President Obama Nominates Elena Kagan for SCOTUS! Should We Prepare for a Second Round of Sexism?

The sexist double standard was undeniably at play in the right wing attack on Sonia Sotomayor’s nomination. I can’t help but wonder, as we patiently wait for the GOP response to Obama’s most recent nomination of Solicitor Elena Kagan, if we should prepare ourselves for a second round of sexist attacks. Despite the fact that Elena Kagan has a pretty slim record to pick at, I doubt that will prevent conservative misogyny from rearing its ugly head again.

For now, I plan on celebrating the fact that Kagan’s confirmation would add another justice to the bench that supports women’s reproductive choices; as well as level out the gender disparity a bit. In a year where women’s health has been continuously thrown under the bus, this nomination is definitely a breath of fresh air.

Despite my clear appreciation for a pro-choice, female nominee; I can’t help but worry about some other key issues like Kagan’s position on the scope of presidential power. With that being said, I also don’t want to jump to any decisive conclusions quite yet. In response to Glenn Greenwald’s claim that Elena Kagan may move the court closer to the Bush/Cheney model of Executive Power, Walter Dellinger claims that Kagan is in fact a progressive on the issue.

That is all way off the mark. Let’s take Greenwald’s second point first. As dean of Harvard Law School, Kagan sharply and publicly criticized the excessive claims of executive authority put forth by Bush administration lawyers such as John Yoo. In an address at her school’s graduation ceremony in 2007, she forthrightly condemned “the expedient and unsupported legal opinions” used by Yoo and other lawyers to justify violations of federal laws regulating wiretapping and interrogation. Kagan minced no words in her critique of Bush administration lawyers who “failed to respect the law” or who manipulated, bent, or evaded the law “to seek short-term advantage.” She also held up as a model to the graduating students and their families and friends the actions of independent counsel Archibald Cox in standing up to President Nixon. And she praised other lawyers such as Jack Goldsmith, who insisted that President Bush cease the secret wiretapping program because they believed it unlawful.

These views do not come as a surprise if one reads Kagan’s 2001 Harvard Law Review article “Presidential Administration.” She does not endorse anything remotely like the Bush-Cheney view of broad presidential power to evade laws passed by Congress. (The article was written before Sept. 11 prompted articulation of the Bush-Cheney doctrine.) Greenwald correctly acknowledges that “what Kagan was defending back then in [2001] is light years away from what Bush/Cheney ended up doing, and her defense of Clinton’s theories of administrative power was nuanced, complex and explicitly cognizant of the Constitutional issue they might raise.” He nonetheless sees her positions on presidential power as leaning in a more conservative direction that the justice she would replace, John Paul Stevens.

I just hope that through the confirmation process we can all stick to the actual issues and stay away from the tired sexist double standard still rampant in contemporary politics.

Update: Looks like the sexism has already started on twitter. Apparently some guy is getting a little riled up at the RADICAL IDEA that three women will now occupy seats on the bench.