In the same piece in which she misdefends Diane Wood, Emily Bazelon has these odd observations (emphasis added) about Supreme Court candidate Elena Kagan’s vehement opposition to military recruiting on the Harvard law school campus:
When Obama nominated Elena Kagan as solicitor general in January, some Republicans opposed her based on Kagan’s support, as Harvard Law School dean, for a suit that sought to keep military recruiters off campus because of the military’s “don’t ask, don’t tell” policy. Kagan did say she backed the suit—but her law school didn’t join it. She was confirmed to her current post by a vote of 61-31. How would the Republicans who voted for her to be solicitor general explain a no vote for her now?
Kagan did much more than “say she backed the suit.” In a remarkable e-mail that she sent to the entire Harvard law school community, Kagan stated, “I abhor the military’s discriminatory recruitment policy,” and she condemned it as “a profound wrong—a moral injustice of the first order.” (Of course, what Kagan called the “military’s … policy” was required by the law that was approved in 1993 by a Democratic-controlled Congress and by President Clinton.)
Among her other actions in opposition to the Solomon Amendment—the law denying federal funding to universities discriminating against military recruiters—Kagan signed her name to a Supreme Court amicus brief in the litigation (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.
Republicans who voted for Kagan as solicitor general can easily explain that they accorded deference to President Obama’s choice of who would occupy an executive-branch position (and a subcabinet-level position at that). That vote has no logical bearing—much less any sort of estoppel effect—on how they should regard a nomination of Kagan to a lifetime position on the Supreme Court.
Kagan’s extremist rhetoric on the Solomon Amendment and on the Don’t Ask, Don’t Tell law signal that she is a serious threat to vote to invent a constitutional right to same-sex marriage. That threat alone—including the strong possibility that Kagan’s vote would be the decisive fifth vote—ought to provide ample reason for senators, both Republicans and supposed moderate Democrats, to oppose her nomination (irrespective where they stand on the discrete policy question whether marriage laws should be revised).