Commentary Magazine


Topic: correct constitutional law

Apologize, Ms. Kagan

That’s what Peter Beinart says Elena Kagan should do to put the military-recruiting issue behind her. Beinart thinks “Don’t Ask, Don’t Tell” is immoral. (Well, Kagan’s boss Bill Clinton put the policy in effect, so maybe Kagan should be asked what input she gave on that decision.) Still, he writes that banning recruiters from campus was wrong:

The military, like Congress, the courts, and the presidency, is one of our defining public institutions. To question its moral legitimacy is not like questioning the moral legitimacy of General Electric. And that’s exactly what banning the military from campus does. It suggests that Harvard thinks not just that the military’s anti-gay policy is immoral (which it emphatically is) but that the institution itself is immoral. It’s like refusing to sing the national anthem because you’re upset at the Bush administration’s torture policies or refusing to salute the flag because of the way Washington responded to Hurricane Katrina. It’s a statement of profound alienation from your country, and will be received by other Americans as such. I hope Elena Kagan gets confirmed. She’s smart, young, and liberal, and the court could use another woman. It’s all quite logical. But when it comes to military recruitment, I hope she apologizes. Nothing would send a better message to liberals on campus, and to the men and women in uniform who defend them. It would be a terrific way to start her career on the highest court in the land.

But is apologizing enough? Consider that the decision was not simply an administrative matter but also a revelation of her legal mindset.

It was not only wrong, as Beinart argued, to ban recruiters; it defied a federal statute that required the law schools to allow recruiters on campus. What does this say about her respect for congressional policy-making? And her constitutional analysis? Remember, she was not simply advocating on behalf of a client, as she has done for the administration. Here, she was advocating what she fervently believed was correct constitutional law. She and her law-school mates came up with a cockamamie argument that her hero, Justice John Paul Stevens, didn’t even buy.

An apology would be smart. But not sufficient.

That’s what Peter Beinart says Elena Kagan should do to put the military-recruiting issue behind her. Beinart thinks “Don’t Ask, Don’t Tell” is immoral. (Well, Kagan’s boss Bill Clinton put the policy in effect, so maybe Kagan should be asked what input she gave on that decision.) Still, he writes that banning recruiters from campus was wrong:

The military, like Congress, the courts, and the presidency, is one of our defining public institutions. To question its moral legitimacy is not like questioning the moral legitimacy of General Electric. And that’s exactly what banning the military from campus does. It suggests that Harvard thinks not just that the military’s anti-gay policy is immoral (which it emphatically is) but that the institution itself is immoral. It’s like refusing to sing the national anthem because you’re upset at the Bush administration’s torture policies or refusing to salute the flag because of the way Washington responded to Hurricane Katrina. It’s a statement of profound alienation from your country, and will be received by other Americans as such. I hope Elena Kagan gets confirmed. She’s smart, young, and liberal, and the court could use another woman. It’s all quite logical. But when it comes to military recruitment, I hope she apologizes. Nothing would send a better message to liberals on campus, and to the men and women in uniform who defend them. It would be a terrific way to start her career on the highest court in the land.

But is apologizing enough? Consider that the decision was not simply an administrative matter but also a revelation of her legal mindset.

It was not only wrong, as Beinart argued, to ban recruiters; it defied a federal statute that required the law schools to allow recruiters on campus. What does this say about her respect for congressional policy-making? And her constitutional analysis? Remember, she was not simply advocating on behalf of a client, as she has done for the administration. Here, she was advocating what she fervently believed was correct constitutional law. She and her law-school mates came up with a cockamamie argument that her hero, Justice John Paul Stevens, didn’t even buy.

An apology would be smart. But not sufficient.

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