With Justice Stevens retiring, people are talking about Solicitor General Elena Kagan for the Supreme Court, again (see 2004 and 2009).
Some have suggested that President Obama would not nominate Ms. Kagan because she is Jewish. The Harvard Crimson writes:
Kagan’s religious affiliation may also impede her nomination. Justice Stevens is the Court’s only Protestant, and if Kagan, who is Jewish, were appointed, the court would be composed of six Catholics and three Jews.
According to Tushnet, that issue “has not quite surfaced yet,” but there have been some indications that it could factor into Obama’s decision.
Picking up on the same point, NBC Chicago points out Diane Wood might be a more likely candidate, for her Protestancy:
Also, in a quirk of history, Stevens is the lone remaining Protestant on the Supreme Court. (A hundred years ago, all the judges were Protestant.) Wood could fill in for him there, too: she lives in the suburbs, plays oboe in the North Shore Chamber Orchestra and is on her third husband.
It’s hard to get much WASPier than that.
But I see another reason why Kagan might not be nominated: Her defense of a law prohibiting aid for Hizballah, as recorded in the New York Times:
Solicitor General Elena Kagan defended the law at issue in the case, which bars providing material support to terrorist organizations, as “a vital weapon in this nation’s continuing struggle against international terrorism.”
Even seemingly benign help is prohibited, Ms. Kagan said.
“Hezbollah builds bombs,” she said of the militant Islamic group. “Hezbollah also builds homes. What Congress decided was when you help Hezbollah build homes, you are also helping Hezbollah build bombs. That’s the entire theory behind the statute.”
I can see President Obama overlooking Ms. Kagan's Jewish roots, or even favoring them as a way to balance his horrible press over Israel ("Some of my best friends are Jewish..."). But a justice who openly declares that Hizballah builds bombs? No way this candidate makes it on to that man's court.