Although records from her years in the Clinton administration may raise other concerns, at this stage, the most significant vulnerability for Supreme Court nominee Elena Kagan is her position in opposing giving military recruiters access to Harvard Law School because of the armed services’ Don’t Ask, Don’t Tell policy. This is problematic in two respects.
First, as Bill Kristol observes, the level of invective directed at the military is noteworthy:
Notice, time and again [in her letters]: “the military’s discriminatory recruitment policy,” “the military’s policy,” “the military’s recruitment policy,” “the military’s discriminatory employment policy.”
But it is not the military’s policy. It is the policy of the U.S. Government, based on legislation passed in 1993 by (a Democratic) Congress, signed into law and implemented by the Clinton administration, legislation and implementation that are currently continued by a Democratic administration and a Democratic Congress. It is intellectually wrong and morally cowardly to call this the “military’s policy.” Wrong for obvious reasons. Cowardly because it allowed Kagan to go ahead and serve in the Clinton administration that enforced this policy she so detests, and to welcome to Harvard as Dean former members of that administration, as well as Senators and Congressmen who actually voted for the law–which is more than the military recruiters whom Kagan sought to ban did.
In addition to her attitude toward the military, one has to question her ability to put aside policy preferences and biases when engaging in constitutional analysis. She joined an amicus brief seeking to set aside as unconstitutional the Solomon Amendment, which required schools to allow military recruiters on campus. Stuart Taylor has suggested that “the Administration will have no trouble describing General Kagan’s position as reflecting that of Harvard as an institution — a position that was broadly shared among the nation’s elite Universities.” Well, that Ivy League institutions are uniformly hostile to the military and that Kagan made a constitutional argument based, it seems, on political conviction will hardly help matters. Recall, Kagan’s position lost 8-0. That’s as far out of the mainstream as you can get.
Is this grounds for opposing Kagan? Maybe not, but it also depends on what she says, what she’s written, and why she thought the Solomon Amendment was unconstitutional. This is what confirmation hearings are designed to explore.