Michael Gaynor
No joke! Edward Whelan and Stuart Taylor agreed Elena Kagan's "a pig in a poke"
By Michael Gaynor
May 18, 2010

It's not hard to figure out Kagan...and she's not a closet conservative! In that amicus brief, she sought, at the expense of the Department of Defense, an activist court decision that was too extreme even for the Court's liberal judicial activists.

The debate between Harvard Law School graduates Edward Whelan, the conservative president of the Ethics & Public Policy Center, and Stuart Taylor, the centrist senior writer for National Journal, over the suitability of former Harvard Law School graduate and dean Elena Kagan to be a Justice of the United States Supreme Court highlights the problem facing people who realize that stealthy people can fool liberals, moderates and even conservatives.

Taylor is supporting Kagan, suggesting she reputation a prior public position and avoid candor during her testimony and arguing for buying "a pig in a poke" (www.theatlantic.com/politics/archive/2010/05/why-kagan-should-stonewall-the-senate/56751/).

I don't know whether Whelan would look a gift horse in the mouth, but, with respect to nominee Kagan and in reply to Taylor, Whelan was polite but firm in a May 15, 2010 Bench Memo (www.nationalreview.com/bench-memos): "Let's open the poke and look at the pig, please."

Whelan's not only right about that, but also for walloping Kagan for restricting military recruiters at Harvard in protest of "Don't Ask, Don't Tell." The United States Supreme Court ruled against discriminating against military recruiters, 8 to 0. Tellingly, Kagan's position was so extreme that no Justice accepted it. Not Justice Stevens. Not Justice Ginsberg. Not Justice Breyer. (So much for the notion that whoever Obama nominated would move the Court to the right.)

Taylor agreed that Kagan was wrong, but excused her, saying that (1) the amicus brief to the Supreme Court that Kagan signed was less absurd than the brief arguing that the Solomon Amendment was unconstitutional and (2) Kagan is responsible for moving Harvard in the rightward direction. But having two or three token conservative hired to teach at Harvard Law was smart politics by stealthy Kagan, not the first step in a plan to "fundamentally transform" Harvard Law School. Let's be real — "mainstream" Harvard Law is not "mainstream" America and neither is Kagan.


"The Supreme Court put an exclamation point on the Defense Department's fund-stripping threat in an 8-0 decision reversing the Appeals Court in March 2006. The opinion, by Chief Justice John Roberts, rejected both the plaintiffs' First Amendment challenge and the Harvard brief's strained interpretation. His tone seemed to suggest that the legions of law professors supporting the lawsuit had showed little understanding of law.

"In fairness to Kagan, the brief that she signed took a more defensible position than those attacking the Solomon Amendment as unconstitutional. She believed passionately in the justice of her cause. And refusing to sign might have offended Harvard's overwhelmingly liberal faculty and student body so much as to set back Kagan's campaign to make the law school more open to conservative perspectives and healthy debate."

Taylor seems to be saying that Kagan restricted military recruiters because she had to do it in order to be able to successful push a few conservative hires.

Astonishingly, in the same article in which Taylor charged Whelan that it was "overstated and unfair" for Whelan to have written that what Kagan had done to military recruiters "was, in practice, the substantial equivalent of kicking them off the campus altogether," Taylor wrote: "...one of Kagan's great virtues as dean was her success in taking a sledgehammer to the Harvard faculty's previously quite high quotient of left-wing mindlessness."

THAT was "overstated and unfair."

The Supreme Court ruled that military recruiters were entitled to equal access, so Taylor's quibbling misses the main point.


"We think it appropriate in the present case to consider whether institutions can comply with the Solomon Amendment by applying a general nondiscrimination policy to exclude military recruiters. "We conclude that they cannot and that the Government and FAIR correctly interpret the Solomon Amendment. The statute requires the Secretary of Defense to compare the military's 'access to campuses' and 'access to students' to 'the access to campuses and to students that is provided to any other employer.' (Emphasis added.) The statute does not call for an inquiry into why or how the 'other employer' secured its access. Under amici's reading, a military recruiter has the same 'access' to campuses and students as, say, a law firm when the law firm is permitted on campus to interview students and the military is not. We do not think that the military recruiter has received equal 'access' in this situation — regardless of whether the disparate treatment is attributable to the military's failure to comply with the school's nondiscrimination policy.

"The Solomon Amendment does not focus on the content of a school's recruiting policy, as the amici would have it. Instead, it looks to the result achieved by the policy and compares the 'access ... provided' military recruiters to that provided other recruiters. Applying the same policy to all recruiters is therefore insufficient to comply with the statute if it results in a greater level of access for other recruiters than for the military. Law schools must ensure that their recruiting policy operates in such a way that military recruiters are given access to students at least equal to that 'provided to any other employer.' (Emphasis added.)

"Not only does the text support this view, but this interpretation is necessary to give effect to the Solomon Amendment's recent revision. Under the prior version, the statute required 'entry' without specifying how military recruiters should be treated once on campus. 10 U. S. C. §983(b). The District Court thought that the DOD policy, which required equal access to students once recruiters were on campus, was unwarranted based on the text of the statute. 291 F. Supp. 2d, at 321. Congress responded directly to this decision by codifying the DOD policy. Under amici's interpretation, this legislative change had no effect — law schools could still restrict military access, so long as they do so under a generally applicable nondiscrimination policy. Worse yet, the legislative change made it easier for schools to keep military recruiters out altogether: under the prior version, simple access could not be denied, but under the amended version, access could be denied altogether, so long as a nonmilitary recruiter would also be denied access. That is rather clearly not what Congress had in mind in codifying the DOD policy. We refuse to interpret the Solomon Amendment in a way that negates its recent revision, and indeed would render it a largely meaningless exercise."

It's not hard to figure out Kagan...and she's not a closet conservative! In that amicus brief, she sought, at the expense of the Department of Defense, an activist court decision that was too extreme even for the Court's liberal judicial activists.

Kagan came from the West Side of Manhattan and a legislative intern for the late Congressman Ted Weiss in 1978. (Weiss, who was succeeded in Congress by ACORN champion Jerrold Nadler, was a huge supporter of "gay rights" and a featured speaker at the 1979 March on Washington for Lesbian and Gay Rights.)

The March's Five Demands were for (1) passage of a comprehensive lesbian/gay rights bill in Congress, (2) issuance of a presidential executive order banning discrimination based on sexual orientation in the federal government, the military, and federally contracted private employment; (3) repeal of all all anti-lesbian/gay laws; (4) end to discrimination in lesbian-mother and gay-father custody cases; and (5) protection of lesbian and gay youth from any laws used to discriminate, oppress, and/or harass them in their homes, schools, jobs, and social environments.

Wikipedia includes this except from the closing paragraph of the March's welcome program: "Today in the capital of America, we are all here, the almost liberated and the slightly repressed; the butch, the femme and everything in-between; the androgynous; the monogamous and the promiscuous; the masturbators and the fellators and the tribadists; men in dresses and women in neckties; those who bite and those who cuddle; celebates[sic] and pederasts; diesel dykes and nelly queens; amazons and size queens, Yellow, Black, Brown, White, and Red; the shorthaired and the long, the fat and the thin; the nude and the prude; the beauties and the beasts; the studs and the duds; the communes, the couples, and the singles; pubescents and the octogenarians. Yes, we are all here! We are everywhere! Welcome to the March on Washington for Lesbian and Gay Rights!"

Jeffrey Toobin (more about him later) attests to Kagan being very careful. But on "gay rights" she was unambiguous and unconnected to reality: she equated the "Don't Ask, Don't Tell" policy with the Holocaust. In a 2003 e-mail to the Harvard Law School community, Kagan raved that the government's exclusion of open gays in the military was "a profound wrong" and "a moral injustice of the first order."

Whelan commented: "At a time of war, in the face of the grand civilizational challenge that radical Islam poses, Kagan treated military recruiters worse than she treated the high-powered law firms that were donating their expensive legal services to anti-American terrorists."

Taylor responded with a four-letter word ("Ouch"). But Taylor seems to view academia as a place where placating the Left is a forgivable mistake unless the Left is railroading innocent lacrosse players on bogus rape, sexual offense and kidnapping charges. Readers of Until Proven Innocent: Political Correctness and The Shameful Injustices of the Duke Lacrosse Case read (p. 394) that "[t]he one thing that can most quickly ruin a careerist university bureaucrat is to run afoul of the left wing of the faculty."

To the question, "Aren't you admitting that Elena Kagan's world is a legal academic complex oozing politically correct bias, moral vanity, detachment from the real world, and a cynical view of the law as meaning whatever you can manipulate it to mean?", Taylor candidly responded: "Yes, to some extent. But while she was unwise to discriminate against military recruiters, Kagan is not part of the p.c. problem. She is part of the commonsense solution."

Like Obama, Kagan is careful. They are part of the p.c. problem, not the commonsense solution.

Jeffrey Toobin, not only a Harvard Law School classmate, fellow study group member and fellow Law Review editor with Kagan, but also the self-identified "unofficial campaign manager" for Kagan's unsuccessful campaign to be president of the Harvard Law Review, posted a piece on Kagan's nomination even before it was official (www.newyorker.com/online/blogs/newsdesk/2010/05/elena-kagans-nomination.html).

After sharing the news that Kagan danced at his wedding (but not mentioning with whom), her dad was the lawyer who represented his and his wife when they bought there first apartment, he visited her two years ago when she sat shiva after her mother's death (that means she's Jewish) and he immediately was happy for his "old friend," Toobin answered the "what's she like?" question as follows: "Smart, self-confident, funny. Even in law school, which was full of highly intelligent people (just ask them), Kagan stood out from the start as one with a formidable mind. She's good with people. At the time, the law school was a politically charged and divided place. She navigated the factions with ease, and won the respect of everyone. Almost three decades later, those qualities were much in evidence during her famously successful tenure as dean of Harvard Law School."

President Obama, the friend who first appointed her his Solicitor General and just nominated her for a Supreme Court seat, is a former president of the Harvard Law Review who navigated the factions there even better than Kagan to win that presidency. (Kagan came in second when she ran).

"Old friend" Toobin characterized Kagan's Harvard deanship as "famously successful," but professed ignorance of her views beyond what her voter registration shows: Democrat.

Toobin: "Clearly, she's a Democrat. She was a highly regarded member of the White House staff during the Clinton years, but her own views were and are something of a mystery. She has written relatively little, and nothing of great consequence."

If Toobin really is as ignorant as he professes, then Kagan is stealthier than communist spy Alger Hiss was.

Interestingly, after sharing that he had just red his boss's new biography of Obama, Toobin stated: "...I was struck by certain similarities between the President and his nominee. They are both intelligent, of course, but they also share an ability to navigate among factions without offending anyone. Remnick's Obama is very... careful. He takes no outlandish stands or unnecessary risks. He is an exquisite curator of his own career. All of this is true of Kagan as well."

Obama is famous (or notorious) for voting present as an Illinois state senator and, with the cooperation of the liberal media establishment, seeming unthreatening, but his opposition to a bill against infanticide was not "outlandish" and didn't "offend[] anyone"?

Toobin concluded: "...on the Court, Kagan will have to do something she's not done before. Show her hand. Develop a clear ideology. Make tough votes. I have little doubt she's up to the job, but am less clear on how she'll do it."

A 50-year old nominee who has yet to "[d]evelop a clear ideology" is not the kind of person who belongs on the Supreme Court.

To be sure, Kagan's academic credentials are stellar. Like now Justice Sotomayor and Taylor, Princeton College and Harvard Law.

Yes, Kagan fits the de facto religious qualification: be Catholic or Jewish!

Protestants still constitute a majority of Americans, but, with the retirement of Stevens and his replacement with Kagan, for the first time in American history there would not be a Protestant on the Supreme Court.

Is that what Obama meant by "fundamental change"? When it comes SCOTUS nominations, he's following the Clinton example of appointing liberal activists. Clinton appointed former ACLU counsel Ruth Bader Ginsberg and the late Ted Kennedy's favorite Harvard Law School professor, Stephen Breyer. Obama, a former assistant to Harvard Law School professor Larry Tribe, nominated former Tribe assistant Kagan. (Alas, Sotomayor was not a Tribe assistant, but she's Hispanic and Obama's going to need the Hispanic vote in 2012, so she got Obama's first SCOTUS nomination.)

"Liberals" are portraying Kagan as a necessary "counterweight" to Chief Justice John Roberts. (They mean intellectually.) That's an implicit admission that Sotomayor has not fulfilled that role.

Finally, Taylor, lamenting "bleak alternatives," insisted that stonewalling has become the best course.

Taylor: "Because the Constitution's vision of a life-tenured judiciary independent of politics rested on the premise that by and large the justices would not be making national policy. And that premise has been washed away by the vast powers that justices of all ideological stripes have arrogated to themselves."

Judicial activism is wrong, but it's predominantly a habit of "liberals" and the solution is to uphold the Constitution and not appoint activists, not to rubberstamp stealth nominees.

© Michael Gaynor


The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
(See RenewAmerica's publishing standards.)

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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)


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