By Amanda Cohen Leiter, Associate Professor, Columbus School of Law, The Catholic University of America
Many others have extolled Justice John Paul Stevens and described the large shoes that Elena Kagan will have to fill if confirmed. I will not add to their comments here. (I note, though, that few of us are as qualified to evaluate Kagan's aptitude for the task -- or her progressive credentials, for that matter -- as the man who appointed her, who has more than a passing familiarity with constitutional law and has also had occasion to question Kagan closely and privately on her judicial philosophy and her beliefs on a range of matters.)
I write instead to highlight a little-heralded but enormously important consequence of the Founders' idea of requesting the Senate's advice and consent on Supreme Court nominees: For a few days around each nomination, a quiet but extremely powerful branch of government, scrutinized in Washington but largely disregarded outside the Beltway, finds itself in the limelight, and the public is given the opportunity to consider both the role that branch plays in our lives and the characteristics we would like to see in those who serve it.
For those short days, we all take the time to ask ourselves whether a Justice should have prior judicial experience; whether she should be empathetic to the parties before the court or impartial and umpire-like; whether she should be a scholar or a practitioner; whether, in this particular case, her skills as a manager and a resolver of conflicts (being a successful Dean of a notoriously fractious law school necessarily called upon those skills) will help her bridge gaps and find points of agreement on the Court; and whether her gender, age, race, and religion should count for her, or against her, or not at all. No matter how we each answer those questions, we should be honored and grateful that our Constitution invites us all, albeit indirectly, to have thoughts on these issues. It is that invitation, and our participation in the resulting discussions and debates, that give the Court its legitimacy, and lend truth to Kagan's observation, on accepting her nomination, that "law ... is the foundation of our democracy."
[picture via arcticpenguin]