Being Fair to Elena Kagan

The long knives are already out for Solicitor General Elena Kagan, now the latest Supreme Court nominee. Once, before the late Ted Kennedy shamelessly accused Robert Bork of being a racist, a sexist and a monster to boot, U.S. Presidents were accorded the respect by both parties in the Senate have confirmed whoever they chose for the High Court, unless the choice was so cynical or politically tainted as to demand defeat. No more. Now each nominee has to thoroughly debase herself or himself by denying the political philosophies that produced his or her nomination in the first place. The first casualty of the nomination process is integrity.

Is it too late to go back? Is it too late to be fair? I have just spent more time than was good for me listening to various radio talk show hosts today describe Elena Kagan as if she was some kind of a Leftist revolutionary. She isn’t, of course. She is a good lawyer with a distinguished career of varied and useful experiences behind her. She is nobody’s puppet and nobody’s rubber stamp. How the likes of Rush Limbaugh, or anyone, can say that Barack Obama knows how she will vote on every matter is beyond imagining. No President ever knows with certainty what a Supreme Court justice will do. President Eisenhower thought he was nominating a solid Republican moderate when he selected Earl Warren, who proceeded to lead the most liberal Court in history. Nixon nominated Berger and Blackmun as “the Minnesota Twins” who were supposedly as conservative and inseparable as Justices Scalia and Thomas today; then Justice Blackmun authored Roe v. Wade. The individuals who get nominated for the Supreme Court are  never “potted plants;” they are lawyers, and lawyers tend to have healthy egos, especially when they have been handed a lifetime position with unappealable power.

As Dean of Harvard Law School, Kagan made one decision that will be criticized in the Senate hearings, with good reason. In 2005, Kagan announced that the military could not use the law school’s recruiting resources until the Pentagon signed a pledge promising not to discriminate against gay and lesbians. The military, then as now governed by the “don’t ask, don’t tell” policy concocted in pragmatic cowardice during the Clinton Administration, refused to sign the pledge, and was banned from the campus for a period of time.

It was an unfair, illogical, irresponsible decision by Kagan in many ways, the most obvious being the same reason it is absurd for San Jose State to ban blood drives as long as the F.D.A. restricts blood donations from sexually active gay males: the application of moral absolutism in a situation that calls for balancing and proportion.  The nation was and is at war, and deliberately impeding the effectiveness of military recruitment to protest a matter of discrimination is the citizen’s equivalent of cutting off one’s nose to spite one’s face.

Proportion, Dean, proportion!

Yes, the policy is degrading, biased, and disrespectful, and it is right to work to change it, but not at the risk of national security. Her critics in the Senate will be correct: this episode did not show the good judgment one would like to see in a Supreme Court nominee. Nor did it show sound or fair reasoning: the Pentagon was merely following a law it did not write. Then-Dean Kagan’s demand would have required the Pentagon to defy the law.

There was more: Harvard Law School, under her leadership, joined with other law schools to argue in court that the military’s policy would put schools in violation of Federal anti-discrimination laws, a claim that was ultimately and overwhelmingly rejected by the U.S. Supreme Court.

This was a bad stretch for Kagan, no doubt about it, but she deserves some mercy for context. Harvard is an over-heated liberal enclave, and an administrator is often put in the position of being rational, or being successful. The current dean of the law school, after all, recently felt it necessary to condemn the politically incorrect sentiments in a six month old private e-mail that a student’s maliciously-motivated former friend released to the world.  This shouldn’t excuse Kagan, but her critics ought to apply the principle of fairness that she forgot in 2005, proportion. Her handling of this politically charged campus issue while immersed in academia doesn’t burnish her reputation for good judgment and the courage to resist institutional pressure, but it shouldn’t  wreck it, especially since this her acting in the role of a law school dean, not a judge or lawyer.

The fair conduct toward Elena Kagan, the President, and the Supreme Court, is to give her the benefit of the doubt, and him the opportunity to have the justices he wants on the Court. The fair conduct, if the Republicans would like to start turning back the clock to those pre-Borking days, when the tenor of confirmation hearings was dominated by respect, is to put those long knives away, and confirm Elena Kagan without the usual inquisition.

5 thoughts on “Being Fair to Elena Kagan

  1. I agree on all points.

    Kagan may be liberal, but the President is entitled to nominate someone to his ideology. I see no reflexive, overarching liberalism in what little public record she has (unlike Associate Justice Sotomayor, who seems to be activist and reflexive).

    Kagan seems thoughtful and deliberative, and I am inclined to want the Senate to approve her if the most damaging thing she did is the incident at Harvard, for all the reasons you mention.

  2. I’m unhappy over the Harvard incident. DADT is not—and never was—merely anti-gay policy of bigoted generals. It was the law of the land, enacted in 1993 to prevent President Clinton from allowing openly gay people to serve. When Harvard—and Kagan—opposed cooperation with military recruiters they were opposing legitimate national defense activity, being carried out in accordance with the law. I don’t know whether to criticize her judgment or her respect for the law or her indifference to the difference between law and policy.

    She’ll have a chance to explain.

    • It’s interesting: a few commentators have proposed that all Ivy League administrators be accorded the benefit of a kind of Bizarro World exception: when you’re in an inflexible, liberal enclave, you’ll be excused for making crazy statements and decisions that allow you to avoid strikes, protests, or losing your job. Not the best way to find courageous justices, however.

  3. It’s especially silly because the “usual inquisition” is a political charade that is top-of-the-line vapid even when compared to its inane competition. Nominees cannot, and should not, answer legal questions that have not been presented in a legal context, any more than a scientist should be asked whether he or she thinks that Formula X cures cancer. These questions can be answered only after the grillee actually does the job in contention — perform expert-level research, analysis, and evaluation on questions that are imporant enough to require it. The hearings have come to consist largely of questions that everyone knows the nominee won’t answer. Why use them as meaningless political grandstanding to parade views we all know about already? I was as delighted with Sotomayor’s nomination as I was dismayed with Scalia’s, and other people legitimately held opposite views. But nobody with a lick of sense could argue that the only relevant question — does this person have the legal credentials, maturity, and judgment for this demanding and important job? — was anything but a no-brainer for either nominee. Note to Senate: Advise, consent, and get on to more important work.

  4. Pingback: The Kagan Hearings: The Right Thing For Republicans To Do « Ethics Alarms

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