'To unmask falsehood'
Q: In appointing a new Supreme Court Justice to replace John Paul Stevens, President Obama was seeking someone who could provide intellectual and personal leadership of the liberal block. His gamble in nominating Elena Kagan is bringing in someone from outside the 'priesthood' of appeals-court judges. What are the advantages and disadvantages of selecting a leader with non-traditional qualifications?
It's tough to consider someone "non-traditional" with a Princeton-to-Harvard-to-Oxford education, followed by years in the White House, University of Chicago, Harvard, and Justice Department. These are hardly buzzwords associated with a nonconformist or rebel.
Nonetheless, she wasn't an appellate court judge -- though she was nominated to be one, and disappointed not to become one. Hence her judicial views are a bit more obscure, and her liberal reliability less certain.
But that's frequently - indeed, increasingly infrequently - the case. The clearer a nominee's views, the more controversial that nominee could become, and hence the less likely that nominee would be nominated in the first place. While "clarity is courage" in writing, it's foolhardiness in nominating. See "Bork, Robert" for elaboration.
Less clarity means less reliability, though this too is often the case. "We know what we are, but not what we may be," comes Ophelia's flash of insight inside her madness. Uncertainty prevails on court selections. We know what Solicitor Kagan is, but not what she "may be" as Justice Kagan.
In Shakespeare's seven stages of man - which begins "All the world's a stage, and all the men and women merely players" - the fifth is "the justice, in round belly with... eyes severe" who's "full of wise saws" (well-reasoned legal rulings) and "modern instances" (new situations which may provoke new rulings).
In the upcoming confirmation process, Ms. Kagan must show respect for the "wise saws" -- precedents set by past courts or even by the Founding Fathers - yet be open to "modern instances," on which the Constitution cannot be awfully clear.
After the "sound and fury" of the confirmation process, Senators may decide that she would become "a worthy judge -- You know the law, your exposition has been most sound" (Merchant of Venice).
Then comes her big challenge, and opportunity. As Shakespeare says, "Time's glory is to calm contending kings, to unmask falsehood, and bring truth to light."
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