Back when Chief Justice William Rehnquist died, I went on record saying he should be replaced by another Lutheran. I was joking but it looks like I was onto something. Sarah has covered the stories leading up to this moment, so it's no surprise to GetReligion readers, but the Supreme Court is sans Protestants. And with the nomination of Elena Kagan, that doesn't look like it's going to change any time soon. Sheryl Gay Stolberg, Katharine Q. Seelye and Lisa W. Foderaro worked together on a large profile of Kagan for the New York Times. They paint a picture of a woman who has wanted to be a Supreme Court justice since at least the time in high school when she posed as a judge for a photo. Some people find that troubling. I rather admire it. I remember doing something bad as an adolescent and having my mom tell me that I could never run for president if I kept that kind of behavior up. If only I knew how much you could get away with and run for president . . . but I simply opted to forego my dreams of higher office and instead enjoy my youth! Can't say I regret the decision.
Okay, in any case, the Times profile has a bit of religion. Here's how it begins:
She was a product of Manhattan's liberal, intellectual Upper West Side -- a smart, witty girl who was bold enough at 13 to challenge her family's rabbi over her bat mitzvah, cocky (or perhaps prescient) enough at 17 to pose for her high school yearbook in a judge's robe with a gavel and a quotation from Felix Frankfurter, the Supreme Court justice.
Unfortunately, we don't learn terribly much about why she was challenging the rabbi. From later in the story:
The young Ms. Kagan was independent and strong-willed. Mr. Lubic recalls her bat mitzvah -- or bas mitzvah, as it was then called -- in a synagogue where Elena clashed with the rabbi over some aspect of the ceremony.
"She had strong opinions about what a bas mitzvah should be like, which didn't parallel the wishes of the rabbi," Mr. Lubic said. "But they finally worked it out. She negotiated with the rabbi and came to a conclusion that satisfied everybody."
I'm afraid to draw any larger conclusions about what this means. Was she quibbling about a doctrinal aspect or something unimportant? I think the answer would be more illuminating than what we're given.
In any case, that's about it for discussion of religion. Having said that, the profile is very deeply sourced. It's clear that the reporters are able to tell a story about a judge with Kagan's background much better than they are able to with a Roberts or Miers. The reporters clearly share some of the same circles as Kagan and it shows. It's a profile that could have been written by Kagan's own mother, actually, it's just that nice. I'm actually not opposed to such gentle treatment in the early days that news breaks, although it does stretch the puffiness quotient a bit. Still, this profile is a great one to read if you want to know more about how Kagan wishes to present herself. Of course, you could have learned the same information from this LA Times profile that ran last year when her name was floated for last year's vacancy.
One of the problems, of course, is that folks on all sides of various issues would like to know a heck of a lot more about Kagan than she has chosen to reveal about herself. She has no judicial experience and almost none as a litigator. There's no paper trail -- she has avoided weighing in on contentious issues for decades. There's no question that Kagan is a tried and true liberal but some liberal advocates wished for a more openly liberal justice. First Amendment purists are worried about one of the only things she's written -- a defense of regulating "hate speech" and pornography. Pro-lifers are scared about her views on abortion and other life issues.
The Associated Press has a story out that looks at a political compromise Kagan made when she worked for President Clinton. It's not the fault of the reporters but it doesn't say anything about her views on abortion but what her team's views were on political compromise.
There is something amusing about some of the coverage we get about the Supreme Court. Take this Time article which describes Anthony Kennedy as "reliably conservative." As the article later notes, he's so "reliably conservative" on most issues that he's "swung to the left on gay marriage and the death penalty and on the question of executive power in counterterrorism. He has supported Roe v. Wade, but voted for limits on partial-birth abortion. He sided in favor of upholding the First Amendment right to burn the flag." You know, that kind of reliable conservative. The angle of the story is that Obama chose Kagan because she might be able to sway Kennedy. It's just good to be aware of some of the narratives that will be advanced by various media reports.
Back to the more overtly religion news. The nomination of Kagan means that the court will be one-third Jewish. Not bad for a group that represents around 2 percent of the population. What does it mean that Catholics and Jews dominate the court? The only recent entry into that discussion that I saw came in the Boston Globe. I have to say that I thought Lisa Wangness did a great job of exploring the "so what" in her piece:
"This whole project of a Protestant America is really going under, and it's going under quickly," said Stephen Prothero , a professor of religion at Boston University and author of "God is Not One: The Eight Rival Religions that Run the World -- and Why Their Differences Matter."
Kagan's nomination, he said, "is an important moment of saying, 'Look, we've gone so far beyond the idea that this is a Protestant country that we can have a court with six Catholics and three Jews."
Martin E. Marty , professor emeritus at the University of Chicago Divinity School, said that these days, the question of whether there should be a distinctly Protestant voice on the court would elicit "a big yawn" from most mainline Protestants.
"I was in an Episcopal church in Chicago on Sunday, and there were a lot of movers and shakers there -- but we didn't sit around after and say, 'How can we get one of us on the Supreme Court?' " he said.
Evangelical Protestants have been slow to embrace, or to feel welcomed by, the elite law schools like Harvard and Yale that have become a veritable requirement for Supreme Court nominees. One reason for this, some scholars say, is because of an anti-intellectual strain within evangelicalism.
"Evangelical Christianity has tended to be a populist religion that's strongly democratic -- in urging people to read the Bible themselves," said Mark A. Noll , a history professor at the University of Notre Dame. "All these are traits that have positive sides, but not for intellectual preparation and education."
Not bad -- good quotes from a variety of sources. The dearth of Protestants means a lot of things and there are many different angles one can use to explore what it means. What would be interesting to me, of course, is more of a discussion about how the religious views of a given justice affect the way he or she decides a case. It will be harder than normal to explore that issue with Kagan, but I hope some reporters try.