What If Obama Nominated A Black Woman To The US Supreme Court?

What If Obama Nominated A Black Woman To The US Supreme Court?
Written by Paul I. Adujie









The first person of African descent to become president of the United States, on Monday May 10, 2010 nominated Elena Kagan, the first woman to be the Solicitor General of the United States. The nominee is also the first dean of Harvard University Law School as well as the first woman to serve alongside two other women simultaneously on the US Supreme Court. This is a good thing!

And now, she is the third American Jew currently serving on the US Supreme Court and the second nominee by President Obama from New York City and the second female by President Obama since his inauguration on January 20, 2009. Elena Kagan will also be the only fourth woman to have served on the US Supreme Court in the entire history of the court’s existence. This is, again, a very good thing!

Elena Kagan clerked for the legendary late Justice Thurgood Marshall of the US Supreme Court as he then was, and she was known to have had a large portrait wall picture Thurgood Marshall who she called her hero and her mentor. It is noteworthy, in the circumstances that Justice Marshall was a person of African descent, as well as President Obama who has now nominated Elena Kagan to this appointment of a lifetime for a lifetime on the highest court in the United States

There are Democrats and those who are liberal on social and legal issues, who have swiftly criticized President Obama for nominating Elena Kagan who is seen as a middle of the road Democrat, not liberal on social and legal issues enough. She is known to have appointed many conservative lawyers to the Harvard University Law School she served there as dean. Elena Kagan therefore does not represent the liberal ideals of the Democratic Party of which President Obama is head. What if Democrat Party take particular steps to ensure that its nominees and appointees have strong, profound, vigorous and audacious liberal worldviews, consistent with the Democratic Party platforms?

It is the case that the Republican Party makes efforts, even if such efforts affront liberals, Republican Party singularly focus such efforts true conservatives, in appointing persons with ultra conservative views to pursue social and legal policies which reflects the worldview of the Republican Party, whereas, the Democratic Party, always seem tepid and intimidated in their nominations of persons who would naturally reflect and pursue, liberal ideals of the Democratic Party. The question to be asked and the question which therefore arises is why the Democratic always appear to be timid and timorous in appointing openly and sufficiently liberal persons to pursue agendas reflective of liberal worldviews?

While for instance, Justice John Robert and Justice Alito ultra conservatives and pro-business and pro-corporate appointees of President George W. Bush President Obama’s immediate predecessor, President Obama and the Democrats with a resounding mandate from the American electorate in November 2008 compared to President George W. Bush’s electoral fortunes in both his elections in year 2000 and his reelection in year 2004. The Republican Party seem to use even their smaller mandates more effectively than the huge and larger mandates of the Democrats historically. Why is it that Democrats seem to always fear selecting strong and recognizable voice for progressives, such as persons who are unapologetic liberal? Is President Obama’s worldview really liberal or is he as a matter of fact a camouflaged conservative who merely disguises himself as a liberal? Mr. Obama’s fruitless pursuits of bipartisanship and the elusive social policy middle ground worries many liberals. A recent reminder of this Obama phenomenon is his approval of offshore drilling a little over a month ago, a policy which was advocated by McCain-Palin during the 2008 political campaign season and opposed then by the Obama-Biden ticket. Acceding to offshore drilling and expansion of nuclear energy expansions, was a clear shift by Mr. Obama and the Democrats, perhaps, in another efforts to bend over backwards in the name of bipartisanship and to placate the Republicans despite the unwillingness of the Republicans to compromise on any issue, and yet, in the end, it is the Democrats who end up looking awkward after the massive oil spillage in the Gulf of Mexico!

There are many, who now believe that many of the current administration’s policies are being shaped by this hot pursuit of bipartisanship, a rather elusive or even nonexistent bipartisanship which have been pursued to no avail by Mr. Obama. President Obama and the Democratic Party will do well to remain and stay true to core beliefs of Democrats upon which they were given the mandate by the American electorate in November 2008. It is widely believed that the nomination of Elena Kagan is driven by this desire by President Obama and Democrats to placate the Republicans and the implication of this, is that the US Supreme Court will remain a bastion of the ultra conservative jurists as a majority with legal and constitutional interpretations stacked in favor of conservative outlook and worldview for generations, the current composition of the US Supreme Court has such ramifications.


There are of course other issues which warrants debates regarding President Obama’s nomination of Elena Kagan’s nomination. She has not held a judicial position and so, she comes to the US Supreme Court from a purely academic background as former law teacher and dean at Harvard University Law School, as well as having served at the Chicago University Law School where the then Professor Obama was himself a law teacher before his foray into American politics. But it must be mentioned that Elena Kagan is not the first nominee or appointee to the US Supreme Court and without judicial appointment on her resume.

It is not a pre-qualification or prerequisite, and there have in fact been nominees to the US Supreme Court without judicial appointment antecedents. But she is the first nominee in the preceding 40 years without judicial experience to be nominated to the US Supreme Court. Elena Kagan served in the Bill Clinton White House, she also served in academia and most until her nomination, she is currently the Solicitor General of the United States. Upon the nomination of Elena Kagan by President Obama, some observers of the US Supreme Court have wondered allowed why graduates of Harvard and Yale Law Schools now constitute the fulcrum of the highest court in the land, and as such have expressed concern as to the appearance of legal elitism at the US Supreme Court, which now no longer reflect diversity of American law schools, apart from or other than the so-called Ivy League Law Schools.

Elena Kagan, to her credit, is known to have vigorously opposed the discriminatory policy of the US Armed Forces, which requires members of the American military who are not heterosexuals to keep their sexual orientation muted and subdued in the US Armed Forces rule which is also known as “Don’t-Ask-Don’t-Tell” Elena Kagan barred military recruiters from the Harvard University Law School to protest this discriminatory rule, until she and others were overruled by the US Supreme Court. Elena Kagan was also one of three deans of American Law Schools, to have opposed the operation of Guantanamo Bay detention practices without compliance with all constitutional precepts by President George W. Bush administration

Elena Kagan if confirmed as justice of the US Supreme Court, would be the third American Jew to serve on the US Supreme Court simultaneously. And the politics is a game of numbers and balancing of competing interests of the populace which constitutes the electorate. It is important to measure and compare the US Supreme Court appointees and the demographics of the United States. African Americans are over 48 million or more 14% of the US population and American Jews are about 5.6 million or more than 3% percent of the US population, and yet, Elena Kagan will be the third American Jew to serve simultaneously on the US Supreme Court. Whereas, Justice Clarence Thomas who is currently serving on the US Supreme Court and the late Justice Thurgood Marshall are the only African Americans to have ever served on the US Supreme Court.

As a matter of diversity and demographics which truly reflects America, it is well past time when an African American woman arrives at the hallowed halls of the US Supreme Court. It is probably also about time, that another African American male also arrives at the US Supreme Court. And why not? It a surprise that an African American woman has not been nominated to high profile position of significance in the legal arena, since the failed nomination of Professor Lani Guinier by President Bill Clinton to serve as assist attorney general for Civil Rights of the United States almost twenty years ago. The fact of the matter is, African Americans remain under represented in American public and private sector positions, and African American women are particularly worse off in this regard; African American women have suffered double discrimination historically, discrimination based on race and gender respectively. President Obama can change this history of double discrimination against African American women. Mr. Obama has made two nominations to the US Supreme Court in his first fifteen months as president, there will be more opportunities in the remaining three years of his first term as president and another four years when and if Mr. Obama secures reelection in the next presidential election slated and scheduled for 2012

Surely, it cannot be the case that the very existence of a person of African descent as president of the United States should and must of necessity, foreclose and forestall the importance of having American institutions reflect the composite population of America. Regardless of who the president of the United States is and notwithstanding the heritage and cultural background of the current American president, the appointment of an African American woman and or another African American man to the US Supreme Court is long overdue. The mere fact that President Obama is a person of African American descent should not impede this clear issue of fairness and American demography.

In these matters of race, American demography and representative democracy in a plural society, a multicultural society such as the United States, a true practice diversity requires that America begin to truly reflect the true picture of the American population. African Americans, Latinos and Asians continue to be under represented in elective and appointive political and judicial positions in the United States, this, despite huge segments of millions and millions of persons of these heritages and cultural backgrounds here in the United States.

New Yorkers are excited to Elena Kagan, a New Yorker, who attended Hunter College High School in New York city, and then, subsequently attended Princeton, ,Oxford, and Harvard Universities, if confirmed, Elena Kagan will be the latest addition from New York to the United States Supreme Court epochal list of legal luminaries.