One of the negative memes that floating around about Supreme Court nominee Elena Kagan is that she’s a lifelong New Yorker in a Court where Gotham is already overrepresented, and that this background suggests she has no understanding of the values and experience of most Americans, who hail from the “Heartland.”
This argument was made very explicitly by Kathleen Parker in a Washington Post column today, which refers to Kagan’s Big Apple background and yes, her Judaism, as indicating an entrenched cosmopolitan and liberal worldview that is “miles away from mainstream America.”
Aside from the unsavory history of prejudice against New Yorkers and Jews–not to mention New York Jews–as representing an alien presence in America, Parker also seems to be channeling the recent conservative tendency to divide the country into “real American” areas and, well, those that are not so real or not so American. Indeed, you sometimes get the sense that the “heartland” is co-extensive with zip codes that vote Republican.
But is there any merit to the idea that Obama is loading the Court with too many New Yorkers whose entire life experience is in a liberal Democratic cocoon? Let’s take a look at some history.
If Elena Kagan is confirmed, the Court will have three Justices–as it happens, all Democrats–who were residents of New York when nominated. (A fourth, Antonin Scalia, spent most of his formative years in New York City, but as the intellectual leader of the Court’s conservative wing, he doesn’t exactly illustrate the insulated-liberal-environment theory.)
Is that an unprecedented dominance of the Court by New Yorkers? Actually, it’s not. From 1932 to 1941, there were also three New Yorkers (as determined by residence at appointment) on the Court, one (Harlan Stone) appointed by Calvin Coolidge and the other two (Charles Evans Hughes–who once lived on the same block where Elena Kagan grew up–and Benjamin Cardozo) appointed by Herbert Hoover. Hughes was Chief Justice for eleven years (1930-1941), followed by Stone for another five years.
In all, fourteen New Yorkers have been appointed to the Supreme Court before the current batch arrived. If you recognize that New York has been generally considered the legal as well as the financial capital of the country for much of our history, these numbers aren’t surprising.
More to the point, is it fair to suggest that Elena Kagan has spent her life in a virtual ghetto of liberal Democratic sentiments, isolated from broader political and social currents? That idea reflects a stereotype of the city and state of New York that’s never been entirely accurate. Kagan was born in 1960. During the course of her lifetime, New York City has had Republican mayors for 21 of her 50 years. New York State has had Republican governors for 26 of her 50 years. As far as cosmopolitanism goes, Kagan’s most important experience was in a federal administration headed by an Arkansan and a Tennessean.
But can anyone who grew up on the sidewalks of New York really understand an American “heartland” characterized by small towns and rural areas? Maybe not, but neither can the 80% of Americans who live in metropolitan areas. And this gets to the mythical nature of “the heartland,” many of whose residents have more in common with middle-class New Yorkers than with the sturdy peasant stock of yore. In terms of this meme, it’s revealing that Sarah Palin, who hails from Alaska, one of the two least typical American states (the other being Hawai’i) is reflexively considered a classic representative of “the heartland” and of “real Americans.” That shows how artificial the construction really is.
The more you probe it, the “not from the heartland” criticism of Kagan is pretty far along the slippery slope that leads from stereotypes to bigotry. And in any event, the idea that demographic background is some sort of reliable indicator of judicial temperament or philsophy has always been dubious. The liveliest liberal of the twentieth-century Court, William O. Douglas, was hardly a big-city elitist; he was born in Minnesota and grew up in poverty in Yakima, Washington. The iconic leader of the Warren Court, Earl Warren, far from being a cosseted legal monk, was a very successful politician, and governor of California when the state was not that cosmopolitan. The first Amendment absolutist Hugo Black was an Alabama politician aligned with the Ku Klux Klan. The primary author of Roe v. Wade, Harry Blackmun, was a Minnesotan with a narrow background as legal counsel for the Mayo Clinic.
Conservatives are understandably frustrated by Kagan’s lack of a “paper trail” with which to divine her specific position on constitutional issues, though her high-level work in two administrations and as Dean of Harvard Law School, and her close association with President Obama, makes her far less than a complete mystery. But they should probably steer clear of slurs on her background–and that would include innuendoes about her sexual orientation as well as her place of birth and religion– that are not obviously germane, but are very obviously conducive to prejudice.