President Barack Obama is reportedly considering nominating Solicitor General Elena Kagan to the US Supreme Court, and the Daily Beast’s Peter Beinart of all people has found a left-wing decision in her past that “conservatives will be right” to blast her over, and “liberals should concede the point”: her decision as Dean of Harvard Law School to oppose military recruiters on campus over the “Don’t Ask, Don’t Tell” policy:
“I abhor the military’s discriminatory recruitment policy,” wrote Kagan in 2003. It is “a profound wrong—a moral injustice of the first order.” So far, so good. Not allowing openly gay and lesbian Americans into the military is a grave moral injustice and it is a disgrace that so many Republicans defend the policy to this day. But the response that Kagan favored banning military recruiters from campus—was stupid and counterproductive. I think it showed bad judgment.
The United States military is not Procter and Gamble. It is not just another employer. It is the institution whose members risk their lives to protect the country. You can disagree with the policies of the American military; you can even hate them, but you can’t alienate yourself from the institution without in a certain sense alienating yourself from the country. Barring the military from campus is a bit like barring the president or even the flag. It’s more than a statement of criticism; it’s a statement of national estrangement.
The rest of the article suggests Beinart’s real problem is how this story will feed into the perception that liberals aren’t patriotic (gee, now how would people get that impression?), but the question he poses is a good one: at what point does disagreement over an institution’s policies make it something to be shunned? For Kagan, rational, honorable people apparently can’t disagree about the wisdom of open homosexuals in the military, never mind the fact that, as John Guardiano’s extensive exploration of the issue for NewsReal shows, the issue involves substantive questions of military effectiveness that have no relation to bigotry and say nothing about the moral worth of gay Americans. Evidently, not even the organization dedicated to protecting all Americans (even gays) from her enemies (who currently take a decidedly-more hostile view of gays than Republicans) deserves to be cut a little slack.
I have no doubt that more left-wing baggage will come to light if Kagan actually receives the nod, but as far as I’m concerned, this alone is enough to illustrate Ann Coulter’s recent lesson that no Democrat nominee is going to be moderate. Kagan apparently thinks that homosexuality is like race in that it has no behavioral component (or at least no behavioral component that anyone else is allowed to factor into their decision-making), and she shows no awareness of the practical conditions within the military to which sexual attraction could be germane.
Indeed, if she became a Justice, one wonders if she would be able to distinguish cases like DADT, where one’s orientation is an employer’s legitimate concern, and cases where it wouldn’t be, such as forbidding gays from teaching in public schools (which, by the way, no less a social conservative than Ronald Reagan opposed). Further, the hyper-emotional rhetoric—“moral injustice of the first order”—is a good indication that “empathy” would take precedence over constitutional analysis in her judgment.
It’s not much of a stretch to predict that Elena Kagan would be inclined to use her vote to crusade against other perceived “profound wrongs,” and that, in other military-related cases to come her way, she’d be prejudiced against an institution she believes capable of grave “moral injustices.” Not that you’ll take my advice on this decision, Mr. President, but you’d do well to scratch the Solicitor General off the list.