As dean of Harvard law school, Elena Kagan has received a healthy dollop of goodwill from conservatives, partly for her early hiring of three conservative faculty members, partly for the genuine decency and grace with which she has treated conservatives on campus generally (including, as I discussed in this post, in the law school’s celebration of Justice Scalia’s 20th anniversary on the Supreme Court). She has earned that goodwill, and she ought to benefit from it in her confirmation hearing to be the next Solicitor General. Even beyond that, of course, and notwithstanding the sorry performance of many on the Left over the past eight years, every nominee deserves to be treated fairly, and fair treatment entails, at a minimum, a good-faith effort to depict accurately any alleged deficiencies in the nominee’s record.
But the spirit of goodwill and fair treatment shouldn’t lead Republicans to roll over and play dead, especially because Kagan is a serious contender for a Supreme Court appointment and her upcoming confirmation hearing provides an excellent opportunity to explore her legal views.
Among the many matters that deserve exploration is Kagan’s opposition to the Solomon Amendment, the federal law that denies federal funding to an institution of higher education that “has a policy or practice … that either prohibits, or in effect prevents”, the military “from gaining access to campuses, or access to students … on campuses, for purposes of military recruiting in a manner that is at least equal in quality and scope to the access to campuses and to students that is provided to any other employer.” Before enactment of the Solomon Amendment, many law schools, in protest against federal law restricting homosexuals in the military, had barred or disfavored military recruiting on their campuses. For the same reason, many law schools worked to attack or evade the Solomon Amendment.
Among her many actions in opposition to the Solomon Amendment, Kagan was one of some 40 or so law professors who signed their names to a Supreme Court amicus brief in Rumsfeld v. FAIR that offered a highly implausible reading of the Solomon Amendment that would have rendered it, as Chief Justice Roberts’s opinion put it, “largely meaningless.” The Chief Justice’s opinion rejecting Kagan’s reading and the other challenges to the Solomon Amendment was unanimous. As Peter Berkowitz wrote of the various briefs by legal academics (including the one Kagan signed):
This dazzling array of eminent law professors proved incapable–even after hiring the best Democratic party legal talent money could buy–of advancing a single legal argument persuasive enough to pick off even a single dissent from the four more progressive justices on the court–Souter, Breyer, Ginsburg, and Stevens–or to provoke even a single concurrence expressing a single demurral on a single point of law from Chief Justice Roberts’s opinion.
What, if anything, does Kagan’s amicus brief say about her ability to separate her reading of the law from her own political positions or from the politically correct stances of the legal academy? About her willingness as SG to defend federal laws that she disfavors? How faithfully has she ensured Harvard law school’s compliance with the Solomon Amendment since the Court’s ruling? I do not mean to present these as rhetorical questions that have implied negative answers. Kagan may well have entirely satisfactory responses. But these are just some of the many questions that Republican senators should be ready to pose.