An article in today’s New York Times—“Potential Court Pick Faced Dilemma at Harvard”—tries to paint former Harvard law school dean Elena Kagan as a “pragmatist” for railing vehemently against the Don’t Ask, Don’t Tell law while being careful not to jeopardize the flow of hundreds of millions of dollars of federal funds to Harvard. I think that it’s far clearer that she was just engaging in cheap and contemptible moral posturing.

If Kagan genuinely believed that the Don’t Ask, Don’t Tell law was “a profound wrong—a moral injustice of the first order,” why would she make herself complicit in implementing the grave evil? Yes, of course, it’s true, as the article points out, that “barring the recruiters would [have] come with a price.” But, as George Bernard Shaw would have said to Kagan for selling out her supposedly deeply held principles, “We’ve already established what you are, ma’am. Now we’re just haggling over the price.” (My point isn’t that Kagan deserves the Bernard Shaw slam—she doesn’t—but rather that she evidently doesn’t believe her own rhetoric.) [See update below.]

It’s also worth emphasizing that what Kagan mischaracterized as the “military’s policy” is in fact the Clinton administration’s implementation of a provision of the defense-appropriations law that a Democratic-controlled Congress enacted in 1993 (with Clinton’s signature). Instead of taking potshots at military recruiters who were merely complying with the law, did Kagan ever exclude from campus any of the politicians responsible for the law? Of course not. Indeed, whatever moral opposition Kagan had to the law when it was adopted didn’t deter her from seeking and obtaining employment in the Clinton White House. Nor will it keep her from palling around with the many senators who voted for it, such as Vice President Biden.*

Kagan engaged in her cheap moral posturing in the aftermath of 9/11, at a time when American soldiers were at war defending our freedom. She elevated her own ideology above what Congress, acting on the advice of military leaders, had determined best served the interests of national security. As Peter Beinart, the liberal former editor of the New Republic, has written in condemning Kagan’s exclusion of military recruiters from campus:

You can disagree with the policies of the American military; you can even hate them, but you can’t alienate yourself from the institution without in a certain sense alienating yourself from the country. Barring the military from campus is a bit like barring the president or even the flag. It’s more than a statement of criticism; it’s a statement of national estrangement.

*Still-sitting Democratic senators who voted for the law include Akaka, Baucus, Bingaman, Byrd, Conrad, Dodd, Feinstein, Harkin, Inouye, Kerry, Kohl, Leahy, Levin, Lieberman, Mikulski, Murray, Reid, and Rockefeller. (Baucus, Byrd, Conrad, Kohl, Reid, and Rockefeller also voted against an amendment to leave policy on the matter in the discretion of the president.)

5/9 Update: I see that some lefty bloggers (such as this one) have taken, or feigned, offense at my use of the Bernard Shaw quip. Set aside the fact that the broader point of my post is that Kagan surely doesn’t believe her own extremist rhetoric (not that she believes it but is willing to sell her principles away). The Bernard Shaw quip is widely used in political discourse (here’s just one example) to criticize someone for selling out; it obviously doesn’t carry (and in my case certainly wasn’t intended to carry) the particular stigma that a narrowly literal understanding would convey.