We Need More Than Obama's Trust To Support Kagan

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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.


In fact, I'd argue the exact opposite. We don't need less democracy—that is, less transparency, less participation in the process, less accountability—we need more democracy. We need more knowledge about the ways decisions are being made, more knowledge about the consequences of those decisions. We don't need fewer people involved; we need more people involved, more perspectives from more segments of black communities than the ones we hear from presently. Finally, we need more rather than less accountability. Just like we need to know more information about how our representatives make their decisions, we need to have a larger capacity to vote them out of office if they go against our wishes. Trust should come as a consequence of transparency and accountability. Trust should almost never serve as a substitute for transparency and accountability.


Which brings us to Obama and Kagan. Obama is basically saying that we as citizens don't need to know anything about Kagan other than the fact that he appointed her. Her lack of a legal track record? Unimportant. Her shaky record in dealing with racial and gender diversity? Unimportant. What is important is that he knows her. And if he knows her, we should trust his judgment and support her without pause.

This is the type of thing I expected more from his predecessor. And even though I agree with him far more than I agreed with President George W. Bush, I find it no less distasteful. He is substituting trust for a transparent record. President Obama has every right to nominate the candidate of his choice. But rather than marching in lockstep with President Obama because we trust him, now is the time we should be extremely critical. We shouldn't want a group of unelected black elites making secret decisions without full information. We shouldn't want our president to present us with the equivalent of secret candidates without full information. If Kagan's answers do not meet our standard, we should urge our senators to reject her.


Lester K. Spence is an assistant professor of political science at Johns Hopkins University in Baltimore.

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