Elena Kagan, John Paul Stevens, SCOTUS, SCOTUS Potential, Solicitor General's Office, Supreme Court

Is the Kagan Nomination a Done Deal?

With apologies to John Paul “I’m not dead yet” Stevens, speculation has been rampant about who will replace him, if he decides to retire.

Many of the names that came up after Souter retired are bubbling back to the surface, but U.S. Solicitor General Elena Kagan has to be considered the front runner. Obama hasn’t said anything and Stevens is, you know, still there — but that didn’t stop the Harvard Crimson from handicapping the chances of former Harvard Law School Dean Kagan:

In the face of Justice John Paul Stevens’ impending retirement, the nomination of former Harvard Law School Dean Elena Kagan for the open seat on the Supreme Court has become a likely prospect.

If she is selected as President Barack Obama’s nominee, Kagan—who currently serves as the nation’s first female Solicitor General—will face a number of challenges on the road toward confirmation, including her lack of experience as a judge, her religious background, and her stance on the military.

Man, the “impending retirement” of J.P. Stevens is turning into a a Monty Python skit. But, so long as we’re here, let’s take another look at that religious question. It might be the only thing that could scuttle Kagan’s ascendancy to the high Court…

We know Republicans will bitch and moan about Kagan’s liberal tendencies. We know many will whine about Kagan’s lack of judicial experience. But all indications are that the President wants to put somebody on the Court who hasn’t spent his or her lifetime in robes. And we assume that whoever Obama nominates will be liberal (I’m not at all sure his left flank will support another centrist like Sotomayor).

But the religious thing, now that could be an issue. The Crimson reports:

Kagan’s religious affiliation may also impede her nomination. Justice Stevens is the Court’s only Protestant, and if Kagan, who is Jewish, were appointed, the court would be composed of six Catholics and three Jews.

On NPR, Nina Totenberg gets to the heart of the issue (as usual):

Let’s face it: This is a radioactive subject. As Jeff Shesol, author of the critically acclaimed new book Supreme Power, puts it, “religion is the third rail of Supreme Court politics. It’s not something that’s talked about in polite company.” And although Shesol notes that privately a lot of people remark about the surprising fact that there are so many Catholics on the Supreme Court, this is not a subject that people openly discuss.

In fact, six of the nine justices on the current court are Roman Catholic. That’s half of the 12 Catholics who have ever served on the court. Only seven Jews have ever served, and two of them are there now. Depending on the Stevens replacement, there may be no Protestants left on the court at all in a majority Protestant nation where, for decades and generations, all of the justices were Protestant.

Totenberg goes on to show that the lack of Protestants isn’t really a left/right issue. Five of the six Catholic Justices were appointed by Republican Presidents.

Supreme Court nominees are always scrutinized under the identity politics microscope. There are only nine slots, and everybody wants their group represented. So it’s kind of shocking that Protestants could wind up with no representation on the Court in a nation that is predominantly Protestant.

And it’s not like having devout Catholics on the bench is a substitute for having a couple of Protestants, any more than having a Clarence Thomas on the bench is the same as having an African-American.

So it seems to me that Kagan’s religion could become a real issue if she gets nominated for a seat that is not yet open.

But only if we witness one of the most awesome role-reversals ever to come to C-Span. Can you imagine conservative Republicans arguing in favor of identity politics? Meanwhile, Democrats would be arguing that diverse religious views were not important. It’d be funny to see whose head exploded first, Lindsey Graham or Chuck Schumer.

Supreme Court May Soon Lack Protestant Justices [NPR]
Kagan’s Nomination for Supreme Court Seat Is Likely Prospect [Harvard Crimson]

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