Obama's case that Elena Kagan has a special understanding of ordinary people.

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May 10 2010 7:40 PM

Empathy in Academia

Obama's case that Elena Kagan has a special understanding of ordinary people.

Also in Slate, Dahlia Lithwick explains why the inscrutable Kagan makes everyone nervous. Emily Bazelon tears down the argument that Kagan was an extremist in her policy toward military recruiters at Harvard. Jack Shafer yearns to see an openly gay Supreme Court nominee.

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During the various attempts to find a hidden agenda in Sotomayor's past, White House aides could point to her actual rulings as proof that fantasies about her were constrained by reality. Kagan doesn't have the same kind of record. That means no embarrassing opinions—but it also means she may be easier to turn into a cartoon.

Perhaps, but in today's initial round, Republicans were frenzied and unconvincing. Kagan wasn't a judge, said Cornyn. But that wasn't a problem when he was praising Harriet Miers, George Bush's nominee for the high court in 2005. Senate Republican Leader Mitch McConnell raised questions about whether Kagan could be impartial as a jurist because of her previous service in the administration. Again, it was not a point he raised about Miers. (A staffer says his concerns about this issue with Miers came some time later.) This gives off the impression—shocking, I realize—that the opposition to Kagan is frantically political.

Then there was the press release from the RNC asking, "Does Kagan Still View Constitution 'as Originally Drafted and Conceived' as 'Defective'?" The question—aimed at suggesting Kagan was a judicial activist—came from a tribute Kagan made to Justice Thurgood Marshall shortly before his death. She quoted the first black justice as having said the Constitution as originally conceived and drafted was "defective." Looking at the quote in context—or thinking about it for half a minute—it's clear that Marshall was talking about the Constitution's three-fifths clause, which valued slaves as less than a full human being. Even in the mayhem of the hockey face-off you can still get called for high-sticking.

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Slate V: Kagan is announced as the nominee