Commentary Magazine


Topic: Emily Bazelon

RE: Kagan’s Vulnerability

Emily Bazelon at Slate writes in defense of Elena Kagan:

She was one of 40 law professors who signed that brief. In law school faculties at the time, people were falling over themselves to oppose the Solomon Amendment. Eight other universities filed briefs, along with 56 Columbia law professors and 44 Yale law professors. At some schools, it was out of the mainstream not to sign. Obama has already said it’s time to start getting rid of “Don’t Ask, Don’t Tell.” The White House can support Kagan’s stand on this issue without taking on a new political battle.

Hmm. Is this argument meant to persuade us that Kagan is in the mainstream of judicial thought, or rather that there is something terribly wrong with the law professors who populate elite universities? All of these people got the law wrong. Really wrong — 8-0 wrong.

Moreover, you will note how easily the left conflates a policy issue — “Don’t Ask, Don’t Tell” is bad, so we’re getting rid of it — with the legal argument that proved to be a dead-bang loser at the Supreme Court. Bazelon muddles the two. The question is: did Kagan? And, more important, will she do so on the Court?

Emily Bazelon at Slate writes in defense of Elena Kagan:

She was one of 40 law professors who signed that brief. In law school faculties at the time, people were falling over themselves to oppose the Solomon Amendment. Eight other universities filed briefs, along with 56 Columbia law professors and 44 Yale law professors. At some schools, it was out of the mainstream not to sign. Obama has already said it’s time to start getting rid of “Don’t Ask, Don’t Tell.” The White House can support Kagan’s stand on this issue without taking on a new political battle.

Hmm. Is this argument meant to persuade us that Kagan is in the mainstream of judicial thought, or rather that there is something terribly wrong with the law professors who populate elite universities? All of these people got the law wrong. Really wrong — 8-0 wrong.

Moreover, you will note how easily the left conflates a policy issue — “Don’t Ask, Don’t Tell” is bad, so we’re getting rid of it — with the legal argument that proved to be a dead-bang loser at the Supreme Court. Bazelon muddles the two. The question is: did Kagan? And, more important, will she do so on the Court?

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