Michael Gerson thinks Kagan’s harsh criticism of the military and decision to join the amicus brief seeking to allow law schools to ban recruiters will be a problem, positing that “many Americans will find her actions offensive — with far more intensity than the White House expects.” He explains:
Kagan not only took this controversial action, she publicly attacked the policy as “deeply wrong,” “unwise and unjust” and “a moral injustice of the first order.” It will be hard to downplay an issue that Kagan has a history of grandstanding. Standing in the way of military recruiters may seem normal in academic circles, but it will seem radical in much of the country — like banning the American flag from campus to protest some policy disagreement with the government. This controversy will add to a broader narrative that “Manhattan’s liberal, intellectual Upper West Side” is disconnected from the views and values of Middle America.
This may not be enough to derail the Kagan nomination, but it will complicate it.
It does work against the Obama team’s selling point that they went for someone with “real life” experience (for real life, don’t look in Ivy League law schools) who understands ordinary Americans. Hey, it’s not an argument I favor, because the law is the law, and one’s biography really shouldn’t factor in, but this is what the left keeps spinning. It is amusing, however, that the left considers “real life” what most Americans find radical. Was Sonia Sotomayor’s support of quotas and set-asides reflective of “real life,” or did it reflect a specific victimology that infects minority advocacy on the left? Was a pack of law school deans in touch with “real life” when they sought to defy a perfectly legitimate statute that required them to afford access to recruiters?
All this goes to a more fundamental concern about Kagan. Her entire career has been spent either as a law school administrator or as an advocate (e.g., in a political position in the Clinton administration or as solicitor general). The question she was used to asking herself was: what do I want the law to be? But the business of judging is determining what the law is. Liberals see no difference — the law is what five justices say it is. But most Americans and a majority of the Court think otherwise. So the questions for her now are: how does she decide what the law is, what method does she use for separating personal conviction and constitutional interpretation, and does she have a view of the Supreme Court that is something other than as an uber-legislature? We’ll find out this summer.