We Need More Than Obama’s Trust To Support Kagan

With her limited paper trail, we need more than vague promises from President Obama to support his latest Supreme Court nominee.

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Today, as expected, President Barack Obama nominated Solicitor General Elena Kagan to replace retiring Justice John Paul Stevens. Kagan, the first female solicitor general (and also the first female dean of Harvard Law School), is by all accounts brilliant and extremely qualified. And to hear President Obama and some of his supporters tell it, Kagan will not only judge from the left, but will be extremely persuasive in carving 5-4 majorities in doing so.

But some argue otherwise. As Sherrilyn A. Ifill notes in her piece, legal scholars and journalists have questioned Kagan’s lack of a paper trail that can reasonably point to her ideas on the issues that the next Supreme Court will likely take up–issues such as individual rights, affirmative action and corporate rights. Furthermore, they have questioned Kagan’s hiring practices while dean of Harvard Law School. While Kagan made significant strides in making Harvard Law School ideologically diverse–hiring a number of conservative legal scholars–she made no strides in making the law school more diverse, gender- or race-wise.

The response to these claims? It boils down to two words. Trust me. President Obama wants us to support his choice not because she’s got a strong record, not even because she has a particularly visible record, but because he knows her. I’m not buying it. And even if Kagan ends up being the best justice this side of Thurgood Marshall, you shouldn’t either.

A few months ago, I was on a panel talking about black leadership with a prominent young political commentator. After the panel, he and I talked about black politics and what type of structure we needed in this new Obama era. From where he stood, what he wanted to see more than anything else was a core group of black elites making decisions about what black people did–about the issues we fought for, about who would run for what office, about how we would distribute resources.

In effect, what he wanted was W.E.B. DuBois’ Talented Tenth in action. A group of people entrusted with the lives of “the black community,” a group of selfless leaders who would be able to calmly figure out what was best for that community. This group wouldn’t necessarily be public–we wouldn’t know who they were, nor would we have a say in how they were chosen. The actions of this group wouldn’t necessarily be up for discussion–there wouldn’t be a Web page we could go to for the purpose of debating their actions or voting on alternatives. They’d just do what they do, and we’d be better off for it, because they’d dodge all of the messy stuff we associate with democracy: the uninformed brothers and sisters who want to talk even though they are uninformed; the long amount of time it normally takes to get black folk to agree. And this is way before we get to the possibility of co-optation.