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.