Saturday, May 15, 2010


E.J. Dionne is easily impressed

I’m in Poland for a few weeks but that doesn’t mean I haven’t been following the Elena Kagan story. Thursday’s E. J. Dionne piece is an excellent foil to express some thoughts on Ms. Kagan. He highlights one of her apparently rare forays into public controversy:

“And paradoxically, one of the reasons I admire her involves a question Republicans are raising on which I disagreed with Kagan.

“In 2003, a group of law schools went to court asserting their right to deny military recruiters access to their campuses because the "don't ask, don't tell" policy discriminated against gays and lesbians. When she was dean of Harvard Law School, Kagan signed amicus briefs supporting the schools' contention; they eventually lost their case in the Supreme Court.”

Delightfully understated, Mr. Dionne. I might have instead compared the extent of their loss in the Supreme Court to the smackdown of the French in WWII but, unlike the French, these learned law professors were actually trying; their filings and arguments a supposed serious attempt at putting into practice what they teach.

So yeah, they lost (8-0) but Mr. Dionne still manages to find some good faith in their noble efforts. Recounting a chance encounter with her several years after the Court defeat, he raises that issue:

“Several things about her response show why she will make an excellent justice…Third, she made a superb argument based on a careful balancing test: Yes, in a free and democratic society, the military should be able to recruit on campuses, but university officials have an obligation to maintain policies that protect groups that are part of their student population from discrimination. At Harvard Law, Kagan struck this balance by allowing recruiters access through a student veterans group but not through its main career office.”

Of course, as most outside of Harvard Law were aware, the “don’t ask, don’t tell” policy that had them all aghast was not just some arbitrary military policy, it reflected an Executive Order that was amplifying a Federal law. And that would be a Bill Clinton Executive Order amplifying a Congressional Bill that emanated from a Congress controlled by the Democrats. One can only imagine the reaction of her fellow HLSers had the proposed recruiting ban extended to the entire federal job factory, particularly Congress, the White House and DOJ.

…or if it had courageously decided to avoid hiring those who were part of the homophobic administration that signed onto such a policy – you know, people like Elena Kagan.

Finally, Mr. Dionne passes on her pious intonations about having to “Protect groups that are part of their student population from discrimination.” Please – the entire Harvard community is a result of Harvard’s own discrimination. And once there, for example, participation in Harvard varsity sports necessarily involves some discrimination, much of it tied to physical characteristics. [Further, when the NFL has come looking for a few good players (and Harvard has had a few recently), nobody at Harvard gets too worked up when its female athletes are summarily ignored.]

And the military has long “discriminated” against a whole host of people that are probably part of the populace at HLS including: the too fat, too short, too old, too tall, most foreigners and, of course, avowed communists. But gays are the cause de jour so that’s what they focused on as a (no doubt hopefully) cheap gesture of “solidarity” with an important faction of the coalition. But, of course, as soon as the price of poker went up (i.e. a potential loss of federal funds), these “principled” academics couldn’t fold quick enough. Such is the strength of conviction of our next Supreme Court Justice.

Side Note: Mr. Dionne expounds on why he didn’t agree with the law schools’ stand:

“… But I also argued at the time that the growing separation between the military and other parts of our society, particularly its most liberal and elite precincts, was a major problem for the country."

Umm, okay – but for what it’s worth, two phrases I never heard while in the Navy:

“Wow, tough situation, we could really use a Harvard man now.”
“Before I make any decisions, I'd like a Yalie perspective on the matter.”

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