Voting against Sotomayor entailed voting against the first Hispanic nominee to the Supreme Court. That's a tough vote to cast if you're a Republican. (If Obama had nominated Kagan first and Sotomayor on Monday, it would be even tougher because of Arizona's racial profiling law.) But Kagan is not the first woman on the Court, or the first Jew, or even the first Jewish woman. It's safe to vote against her, and I expect many Republicans will.
Somehow, it doesn't occur to either of them to mention
that Kagan is less controversial because she's white, because
she's not the first woman on the Court, the first Jew, or even the first
Jewish woman. Her nomination to the Court isn't perceived as a
usurpation of a position of power meant for white
people. And it's really quite odd that Green and Ponnuru conclude that Sotomayor wasn't "safe" to vote against. Only nine Republicans voted for her. How is a vote in which three-quarters of the party's caucus votes "no" not a safe "no" vote?
I find the hand-wringing over this interesting because I can't imagine a scenario in which Sotomayor could have been confirmed with Kagan's resume. Kagan's career beyond being dean of Harvard Law has consisted almost entirely of giving private legal advice. She has written a couple of highly praised pieces of scholarship, but she's never been a judge. Because of the slim paper trail, the most relevant professional skill of Kagan's that emerges isn't her legal brilliance but her ability to navigate and manage the circumstances of cloistered, elite settings, whether we're talking about Harvard, the Senate, or the White House.
Meanwhile, Sotomayor has been a district attorney, served as a judge, and worked on issues as diverse as civil rights and campaign finance. Despite all this relevant experience and having graduated summa cum laude from Princeton and excelled at Yale, she was attacked not just as unqualified but as stupid by people who hadn't even bothered to read her writings.
Many conservatives took those attacks as gospel, because they already
knew what they wanted to think about Sotomayor. At National Review alone, Mark Hemingway called her "dumb and obnoxious," and Mark Krikorian agreed.
John Derbyshire said the fact that she's female and Hispanic is "all that matters." Ponnuru himself, now biting his nails with anxiety over the oppression facing Kagan, compared Sotomayor to Harriet Miers, who didn't have a tenth of Sotomayor's qualifications.
While Republicans have certainly raised questions about Kagan's qualifications and leveled sexist attacks, they haven't questioned her intelligence to the degree that they did with Sotomayor, which is interesting given her lack of a paper trail. Even Ed Whelan wrote, "I have plenty of respect for Kagan’s intellect and ability." A recommendation from political elites is enough to fortify Kagan's reputation.
The reason for this is pretty simple: A white person with an Ivy League pedigree will almost always be seen as smart, while a person of color with an Ivy League pedigree will be seen, among those for whom such things cause a certain kind of existential anxiety, as the recipient of an undeserved handout. For anyone wondering why even people of color with degrees from elite institutions have a harder time finding jobs than whites from the same institutions, we have a case study in the power of social capital over relevant job experience.
Precisely because Kagan is, as Green writes, not the first woman nominated to the Court, or the first Jew, or even the first
Jewish woman, she has not been met with the instinctive anger that Sotomayor was. But Green and Ponnuru don't find this worthy of discussion. They've chosen to focus on the tragic difficulties white people have getting confirmed to a Court in which a total of three justices have not been white, a Court that now has two people of color on it for the first time in the history of the United States. I suppose it's possible Kagan will get fewer votes because Republicans will feel "safer" voting against her because she's white, but she's also going to miss out on the specific kind of shitstorm Sotomayor had to face.
-- A. Serwer