by Kathleen Parker, a moderate and thoughtful conservative, has a column in the Washington Post arguing that Elena “Kagan is miles away from mainstream America.” The focus of her article is on how Kagan would be the fourth Justice to hail from New York City (as a Brooklyn resident myself, I want to note that she’s obviously missed the memo about how the framers intended the Supreme Court membership to reflect the famous New Yorker map of the United States). But she also observes that:
More than half the country also happens to be Protestant, yet with Kagan, the court will feature three Jews, six Catholics and nary a Protestant. Fewer than one-fourth of Americans are Catholic, and 1.7 percent are Jewish.
I am on record as saying that President Obama should have nominated a Protestant. Nonetheless, based on what I know so far, I find Elena Kagan extremely well-qualified and believe she will be an outstanding Supreme Court Justice. The mistake here is the President’s, not Kagan’s, and her worthy nomination should not suffer the consequences of his error. And the President’s mistake is quite understandable. His approach reflects the dominant perspective of the legal and political cultures that identity is irrelevant and judges are (and can be) “neutral.” As I explained in my previous post, this view represents one extreme in explaining the relationship between identity and rule of law. The other extreme asserts that identity is essential and dictates how judges behave. (Interestingly, as a practical matter, many lawyers give lip service to neutrality but in their work as litigators assume that judges are not neutral and take identities into account.) As I mentioned in my earlier post, the empirical work in the organizational behavior field rejects both extremes. Instead, it finds that a nuanced, middle view that acknowledges that how people as individuals manage the way they perceive themselves and how others perceive them (see, e.g., Kathleen Parker on Kagan) is a far more effective strategy in achieving business goals. Hopefully, President Obama’s next appointment will reflect the lessons of this research. To best achieve the goal of equal justice, judges should abandon the illusion of neutrality and instead recognize that treating parties equally requires judges to understand that important identities in fact have an influence and that promoting the shared goal of equal justice requires managing that influence — not ignoring it.
Most of what Russell has said on this subject seems sensible to me. But not this: ‘[President Obama's] approach reflects the dominant perspective of the legal and political cultures that identity is irrelevant and judges are (and can be) “neutral.”’ I can’t think of any reason to suppose that Obama is that naive. It seems much more plausible, to me, to suppose that Obama nominated Kagan based on some mix of personal friendship or loyalty, confidence that she’s likely to vote the way he’d like, by and large, and desire at this point to avoid a destructive fight that a more controversial candidate would provoke.
I think that Steve Smith is right to point out that President Obama is not as naive as Russ seems to suggest (witness Obama’s rather thoughtful statements and reflections on racial-identity, etc.). But I think that the force of Russ’s point remains relatively intact. The key issue, it seems to me, is not whether ‘identity’ is or is not altogether ‘irrelevant’, as Russ says. The key, rather, is how ‘sensitivity to religious-identity’ (which is one kind of good) is to be judged or measured in relation to other, potentially competing goods (e.g., sensitivity to gender-identity, legal training, judicial experience (or lack thereof), ideological orientation, personal loyalty, avoidance of a protracted judicial-confirmation fight, etc.). I think that I’d be able to agree with both Russ and Steve at once, if Russ had said something like this: “Obama’s approach reflects the dominant perspective of the legal and political cultures that sensitivity to religious-identity is relatively insignificant, and is easily outweighed (or even ‘obviously outweighed’) when other, competing considerations are taken into account.” In short, I think that one can agree with Russ’s main point, without having to attribute to Obama (or to the prevailing legal/political culture) the (naive) view that it is possible to be absolutely ‘neutral’ about religion or religious-identity.