As I’ve explained, Elena Kagan’s actions as Solicitor General to undermine the Don’t Ask, Don’t Tell law and the Defense of Marriage Act provide ample evidence that she will let her ideological biases trump her duty—and that her recent testimony to the contrary, like her similar testimony at her SG hearing, shouldn’t be credited. 

Recent disclosures and developments concerning a challenge to the Don’t Ask, Don’t Tell law in Log Cabin Republicans v. United States in the Central District of California add to the case against Kagan.

First, Kagan disclosed in her responses to post-hearing written questions that she personally participated in a meeting about how the United States should respond to pre-trial discovery requests in the Log Cabin Republicans case.  (See response to Sessions Q29.e.) As Kagan acknowledges, the Office of the Solicitor General does not normally participate in district-court litigation.  So it is extraordinary that, in addition to her role in forming the government’s position in district-court briefs that sabotaged the Defense of Marriage Act in the Smelt (see first link above) and Gill cases, Kagan saw fit to involve herself in a discovery matter in Log Cabin Republicans—by her account, the only such discovery matter she can recall being involved in.  That’s a stark sign of the strong interest that Kagan took in the case.  (I’d sure like to get an account of what issue precipitated Kagan’s involvement and what role she played.)

Second, because Kagan chose, for stated reasons that are wholly unsatisfactory (see second link above), not to seek Supreme Court review of the Ninth Circuit’s rogue decision in Witt that subjected Don’t Ask, Don’t Tell to heightened scrutiny, she invited the burdensome litigation that the military is now being subjected to.  Last week, the district judge in Log Cabin Republicans, relying directly on Witt, denied the government’s motion for summary judgment in its favor on Don’t Ask, Don’t Tell.  And yesterday trial in the case, under the heightened standard of scrutiny, began.  This National Law Journal article states that the government attorney defending the case “continued to assert that the case shouldn’t even be in trial,” but it would seem that the attorney’s beef ought to be with Kagan, not the district judge.