Reasons to Cheer the Kagan Nomination

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Let us now take a deep breath and rise for a moment above the dust raised this week by the ground-level chatter over the Supreme Court nomination of Elena Kagan. Let us acknowledge the detail of the matter from afar. For the love of Pete let's have a little more perspective.

President Barack Obama has just asked the first female dean of the Harvard Law School, and the first female solicitor general of the United States, to serve as the fourth female Justice of the Supreme Court. For the first time since Richard Nixon nominated obscure Justice Department lawyer William Rehnquist to the High Court in 1971, a president has selected a jurist but not a judge to become a Justice. An already-remarkable career ascends even further into the stratosphere; the oldest Justice gives way to the youngest. For the first time ever, upon confirmation, three women will sit on the Court at the same time. It has taken a generation, 29 years, from Sandra Day O'Connor's appointment until now, to see this promising milestone.

For me, what's most remarkable about this development is how obvious and accepted it has become that Kagan was considered only one of many remarkably-qualified candidates worthy of the most important job in the law. We now take it for granted, evidently, that the president could have selected any one of a dozen or so other brilliant, dedicated, and over-achieving lawyers and still have brought credibility and honor to the High Court. A good man like Merrick Garland might in another era already be a Justice. The brave and brilliant Diane Wood would have been confirmed if nominated back in 1993 when current Justice Ruth Bader Ginsburg got through. The Democrats' bench is deep. So is the Republican bench. That's a good thing.

There are dozens of other Kagans in modern America's legal establishment -- on the right, on the left, and in the center -- who now serve as a privileged and powerful cadre of our best and brightest lawyers and judges. In their professional lives, men or women, liberal or conservative or otherwise, they doggedly wade around treading water in the eddies and pools which mark what we now call the "mainstream" of legal thought. We should today acknowledge and celebrate the fact that this constitutional "mainstream" still is wide enough to spit out  Kagan, Samuel Alito, Sonia Sotomayor and John Roberts -- all in the span of five short years -- yet still narrow enough to continue in some semblance of dignified force and direction.

But we should also not kid ourselves. This is no less than what it should be in a nation of laws. The legal mainstream should be a lot narrower than the political mainstream at any given time -- otherwise there would be chaos and uncertainty in almost all our affairs. Thankfully, today, the center still holds, for the most part, at the Court. A generally moderate-right country is led by a generally moderate-right justice, Anthony Kennedy, who Justice Kagan or no Justice Kagan won't be giving up his "swing" Justice seat anytime soon.

Kagan may or may not ultimately tack to the Court's middle -- that's the only relevant mystery she will bring with her onto the Court once confirmed. But it doesn't really matter. The difference between Justice Clarence Thomas, on the far right of the Court, and retiring Justice John Paul Stevens, furthest to the left, is smaller than is the difference between the liberals who believe that George W. Bush ought to be prosecuted for war crimes and those who believe that Kagan is anti-Christian. The Court's right and the Court's left agree with one another over the course of a term much more often than Democrats and Republicans agree on anything on Capitol Hill. You can look it up.

This is so, thankfully, because the legal system itself generates antibodies that nullify or dissolve from Supreme Court contention those judges and other candidates whose views about the law have transferred out of the mainstream into odd, little tributaries. Through this self-sorting -- this marketplace of legal thought if you will -- we sacrifice idiosyncracies in favor of conformity. But we gain professionalism at the cost of carelessnesss. Compared with the other two branches of government, the judicial branch is a saintly, unfelonious branch. And that's also a good thing.

Harriet Miers, nominated briefly in 2005 by President George W. Bush, was rejected by the host body politic in part because she was incapable of explaining her views on constitutional law. She just wasn't smart enough. Douglas Ginsburg, nominated briefly by President Ronald Reagan, was spit out of High Court contention because he had smoked pot with students at, where else, Harvard Law School. He just wasn't judicious enough. Robert Bork, also nominated by Reagan, was rejected by the Senate Judiciary Committee because his views were extreme and radical and angrily-offered. He just wasn't judicial enough. Those are the only three failed Supreme Court nominations over the past 40 years.

The Kagan nomination will likely do nothing to ease the political debate over what role the Court should play in governance, who should sit on it and why, and whether we ought to know in advance precisely where a nominee stands on the issues of the day. But it's a debate that would be a lot smarter, and a lot less anxious, if we all started at the same place. The law's ultimate farm system is working well. The Supreme Court is already full of dedicated jurists and will soon add another to its midst. And in an imperfect world it's about the best a nation could hope for when the rule of law is on the line.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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