It’s not the case that Jews invented justice; there are codes of law from Mesopotamia that date from
1,000 years before Moses’ time. I will, however, claim that we invented the idea of equal justice for all men regardless
of social station (and even a modicum of justice for women). Despite
our primacy in the field of jurisprudence, the first Jew to be appointed to the U.S. Supreme Court—a mere 140 years
after this country’s founding—was Louisville’s Louis Brandeis. So far six other Jews have served: Felix
Frankfurter, Benjamin Cardozo (also the first Hispanic!) Arthur Goldberg, Abe Fortas, Stephen Breyer, and Ruth Bader Ginsburg.
Many people think that Brandeis was the best justice ever and that Fortas was the worst. All of them, however—as well
as the current nominee, Elena Kagan—were nominated by Democratic presidents. I find that significant, but it’s
not my point for this little essay.
Kagan’s
personal politics are obviously Democratic. As a Princeton student she got drunk when Elizabeth Holtzman lost her senate race
to Alphonse d’Amato. She served in the Clinton administration as well as the current Obama administration. She’s
the first woman to hold the post of solicitor general and was, until she left to join Obama, the first woman to serve as dean
of the Harvard Law School.
Clearly, she has the intellect
to do the job, but already people on the Left and the Right are worrying she’s too liberal or not liberal enough. I
think that’s a good sign.
Right-wingers decry
the judicial activism of the Left, thinking back to the days of Chief Justice Earl Warren and the pro-civil rights actions
of his court. They conveniently forget that the present court is activist in the opposite direction, or that supreme courts
haven’t been impartial since the days of John Marshall. (Since I live in the South now, I will draw a discreet veil
of silence over the Dred Scot decision of 1857.)
I
don’t want a liberal justice, just as I don’t want a conservative justice. I want a person who can interpret fairly
what the law presently requires even if she doesn’t agree with the present requirements. It’s sort of like being
a professor who is able to give good grades to students whose personal politics he disagrees with; believe me, I’ve
had quite a few of those, and I venture to guess that Professor Kagan has, too.
I hope, in fact, that Dean Kagan becomes the prototype for a new kind of Supreme Court justice—indeed,
for a judge at any level—and that is a person who subordinates his/her personal ideology or religious views to a careful
and balanced evaluation of the law as it applies in each case. I am, of course, a little concerned that she’s a Mets
fan.
Speaking of sports, I’m an Al Davis follower. He’s the managing general partner of the Oakland Raiders
football team and, by the way, also Jewish. Drafting people for his team, he doesn’t look for kids who have played this
position or that, but for the best athletes. They are the ones who can best learn to play the position they are put in.
In the past 40 years, and especially in the past ten
years, our country has become ever more polarized. I understand that at present most Democratic and Republican congress people
no longer socialize with each other after hours. The governor of Texas thinks his state has a right to secede from the Union!
Under these conditions we desperately need people who
precisely can’t be labeled as Right- or Left-wing because, like Billy Martin in the old beer commercial, they “feel very strongly both ways.” By all accounts, Ms. Kagan is just such
a person.
Oh, and as to the innuendo attending the
fact that she is 50 and unmarried, I have a son.…
