Bench Memos

Liberals Versus Elena Kagan

In my rush to get out of town last week, I failed to highlight that Peter Beinart, former editor of the New Republic, has joined the ranks of those raising alarms about the possible nomination of Elena Kagan to the Supreme Court.  But his take (emphasis added) is strikingly different from the far Left’s:

If Solicitor General Elana [sic] Kagan gets the nod, conservatives will beat the hell out of her for opposing military recruitment on campus when she was dean of Harvard Law School. And liberals should concede the point; the conservatives will be right.

“I abhor the military’s discriminatory recruitment policy,” wrote Kagan in 2003. It is “a profound wrong—a moral injustice of the first order.” So far, so good. Not allowing openly gay and lesbian Americans into the military is a grave moral injustice and it is a disgrace that so many Republicans defend the policy to this day. But the response that Kagan favored banning military recruiters from campus—was stupid and counterproductive. I think it showed bad judgment.

The United States military is not Procter and Gamble. It is not just another employer. It is the institution whose members risk their lives to protect the country. 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.

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