by Russ has raised some interesting questions about identity and the Supreme Court. In keeping with the theme, while Christianity Today (the leading magazine for mainstream evangelical Christians) usually avoids overt partisanship or hyperbole, I was struck by this article about Elena Kagan’s nomination:
There is almost nothing with which American evangelicals can identify in either Kagan’s personal or professional life, and the same is likely to be true of her legal philosophy as it emerges. Fortunately for evangelicals, in replacing liberal Justice John Paul Stevens, Kagan would not markedly alter the balance of power on the court. At the same time, unfortunately for evangelicals, that balance of power will leave them in the position of highly engaged outsiders looking in.
Let’s put to the side the very provocative notion that evangelicals should expect to find almost nothing to identify with about Elena Kagan’s personal life, and focus on the professional. On the implications of a Justice Kagan, I find this sort of analysis frustrating because, by presuming a total disconnect between an evangelical worldview and Upper West Side / Ivy League worldview, it essentializes two enormously diverse and overlapping groups of people, implicitly defines them in part by the rejection of the other, and effectively widens the existing disconnect in the process. Besides abortion (and yes, that is a big “besides”) why exactly will evangelicals find almost nothing to identify with in Kagan’s legal philosophy? Why would an evangelical — by virtue of being an evangelical, not because of other sociopolitical characteristics that often happen to be found among evangelicals — necessarily oppose an interpretation of the Commerce Clause that permits health care reform, or support an interpretation of the First Amendment that treats a corporation as a person? What exactly is an “evangelical” theory of constitutional interpretation?
Don’t want to beat a dead horse, but it’s not about abstract ideas. It’s about identity. My response to the Christianity Today piece — res ipsa loquitor.
Right. I should’ve titled the post, “Maybe Russ is right after all.” I can see folks having a vague but unspoken sense that Kagan is not “one of us.” But when a writer for a leading (and usually reasonable) religious publication makes those conclusions explicit — i.e., “we can’t identify with her personally” = “we won’t be able to identify with her judicial philosophy” — I do find that disturbing.
Well, but it seems that if Kagan has any “judicial philosophy,” she hasn’t articulated it. She seems to be a capable person, but she has no achievements to speak of as a lawyer, scholar, or judge. So we’re being asked to support her for a powerful and enduring office, basically, on the basis of the sort of person she is. Given that, it seems entirely understandable, and not at all unreasonable, for someone to say, “There’s nothing about the kind of person she is that I can identify with.”
Who wants a judge with another theory to rationalize imposing their political will? Moses has the best word on judicial selection: “Choose some wise, understanding and respected men from each of your tribes, and I will set them over you.”(Deut 1)
From what we know, Kagan seems very intelligent and very ambitious. Maybe that’s a good combination for a Harvard dean, but it’s not the judicial criteria that Moses recommended.
It’s also interesting that Moses did not neglect the sociopolitical factors (“tribe”).
But the author went further than that, saying that there is unlikely to be anything to identify with in her legal philosophy as it emerges. I guess what I’m concerned about is how we express these identity issues in a type of shorthand without having to bother drawing out the connections between an evangelical worldview and a particular theory of constitutional interpretation. In my experience, evangelicals love Scalia, but when you talk about Employment Div. v. Smith, their views become more nuanced. I fear that it’s too easy to lose the nuance and further separate ourselves from “the other” as we treat personal background, worldview, and judicial (or political) philosophy as easily categorized answers to the question, “Is she one of us?”
Seems to me it is largely about abstract ideas. Though the other “identity” factors Russell keys on also apply, they seem to be comparatively minor. Evangelicals don’t have so much trouble identifying with Catholic East Coast elite Antonin Scalia. The abstract idea that Kagan is a liberal appears to be enough of a barrier by itself.
I’d go further than wondering whether there’s an Evangelical view of the Commerce Clause. Going down another level, I often wonder at the fact that there’s an Evangelical view of any political issue, including abortion. Sure, abortion policy is fraught with spiritual implications, but the Evangelical view of it is almost completely based on controversial and essentially secular philosophical reasoning, not biblical text (which is at best slight and inconclusive on this, from what I can tell) or even biblically based tradition (which isn’t so clear-cut either). Evangelical politics in general seems to me largely accidental to Evangelical theology. Even so, the abstract ideas of that politics now largely determine what and whom Evangelicals identify with.
Steve, two gentle points in response. First, I’m not sure Kagan is as much of a tabula rasa as you seem to suggest. I’m not sure her judicial philosophy is much more or less defined than John Roberts’s was when he was nominated. Like him, Kagan strikes me based on her scholarship as a technocrat, of roughly the Legal Process variety –leaning left where Roberts leaned right, but neither wildly different nor wildly unknown. It’s no accident both were nominated for the DC Circuit. Second, I don’t understand Rob as saying it’s impossible for someone, especially an evangelical, to conclude that they have nothing in common with her. Rather, the problem is that this conclusion can be drawn too quickly, without giving enough thought either to the likely diversity of Kagan’s own background and record and, especially, to the wealth of backgrounds and achievements that can characterize the evangelical himself. Not all evangelicals are deans of Harvard Law School. (For “not all,” read “none.” But that was once true of Jewish women as well.) But some evangelicals are Ivy League-educated lawyers, were born or live in New York City, are unmarried, and so on. Drawing a considered conclusion that one is different from Kagan seems fine to me; but concluding that she is necessarily different, based on a somewhat shallow view either of Kagan or of evangelicals themselves, is more problematic.
Good points, Paul. I think the lack of a record is a little more troublesome in Kagan’s case than it was in Roberts’s. Roberts had been a judge, though only for a couple of years. And given that Kagan has spent so many years in academia (unlike Roberts), the absence of more indications or expressions of her views on the various constitutional issues is a little more remarkable. Still, based on very limited evidence, Paul’s description of her likely approach seems about right. And it’s true, as reflected in both the Kagan and Roberts cases, that our situation today conduces to the selection of candidates without much of a record. That seems to me unfortunate, but it isn’t Kagan’s fault. I didn’t mean to suggest opposition to her. In my one very limited contact with her (a three hour committee meeting), I found her to be both capable and likeable, and I’m much happier with her as the nominee than I would have been with some other people who were talked about.
All that said, I still think the sort of point that Rob’s original post discussed critically makes sense: for the most part, people are being asked to take Kagan on trust, and if they can’t relate to much in her background or known commitments, it’s understandable that they would be less than happy about doing this.
Rob — I’ve ceased taking Christianity Today to represent “mainstream evangelicals,” whatever that means. Maybe this is because I’m not a “mainstream” evangelical. CT, in my view, for the most part still represents theologically and politically right-leaning evangelicals. I refuse to capitulate to the notion that “evangelical” necessarily implies “theologically and politically right leaning.” “Evangelical” should mean nothing more or less than “committed to the Evangel — the good news of the incarnation, death and resurrection of Jesus Christ.”
But if “evangelical” includes the sociological baggage that many readers of CT will load into that term, then the article is absolutely right.