by J. F. Kelly, Jr. | Coronado

President Barack Obama has nominated Solicitor General Elena Kagan to fill the U. S. Supreme Court seat held for 34 years by liberal Justice John Paul Stevens who is retiring. This selection has delighted neither liberals nor conservatives. The former would, of course, prefer a nominee more liberal even than Stevens, if that’s possible. Conservatives, naturally, will oppose almost anyone nominated by Mr. Obama.

Kagan, however, would appear on the surface to be a reasonable compromise. By all reports, she is considered a moderate but it is difficult to tell from her record. She has never served as a judge, so there are no judicial decisions or precedents on which to judge her. And as Solicitor General she is expected to support the positions of the administration she serves, perhaps whether she agrees with them or not,

The very liberal New York Times, in an editorial entitled “Searching for Elena Kagan”, observed that she has spent decades shielding her philosophy from public view and that her lack of a clear record makes it difficult to know whether or not she would serve as a counterweight to what it terms the court’s “increasingly aggressive conservative wing”.

Mr. Obama undoubtedly felt that Ms. Kagan’s lack of a history as a judge would deny those who would oppose her confirmation a record of decisions to assail. He hopes for a prompt and non-contentious confirmation process. Not likely. Even the New York Times urges senators to get Kagan to “open up a little” regarding her substantive views.

Columnist David Brooks, writing in the same newspaper, commented that “one scans her public speeches looking for a strong opinion, and one comes up empty”. On one subject, however, Elena Kaga’s opinion did come across quite strongly. That was her decision at Harvard Law School to reinstate a policy banning the military services from using the law school’s main career office for recruiting. She took this position she said because of the military’s policy banning gay men and lesbians from serving openly in the military.

The policy that the military was and is following, known as “don’t ask; don’t tell”, is, however, the law of the land. It was the compromise policy worked out between the Defense Department and the Clinton Administration after then- President Bill Clinton’s unsuccessful attempt to end, by executive order, the ban on homosexuals serving openly in the armed forces. “Don’t ask; don’t tell” was subsequently enacted into law by Congress.

It was a compromise that pleased few but it did become law. So what basis did Ms. Kagan have for discriminating against the military services by denying access to military recruiters when other recruiters were welcomed?  Is this an example of the “substantive thinking” we might expect from a Justice Kagan if she is confirmed to the highest court in the land?

Is it possible that Ms. Kagan’s support of this discriminatory policy banning military recruiters is just one more manifestation of the strident anti-military culture that existed at Harvard and other elite ivoried institutions of liberal education? Might there be other manifestations of that bias if she is confirmed?

Banning military recruiters and ROTC units from elite university campuses may be considered quite fashionable in some circles but such “feel good” policies ought to come with a price. Discriminate against the military and lose government funding including federal research grants seems like a fair policy to me. And for those public figures, like nominees to the Supreme Court, who have instituted policies that discriminate against the military, there should be a consequence as well. CRO

copyright 2010 J.F. Kelly, Jr

J.F. Kelly, Jr. is a retired Navy Captain and bank executive who writes on current events and military subjects. He is a resident of Coronado, California.

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