publicly defend their judicial philosophy and have the Court reflect their values. Beltway Democrats do the opposite: the last thing they want is to defend what progressives have always claimed is their worldview, either because they fear the debate or because they don’t really believe those things, so the path that enables them to avoid confrontation of ideas is always the most attractive, even if it risks moving the Court to the Right.
Why would the American public possibly embrace a set of beliefs when even its leading advocates are unwilling to publicly defend them and instead seek to avoid that debate at every turn? Hence: Obama chooses an individual with very few stated beliefs who makes the Right quite comfortable (even as they go through the motions of opposing her).

Greenwald is also completely put out -albeit unsurprised- that Obama didn’t nominate Wood, who is certainly more progressive, and who Greenwald thinks Obama is staying away from because she “has bravely insisted on the need for Constitutional limits on executive authority, resolutely condemned the use of Terrorism fear-mongering for greater government power, explicitly argued against military commissions and indefinite detention, repeatedly applied the progressive approach to interpreting the Constitution on a wide array of issues, insisted upon the need for robust transparency and checks and balances, and demonstrated a willingness to defy institutional orthodoxies even when doing so is unpopular” as opposed to Kagan, who he sees as more of a lackey.
On the other hand, perhaps there’s a more nuanced view available. Jonathan Zasloff seems to think that what Obama is after is in fact someone who can sway the court, and help to get his agenda passed (Which Kevin Drum of Mother Jones -apparently agreeing with Greenwald- keeps referring to as “Brown-nosing”) writes:

Consider that Kagan first got tenure at the University of Chicago based on two articles — which usually is what that notoriously overachieving faculty wants in one year from a junior professor. Then she got an academic chair at Harvard based on one more piece, Presidential Administration. She wrote nothing else for more than two years at Harvard. And then she was appointed Dean.
This shows that Kagan may not be a great scholar, but she is enormously skilled at impressing older colleagues — and that’s just what the doctor ordered for this appointment.
Essentially, any Supreme Court appointment this cycle has two tasks: 1) vote the right way; and 2) convince Anthony Kennedy to do the same. Kagan seems to have the skills to do that.
Indeed, if you think about it, those justices with the greatest scholarly credentials have not generally been thought of as effective concerning the Court’s internal politics. Holmes and Brandeis were essentially isolated dissenters. As Richard Lazarus has demonstrated, Antonin Scalia has consistently undermines his own authority within the Court by insisting on his own theories of things. It is people like Earl Warrren, William Brennan, John Marshall, and John Paul Stevens, who were plenty smart but not infatuated with their own jurisprudential theories, who got things done.
Barack Obama is a student of the Court. I think he understands this history. And it’s why he’s leaning toward Kagan.

While, I find both of these approaches to be within the realm of reasonable, I wonder if there might not be some sexism underlying some of this, too. While Kagan’s history of legal scholarship might be relatively thin, and her bench experience even thinner, it’s worthwhile considering some details about her that make clear why Obama is interested in her: she’s an excellent communicator (and everyone seems to agree on that, at least) and an excellent teacher. She’s moderate in her views and seeks compromise.She’s also a trailblazer: the first woman to be dean of Harvard Law School and also the first woman to serve as solicitor general. I’ve no doubt that she faced an amazing amount of sexism and leapt dozens of obstacles on her way foward. In other words, Obama probably sees in her someone who is very much like him. A sympathetic soul, as it were.
The New York Jewish Week affirms these qualities in an article revealing Kagan to be the first girl to have had a bat mitzvah in the Orthodox LIncoln Square synagogue in 1973. The story there shows many of the qualities that are likely to be endearing to Obama already in place: she came to Rabbi Riskin with firm ideas about what she wanted: she had a plan and she was wiling to do the hard work to put it in place. She didn’t in the end get everything she wanted, but I have no doubt -despite the rather smooth spin given the story over 35 years later- that she had to fight pretty hard for what she did get,and in the end she was willing to compromise and get some, if not all, of it. Rabbi Riskin highlights her compassion and intelligence, which are both good qualities in a judge, but it’s probably worth considering what it must have taken, in an Orthodox shul, in 1973, to get a bat mitzvah.
The almost side comment about bat Torah versus bat mitzvah rather reminds me of the brou ha ha over calling Orthodox women rabbis “rav” or “maharat.” I find the fight over names here to be a good hint at what’s going on in this nomination discussion as well. Is Kagan a progressive? Is she a brown-noser? Is she a pragmatist who can get ‘er done? Well, presumably we will find out.
I hope that Obama has picked someone about whom we really know very little in the service of finding someone who will surprise us all (hopefully in a good way) and who will be a worthy replacement for Justice Stevens, who upheld the court for so many years of darkness, hanging on to try to make sure that the law of our land served the powerless and the poor and not just the rich and the powerful.