J.J. Goldberg

How Many Jews Does It Take To Light Up a High Court Firestorm?

By J.J. Goldberg

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Does anybody care if there are three Jewish justices on the Supreme Court? We’re about to find out. The first few hours since Elena Kagan’s nomination have seen a low-grade but steady buzz about the court’s religious balance that sort of dances around the topic. This Washington Post blog leads off with the absence of Protestants on court and solicits the opinions of three talking heads, including Arthur Waskow as the Jewish voice. Of the three panelists, only Protestant theologian Martin Marty reluctantly concludes that religion matters, not on its merits but because that’s how Americans are.

Nina Totenberg raised the topic gingerly in a National Public Radio piece a month ago, when John Paul Stevens first announced his retirement.

Let’s face it: This is a radioactive subject. As Jeff Shesol, author of the critically acclaimed new book Supreme Power, puts it, “religion is the third rail of Supreme Court politics. It’s not something that’s talked about in polite company.” And although Shesol notes that privately a lot of people remark about the surprising fact that there are so many Catholics on the Supreme Court, this is not a subject that people openly discuss.

Note that Totenberg is willing at least to discuss the fact that people don’t discuss the Catholic issue, which is sort of like discussing it. Jews get mentioned as a statistic — three out of nine — but without follow-up discussion about what it would mean to discuss it, if you follow me. If religion is radioactive, Jews are weapons-grade plutonium.

The New York Times fairly begs for a discussion in its sidebar profile of Kagan, which manages to bring up her bat mitzvah in the very first sentence. Apparently she got into a fight (no hint what it was about) with the rabbi at the synagogue, which is described as “conservative” (small C — it’s not clear whether it’s an accident or a way to change the topic).

The only fully-developed examination I’ve found of what three Jews would mean to the court is this piece by Kevin MacDonald on his white-rights website Occidental Observer. MacDonald is a psychology professor at Cal State-Long Beach who’s best-known for his unabashed, vehement and conspiratorially-minded dislike of Jewish influence in Western society. Discussing Kagan a year ago, when her name came up to replace David Souter, he wrote:

Kagan’s candidacy raises a number of issues. If nominated and confirmed, there would be three Jewish justices on the Supreme Court — all on the left. Jews are of course always overrepresented among elites — especially on the left, but 33% is high by any standard given that Jews constitute less than 3% of the US population. This is much higher than Jewish representation in the US Senate (13%) and the House of Representatives (~7%). The last time I checked, if there were three Jews on the Supreme Court, the percentage would be about the same as the percentage of Jews among the wealthiest Americans.

Jews as one-third of the Supreme Court seems sure to raise the eyebrows among people like me who think that Jewish identity often makes a big difference in attitudes and behavior. …

We’ll probably be seeing a lot more chatter like that on the Web and around the margins of polite society in the weeks ahead. In the mainstream it will mostly be hinted at in discussions about Protestants and Catholics (not that the Christian vs. Christian issue isn’t a substantive one in its own right). But some of it may already be edging close to the surface, depending on how you want to interpret Texas Republican Senator John Cornyn’s questioning Kagan’s background in the “rarified atmosphere” of

Harvard Square, Hyde Park, and the DC Beltway. These are not places where one learns how ordinary people live.

One concern I’m still waiting to hear about is her late father’s service, according to the N.Y. Times, on the board of the West End Synagogue in Manhattan. By background, at least, this would make her the first Reconstructionist on the high court. Unless you count post-Civil War Chief Justice Salmon Chase back in the swinging (18)60s.


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