Read Slate’s complete Elena Kagan coverage.
As the Elena Kagan Bore’Em to Death Tour rolls on into Memorial Day weekend, it’s clear that almost no narrative about her is going to stick. A CBS poll released today shows that almost three weeks after her nomination for the Supreme Court, 72 percent of Americans have yet to form an opinion on her. And since she’s all but disappeared from the front pages, it’s not clear how we’re going to get to know her better before the confirmation hearings, which are scheduled for the end of June. The meta-narrative about Kagan seems to be that there is no meta-narrative about Kagan. This doubtless makes the White House very happy.
Efforts to unearth a judicial philosophy or any clear constitutional preferences continue to show Kagan to be equivocal, careful, and impossible to know. That makes the search for a compelling Kagan narrative even more imperative. But there’s no there there. As my colleague John Dickerson pointed out a few weeks ago, the White House’s early effort to present her to America as champion of the little guy (and gal!) was destined to fizzle. Kagan has many great virtues, but being an ordinary American champion of ordinary American nonchampions probably isn’t one of them. Lacking Sonia Sotomayor’s up-from-poverty life story and John Roberts’ sprinkled-with-fairy-dust charm, Kagan has been halfheartedly sketched by her enemies as a snarling hater of the military, and by her friends as awfully nice. From a narrative standpoint, I’d call that a draw.
Which is why the White House probably thinks its work here is done. The nominee will be confirmed with minimal bruising. And while Democrats are certainly wasting yet another opportunity to engage Americans in a debate about the courts, at least nobody is being hurt by this shallow conversation. Nobody, that is, if you consider the creeping sexism, looksism, and homophobia surrounding the Kagan nomination to be painless.
I don’t. I’ve been worried that with all this attention focused on Kagan’s wardrobe, gender, marital status, and dating history, we’ve once again allowed the public conversation about courts to be swallowed up by the kind of toxic race and gender stereotypes we heard during Sonia Sotomayor’s hearings. Leave it to call-in radio to show me why I am wrong.
Every time I’ve been on a radio show on the subject of Kagan’s wardrobe/softball playing/marital status, some twentysomething caller has taken me to school. It turns out, they invariably tell me, that twentysomethings just don’t care if their Supreme Court justices are black, white, Jewish, Protestant, gay, or straight. Every day someone under the age of 30 either sends me an e-mail or tweet or a Facebook post reminding me that those of us making a huge big fat media deal about the nominee’s race, religion, sexual preferences or marital status are quickly becoming cultural dinosaurs.
Young people reading Robin Givhan’s article on Kagan’s scandalously open knees think they’re reading something hilarious from their grandparents’ stack of dating magazines from the 1950s. When they hear us yelping about racial diversity at the court, they think about the fact that their classrooms are already incredibly diverse and their Facebook friendships span continents. When they hear us shrieking over women’s softball, they shake their Title IX heads and figure we’re just idiots for thinking straight women don’t play sports. And when they hear us whispering behind our hands about whether someone is gay, most of them tell me they think we’re just freaking idiots. Just as they embody Barack Obama’s post-racial America, they identify almost completely with Kagan’s post-gender America—in which womanhood simply isn’t defined by skirts, babies, or boyfriends anymore.
Never has my own obsolescence thrilled me more. As those of us in the media continue to relitigate the 1960s—from the Civil Rights Act to Vietnam—the people who will live through Kagan’s decades-long tenure at the court have moved on. The debate over identity politics will take on new meaning over the next few decades, I’m sure. But it probably won’t mean bickering about Kagan’s color, race, or gender. What I hear on these call-in shows is pretty much what recent polling of the millenials reflects: They care passionately about the economy, and they are ambivalent about the government. They are far more tolerant than their parents about race and sexual choice; they aren’t so in love with the idea of marriage; and religion just isn’t as big an issue as we think it is. And they seem to be telling me, over and over again, that when it comes to a Supreme Court nomination, they value competence and intelligence over the check-the-box identity politics.
One last thing, with respect to these young people, and maybe even to Kagan herself. It’s worth reminding ourselves that part of the reason they are poised to inherit an America that isn’t defined solely in terms of their differences on race, gender, religion, and sexual preference is attributable at least in part to the doings of the Supreme Court—specifically the much-maligned Warren Court. These young Americans are, don’t forget, the products of Brown v. Board of Education, Cooper v. Aaron, and Bakke, which have filled their classrooms with students of other races; and of Loving v. Virginia, which allowed their parents to marry; and of Frontiero v. Richardson, which first called gender-based laws into question; and of Griswold v. Connecticut and Eisenstadt v. Baird, which allowed their parents to control their own fertility.
Both Obama and Kagan have been at great pains to distance themselves philosophically from those crazy “judicial activists” of the ‘60s and ‘70s. Yet the president and his nominee are also reaping the benefits of an America that every day becomes more accepting of difference and personal choice as a result of that very same judicial activism. When Obama and Kagan talk about the landmark victories of Thurgood Marshall’s era with a nostalgic smile and express their confidence that such battles are behind us, they really aren’t wrong. But they also ignore the ways in which the Supreme Court has used the argument that the old intolerance is behind us to upend voluntary desegregation programs and threaten affirmative action in recent years. These open-hearted twentysomethings are proof that integrated schools and affirmative action and gay rights have created a more tolerant nation. But what today’s twentysomethings should know—and what one hopes Kagan will remember—is that that this tolerance is partially their own choice, and partially an inheritance they need to fight to protect.