Why the younger generation doesn't care about the debate over the latest Supreme Court nominee.

The law, lawyers, and the court.
May 26 2010 5:36 PM

The Kagan Kids

Why the younger generation doesn't care about the debate over the latest Supreme Court nominee.

Read Slate's complete Elena Kagan coverage.

Elena Kagan. Click image to expand.
Elena Kagan

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.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

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.

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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.

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