Solicitor General Elena Kagan’s decision not to seek Supreme Court review of the Ninth Circuit’s rogue decision in Witt v. Department of Air Force is all the more remarkable in light of the arguments that the Department of Justice made in the petition for rehearing en banc that it filed last July. In that petition, the United States argued that the Ninth Circuit panel decision “creates an inter-circuit split, … a conflict with Supreme Court precedent, and an unworkable rule that cannot be implemented without disrupting the military.”
Attorney General Holder’s letter to the Senate, which Kagan surely prepared, makes no mention of these concerns. It’s theoretically possible, of course, that Kagan actually reached a different judgment on them. But if she did, it would have been good for her to explain her reasoning in Holder’s letter, rather than hide behind a grossly exaggerated statement of the Supreme Court’s preference for review of final decisions.