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Archive for May, 2010

By Gil Troy, The Globe & Mail, 5-17-10

Did Elena Kagan somehow lose her voice and soul while climbing her way to the top?

Ms. Kagan reveals she is one of Bork’s babies

For New Yorkers born in the 1960s, U.S. President Barack Obama’s nomination of Elena Kagan to the Supreme Court triggered the frissons of pride and envy many of us feel when someone our age and from our humble background makes it.

But Ms. Kagan’s careerist conundrum is particularly fascinating. Did this woman with the perfect Princeton-Oxford-Harvard résumé somehow lose her voice and her soul while climbing professionally as deliberately as she did?

To be fair, to young New Yorkers in the 1970s, the notion of a woman sitting on the Supreme Court was downright revolutionary. Ms. Kagan’s nomination is the ultimate Free to Be … You and Me moment.

Back in 1972, Marlo Thomas and some celebrity friends released a gender-bending, mind-expanding series of songs, poems and stories that became a best-selling album and book, as well as an Emmy-award-winning television special.

The football great Rosey Grier sang It’s All Right to Cry, encouraging boys to show their emotions, too, because “crying gets the sad out of you.” A pre-disco Diana Ross sang When We Grow Up, reassuring youngsters, “Well, I don’t care if I’m pretty at all/And I don’t care if you never get tall/ I like what I look like and you’re nice small/ We don’t have to change at all.” Alan Alda and Marlo Thomas performed William’s Doll, with William ultimately being vindicated after being taunted by his friends: “a doll, a doll, William wants a doll.”

All this delightfully iconoclastic feminist propaganda paved the way for an unmarried 50-year-old woman to become what she dreamed of becoming.

And yet, Ms. Kagan’s résumé seems too perfect. She may have forgotten the essential message of Free to Be … You and Me’s title song: “Every boy in this land grows to be his own man. In this land, every girl grows to be her own woman.” This woman, who posed in judicial robes for her Hunter College High School yearbook, may have been too calculating in climbing to the top. She has taken remarkably few public stands, entered into surprisingly few public controversies for a woman of her prominence and power. Even her academic writings focused on safe analyses of administrative law while other law professors debated issues passionately.

In this way, Ms. Kagan reveals she is one of Bork’s Babies, a product of the searing battle that resulted in the Senate’s rejecting Ronald Reagan’s Supreme Court nominee Judge Robert H. Bork in 1987. At the time, ambitious law clerks like Ms. Kagan watched how critics vacuumed through Mr. Bork’s past, blasting decades-old articles he authored, even snooping into his video rentals seeking something embarrassing – turned out Mr. Bork liked Fred Astaire movies. From then on, many of my Washington-oriented friends openly worried about their “paper trails.” Their moral calculus was blunted, replaced by the ubiquitous question, “How will it look in my confirmation hearings?”

As a result, cadres of careerists trudged ahead in America’s anxious army of the ambitious. Warned not to rock the boat, always looking ahead to the next promotion, their motto was “CYA,” which, less crudely rendered, meant cover your backside. Many of these cool, pragmatic technocrats have climbed high in corporate America and in politics – but at what cost?

If Elena Kagan is confirmed, she will join America’s most elite club, which has become the preserve of Ivy League meritocrats. Atop the Supreme Court building on Capitol Hill, just below the motto, “Equal Justice Under Law,” we may have to add a sign saying: “No country judges need apply – not even State law school graduates.”

Still, we do not know how Ms. Kagan will act. She may prove to have been a phony phoenix, emerging, after years of hiding it, as a full-throated ideologue. Alternatively, decades of calculated accommodating might keep her building bridges as she did when she was dean of Harvard Law School.

Regardless, as a professor and a parent, I wonder: Do I advise my students and my children that they are “free to be you and me?” Or, to go as far as some want to go, must they squelch their voices, round their edges, and be the corporate careerists that excessive media scrutiny in a polarizing political culture demands they be?

Gil Troy is a professor of history at McGill University and a visiting scholar at the Bipartisan Policy Center in Washington.

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