Ramesh Ponnuru makes an excellent point:
Elena Kagan helped to keep military recruiters from having equal access to the Harvard campus — based on what she called “the military’s policy” on don’t ask, don’t tell. When Congress voted to deny Defense Department funds to universities that discriminate against the military, she joined an effort to fight the law (called the Solomon amendment) in court. In effect, she was arguing that the school had a constitutional right to get government funding while discriminating against military recruiters. The Supreme Court ruled unanimously against the universities.
So on this issue it is hard to argue that Kagan was within the judicial mainstream. Her position is, additionally, hard to defend.
But that may not be the worst of it. The exclusion of openly gay men and lesbians — which I agree should be repealed — is not the military’s policy. It is a law that was enacted by Congress and signed by President Clinton. That didn’t stop Kagan from serving in Clinton’s White House. Nor did her opposition to what she considered the deep injustice of the policy move her to support continuing to discriminate against the recruiters when that would have required turning down some federal money.
So the military alone was supposed to pay a price for her principles — not politicians, and not the university.
Kurt Andersen also makes an interesting point on Facebook: It will, or should, be problematic for any Republican Senator who was in the Senate in 1999 to attack Elena Kagan’s appointment on the grounds that she has limited experience, since her experience is limited due in some measure to the Republican Senate in 1999. That year, her nomination to the D.C. Circuit Court of Appeals was tabled by the Republican-dominated Senate, as were all upper-court appointments by the Clinton administration, since there was an election looming and Clinton was a lame duck. This was a nakedly partisan ideological decision undertaken in part because the same had been done to Republican administrations by Democratic-dominated Senates in 1987-8 and 1991-2.