For me, the key obstacle to Elena Kagan's confirmation is pt. 5 in Ed Whelan's NRO post, which is also the question raised by Peter Berkowitz in these pages several years ago and by Peter Beinart just recently: Her hostility to the U.S. military.
Hostility? Isn't that harsh? Kagan has professed at times her admiration for those who serve in the military, even as she tried to bar military recruiters from Harvard Law School. But how does one square her professed admiration with her actions--embracing an attempt to overturn the Solomon Amendment that was rejected 8-0 by the Supreme Court--and her words?
Consider these words in particular from her letters to "All Members of the Harvard Law School Community": On Oct. 6, 2003, Kagan explained that she abhorred "the military's discriminatory recruitment policy....The military's policy deprives many men and women of courage and character from having the opportunity to serve their country in the greatest way possible. This is a profound wrong -- a moral injustice of the first order." On Sep. 28, 2004: "...the military's recruitment policy is both unjust and unwise. The military's policy deprives..." etc. And on March 7, 2006: "I hope that many members of the Harvard Law School community will accept the Court's invitation to express their views clearly and forcefully regarding the military's discriminatory employment policy. As I have said before, I believe that policy is profoundly wrong -- both unwise and unjust...," etc.
Notice, time and again: "the military's discriminatory recruitment policy," "the military's policy," "the military's recruitment policy," "the military's discriminatory employment policy."
But it is not the military's policy. It is the policy of the U.S. Government, based on legislation passed in 1993 by (a Democratic) Congress, signed into law and implemented by the Clinton administration, legislation and implementation that are currently continued by a Democratic administration and a Democratic Congress. It is intellectually wrong and morally cowardly to call this the "military's policy." Wrong for obvious reasons. Cowardly because it allowed Kagan to go ahead and serve in the Clinton administration that enforced this policy she so detests, and to welcome to Harvard as Dean former members of that administration, as well as Senators and Congressmen who actually voted for the law--which is more than the military recruiters whom Kagan sought to ban did.
As Ed Whelan asks, "Instead of taking potshots at military recruiters who were merely complying with the law, did Kagan ever exclude from campus any of the politicians responsible for the law?"
Of course not. Indeed, whatever moral opposition Kagan had to the law when it was adopted didn't deter her from seeking and obtaining employment in the Clinton White House. Nor will it keep her from palling around with the many senators who voted for it, such as Vice President Biden.
Kagan engaged in her cheap moral posturing in the aftermath of 9/11, at a time when American soldiers were at war defending our freedom.
Many important people are complicit in what Kagan regards as the "moral injustice of the first order" of Don't Ask, Don't Tell. The only ones Kagan sought to make pay a price were those serving the ranks of the military.
So Kagan needs to be asked: Why doesn't this reflect hostility to the military?