My first reaction to the news that Elena Kagan had any role in banning military recruiters from Harvard Law School was outrage: there is no excuse for this. Indeed, it is disgraceful that more than a few elite universities–in a vestigial reaction to the anti-military sentiment of the Vietnam era–still don’t have ROTC programs or place restrictions on military recruiters. And, while I support total equality for homosexuals–including gay marriage and open service in the military–Harvard Law School’s position on recruiters during the Kagan era seems rather precious. Obviously, the more enlightened and progressive young lawyers who choose military service, the greater the likelihood that discriminatory rules like “don’t ask, don’t tell” will be challenged and overruled. Unless, of course, the young lawyers are go-along, get-along careerists of the sort that Kagan seems to be.
Because it seems, on closer inspection, Kagan’s position was determined not by ideology, but by the position of the institution to which she was attached. This is distressing, but not dispositive. David Brooks’s column today nails the phenomenon. Kagan seems to have spent her entire life in planned opacity, preparing for a seat on the court. She graduated from Harvard Law School around the time that the Robert Bork hearings changed the game for would-be Justices: Bork was borked by his controversial writings. Kagan learned the lesson well: she is brilliant in the dullest possible public way. Given her history and body language, Kagan’s opacity is as easy to read as John Roberts’ was. But it is rather sad–and another indication of the insipid and corrosive nature of latter-day public life–that the hyper-partisanship of the moment makes it impossible to for us to have an honest conversation about who we’re nominating to the highest court in the land.
One Other Thing: As a general rule, unless there is something terribly amiss with a candidate, I generally support the right of a President–even one with whom I disagree–to choose whomever he wants for the Court. This is one of the perks of getting elected. It is something the public should factor in when it votes for a President: his Supreme Court picks will reflect his ideology. Thus, even though I found his nominees’ philosophy extreme, I would have confirmed George W. Bush’s right to appoint Roberts and Alito to the Court; both men were eminently qualified. The same holds for Obama. There is no question, whatever quibbles I may have, that Kagan is qualified–and much closer to my political views than Bush’s appointees–and should be confirmed without any undue fuss.