We always start with the caveat, “barring unforeseen circumstances,” because you never know what will happen when the spotlight shines and the microscopes are focused.

However, short of some revelation, we can expect that the Supreme Court that starts its term in October will include Elena Kagan as an associate justice.

Kagan is not a controversial pick, or no more controversial than any selection that this or any other recent president can make during this highly polarized era in our politics.

Her appointment, in replacement of liberal Justice John Paul Stevens, does not change the political balance of the court, except perhaps to move it slightly to the right, as no justice who is as liberal as Stevens could ever be confirmed today.

Some Republicans in the Senate are sure to find reasons not to vote for her confirmation, but as a group they should not band together in an attempt to prevent the nomination from coming to a vote, barring, as the saying goes, unforeseen circumstances.

Knowing what we know now, however, this appointment tells a lot about where we are as a society.

If she is confirmed, Kagan will join a court that reflects the changes in America in the past generation. For most of our history, the court was exclusively white and male, and predominantly Protestant.

Kagan would be the third woman, and the third Jewish justice on a court with no Protestants. What’s most remarkable is that gender, religious or ethnic diversity are no longer the most important parts of the story.

What is new about Kagan’s appointment is something that would have been commonplace in the past, but is now unheard of. Like Justices Hugo Black, Felix Frankfurter and Earl Warren, the first time Kagan puts on a robe will be in the nation’s highest court. She would be the only member of the current court who did not come up through lower courts.

How her experience away from the bench balances against her lack of experience behind it should be an interesting topic for her confirmation hearings.

It’s an important conversation to have, and it should get under way as soon as possible without any unnecessary procedural delay.


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