Two Leading Contenders for Justice Stevens’s Supreme Court Seat Are Jewish

By Nathan Guttman

Published April 09, 2010, issue of April 23, 2010.

Jewish representation in the Supreme Court could reach a historic high following the April 9 announcement of Justice John Paul Stevens’s retirement.

Two of the three leading candidates to succeed Stevens are Jewish jurists: Solicitor General Elena Kagan and Judge Merrick Garland. Currently, two of the nine Supreme Court members, justices Ruth Bader Ginsburg and Stephen Breyer, are Jewish.

In a letter addressed to President Obama, Stevens, who will turn 90 on April 20, announced that he would step down at the end of this judicial term in June. Stevens, the leading liberal voice on the highest court, wrote that he has decided to announce his retirement before the term’s end to allow the president enough time to appoint a successor.

Solicitor General Elena Kagan, 49, was on Obama’s short list for a Supreme Court nomination last year, after the retirement of Justice David Souter, but Sonia Sotomayor got the post. Later, Obama appointed Kagan to be solicitor general, making her the first woman to hold the office. Prior to taking the job, Kagan was dean of Harvard Law School.

Garland, 57, sits on the federal appeals court in Washington and was formerly a senior official with the Department of Justice. According to analysts, Garland is the least controversial among the candidates mentioned for the post and could easily win Senate confirmation.

The third possible nominee being mentioned is Judge Diane Wood, 59, of the federal appeals court in Chicago.

In 1916, Louis Brandeis became the first Jew to serve on the Supreme Court. Since then, there have been six other Jewish justices.

If either Kagan or Garland is chosen and confirmed, the Jewish representation on the Supreme Court will grow to one-third, with the other two-thirds being Catholic. If this happened, the next Supreme Court would be the first without a Protestant.

“I really think we’ve passed the point in American history where having three Jewish justices on the Supreme Court will be an issue for most people,” said Rabbi David Saperstein, director of the Religious Action Center of Reform Judaism. He added that possibly having no Protestant justice member on the court could be seen as a lack of diversity, but he also stressed that this has more to do with the court having six Catholic justices.

While the retiring Stevens was known as the top liberal on court, Jewish groups hold different opinions on his approach toward issues of religious rights. The Anti-Defamation League put out a statement praising Stevens as a “staunch and tireless defender of civil rights and religious liberty” who worked to uphold the separation of church and state. Others, however, pointed to his decision to side with the majority opinion in a 1990 case that became a key ruling on religious rights. In the case, known as Employment Division v. Smith, the court ruled that states are not required to accommodate religious acts if the acts are considered illegal. The case involved the use of a ritual drug by some Native Americans.

Both Kagan and Garland are considered to hold views more in line with the Jewish community consensus that advocates more sensitivity for religious rights in schools and workplaces and at the same time insists on the strong separation of religion and state.

But Kagan has been harshly criticized by some liberals for her support of expansive executive powers of the sort claimed by presidents George W. Bush and Obama to combat terrorism. On this front, they say, Kagan’s ascension to a bench with a narrow one-vote majority on many national security cases would turn the Supreme Court rightward.

Contrary to Stevens, for example, Kagan strongly backed the presidential right to imprison so-called enemy combatants indefinitely without the right of habeas corpus — to have a case heard before an impartial judge. In the 2004 case of Hamdi v. Rumsfeld, in which the Supreme Court rejected this claim, Stevens went further than most of the other justices, stating, with Antonin Scalia, that Hamdi, as an American citizen, must be granted full due process — including formal charge and trial — or released.

At the other end of the spectrum, some conservatives have excoriated Kagan for her support, as dean of Harvard Law School, of Harvard’s longstanding policy of barring the military from recruiting on campus because of the armed forces’ refusal to end discrimination against gay men and women.

Contact Nathan Guttman at guttman@forward.com



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