In his introduction to an edition of Montesquieu’s Esprit des Lois, Oliver Wendell Holmes wrote:
What proximate test of excellence can be found except correspondence with the actual equilibrium of force in the community -- that is, conformity to the wishes of the dominant power? Of course, such conformity may lead to destruction, and it is desirable that the dominant power should be wise. But wise or not, the proximate test of a good government is that the dominant power has its way.
Whether this passage is notorious or reassuring depends entirely on the perspective of the reader. By no coincidence, the “dominant power” at the time of its writing, 1900, was also the class from which Oliver Wendell Holmes sprung, the Eastern Anglo-Saxon Protestant Establishment.
Contemporary conservatives might have expressed outrage at Sonia Sotomayor’s “Wise Latina” comments during her confirmation hearing, but her vague, sentimental promise of social uplift is patently less activist than Holmes’s full-throated call for WASP justice. Not even Ruth Bader Ginsburg would be so bold as to declare that opinions should be assessed on the degree to which they conform to “the necessities of the times, the prevalent moral and political theories, intuitions of public policy...even the prejudices which judges share with their fellow men.”
As Holmes acknowledges, ruling classes can be foolish and (self-)destructive. And though there isn't room here to diagnose the cause of WASP dissolution, the truth of it was laid bare today with Barack Obama’s nomination of Solicitor General Elena Kagan to the Supreme Court. Assuming Kagan’s confirmation, the bastion of the prejudices and aspirations of the American ruling class will be composed of six Catholics*, three Jews, and precisely zero white Protestants.
Perhaps Kagan’s Jewishness isn’t as remarkable as her Kagan-ness. The fact that the former dean of Harvard Law School shares the same surname as the doyen of neoconservaitve foreign policy and architect of the “surge” strategy reveals an extended clan that rivals in power any Anglo family of the past. Elena even eerily looks a lot like Robert.
Conservatives and the Tea Partiers will, no doubt, criticize Kagan on the basis of her opinions on the Constitution and scope of government. They should learn from Oliver Wendell Holmes that when it comes to power, Who? is a far more important question than How much?
*The postwar intellectual Right has been peculiarly Roman Catholic in make up, as have been the movement-backed Republican appointments of justices Scalia, Thomas, Roberts, and Alito. It’s safe to say that the Founding Fathers would have been as bewildered by the presence on the court of six Roman Catholics as three Jews.