Commentary Magazine


Topic: Martha Minow

RE: RE: Kagan Nominated

During her career, Elena Kagan, like Justice Roberts before her, seems to have kept her eye always on the possibility of getting to the Supreme Court. The one item in her résumé not consistent with that was her opposition to allowing military recruiters access to interview students at the Harvard Law School. She even signed an amicus brief backing a Third Circuit opinion that was overturned 8-0 by the Supreme Court.

As Bill Kristol points out, tracking Ed Whelan’s fifth point, Elena Kagan appears anti-military here, not just pro-gay. She has consistently blamed the military for implementing what was, in fact, an act of Congress (and a Democratic one at that) that had been signed into law by a Democratic president. Does she think the military has a moral obligation to mutiny in this case?

Why would she do this? I have no inside track on her thinking, but I wonder if she realized that failing to take this position could have cost her her job at Harvard. As Lawrence Summers found out, and Kagan’s successor as dean of the Harvard Law School, Martha Minow, is currently demonstrating, the Harvard faculty does not take kindly even to questioning liberal orthodoxy, let alone espousing apostasy. Perhaps she figured that getting canned as dean would look worse on her résumé than appearing anti-military, which was probably her inclination anyway.

During her career, Elena Kagan, like Justice Roberts before her, seems to have kept her eye always on the possibility of getting to the Supreme Court. The one item in her résumé not consistent with that was her opposition to allowing military recruiters access to interview students at the Harvard Law School. She even signed an amicus brief backing a Third Circuit opinion that was overturned 8-0 by the Supreme Court.

As Bill Kristol points out, tracking Ed Whelan’s fifth point, Elena Kagan appears anti-military here, not just pro-gay. She has consistently blamed the military for implementing what was, in fact, an act of Congress (and a Democratic one at that) that had been signed into law by a Democratic president. Does she think the military has a moral obligation to mutiny in this case?

Why would she do this? I have no inside track on her thinking, but I wonder if she realized that failing to take this position could have cost her her job at Harvard. As Lawrence Summers found out, and Kagan’s successor as dean of the Harvard Law School, Martha Minow, is currently demonstrating, the Harvard faculty does not take kindly even to questioning liberal orthodoxy, let alone espousing apostasy. Perhaps she figured that getting canned as dean would look worse on her résumé than appearing anti-military, which was probably her inclination anyway.

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