At the center of our current crisis is not the recession, or terrorism, or an oil spill in the Gulf, as challenging as each of them are. It is a dearth of leadership. While our president struggles to find his voice it is unlikely, given the election cycle and a news cycle that assures his shoes will be covered with tar balls for months to come, that he will regain his mandate for hope and change. And Congress has already proven its own hopelessness addled by anger, pettiness and rectitude. It only leads in ineptitude. That leaves only one other branch of government with both the authority and aptitude to lead: the United States Supreme Court, and the prospects there are fading too, suffering under the pall of partisan homogenization.
This week’s number is 160,000. That’s the number of pages of documents—mostly emails—the White House has released to reveal the essence of Supreme Court nominee Elena Kagan’s mind. The early analysis provided by the Washington Post is that there is hardly anything controversial or alarming in either her past or her mind, leaving little for Congress to bicker about. She is a benign product of an intellectually and liberally ambitious middle class family. She is highly educated and has most of the politically correct boxes ticked on her resume. She’s hard not to like; assuming one could know her well enough to have an opinion. I expect her childhood classmates are not particularly surprised she is where she is today, just after they answer the question Elena who? Unless there is an undisclosed tawdry tale or militant link to Roe (and not Wade), Kagan is a shoe-in for confirmation on a Court populated exclusively by Ivy League alumni. Therein lies the problem.
Once Kagan is sworn in, all of our justices will have been reared and educated in a corridor of thought defined by the same few but highly contentious issues that have been debated from the Back Bay of Boston to the boroughs of New York to the hunt clubs of the Potomac for generations. As much as Kagan will likely disagree with Roberts, Alito, Thomas, Kennedy, and Scalia, and more often agree with Ginsburg, Breyer, and Sotomayor, the larger issue is one of human context, which is now as narrow as the differential of predictable 5 to 4 decisions. While deliberations of the new court will likely have all the luster of the great marble walls of the Court, they will also lack the grit, blemishes, and fractures that make Americans both gloriously unique and at times, unseemly. They will be formed in an ivy-covered vacuum where every argument is as worn and frail as the texts that support them. Many will find comfort in this; many will argue courts should be so boring. But maybe it’s time for the judiciary to lead. It has before, as Justices like Earl Warren (Cal-Berkeley), Thurgood Marshall (Howard University), Warren Burger (William Mitchell College), and Sandra Day O’Conner (Stanford) led the nation from the bench by both deed and judgment. In their day, the nation not only survived, it progressed.
This country needs leadership. What we face today is a Court of no new ideas or inspirations; notwithstanding the occasional juvenile power impulse of the majority, as we saw in the Roberts/Alito judicial coup, which restored the corporate cash drawer to an electoral status it hasn’t enjoyed for more than 100 years. Kagan’s nomination may assure confirmation, but it falls well short of the spirit the Founders hoped to find in the our halls of justice where ‘We the People’ is best served by including the largest human context possible. It’s time to shake the place up—to speak up and out about the future of the nation. The only folks doing that today are far from qualified—unless selfish anger is a prerequisite for brilliance. If we are to honor the motto on our Great Seal—E Pluribus Unum—out of many, one, we better preserve the many so as not to suffer the narrow context of the few, however inoffensive they appear in tens of thousands of pages of emails. If we quash leadership at every opportunity the majestic marble halls of Washington DC will become the antiquities of tomorrow, auctioned off to the plutocrats of Wall Street as quaint memorabilia of a great society that died of systemic indifference.