04.19.10

Elena Kagan's Achilles' Heel

Obama’s potential Supreme Court pick banned military recruiting at Harvard Law. Peter Beinart on how that stance has damaged liberals—and why conservatives are right to bash her for it.

President Obama is about to nominate someone for the Supreme Court. On the day he or she is unveiled, conservatives will announce that they are approaching the selection with an open mind. Ten minutes later they will declare, more in sadness than anger, that the nominee has the judicial philosophy of Chairman Mao and the temperament of Dennis Rodman. Ten minutes after that, liberals will rise en masse to defend the nominee as wise, brilliant and humane, a person who restores our faith in humankind. And the kabuki theater will continue like that all summer long.

I can’t blame my fellow liberals for playing along; if the other side fires, we have to fire back. But there’s one exception. If Solicitor General Elana 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.

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.

“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.

Linda Hirshman: Sexual Orientation and the Supreme CourtI doubt that’s how Kagan or her fellow administrators meant it. But it is certainly the way it has been received. It’s no coincidence that most Ivy League schools banned ROTC in the late 1960s, at exactly the moment liberalism was committing hara-kiri. The perception that liberals are unpatriotic stems from that moment in time and from actions just like that. And while the charge is and always has been unfair, banning recruiters from campus does suggest a somewhat impoverished understanding of patriotism. Yes, dissent is patriotic, as liberals love to declaim, but assent is an important part of patriotism too. Saying you show your love for your country only through criticism is like saying you show your love for your spouse only through criticism. It isn’t likely to go over well.

And it hasn’t. Banning the military from elite campuses hasn’t only helped generations of Nixons, Atwaters and Roves beat Democrats at the polls; it has also helped create a military that stands firmly on the red side of the culture war. As Michael Neiberg shows in his 2001 book, Making Citizen-Soldiers, the Ivy League administrators of the early 20th Century believed ROTC served a fundamentally liberal purpose. It infused the military with the spirit of intellectual openness found in the academy and thus “prevent[ed] the creation” of a narrow, isolated “military caste.” Today, thanks to administrators like Kagan, however, the military recruits mostly on the campuses of the South and West, and thus, the officer corps has become overwhelmingly Republican. The best way for Ivy League liberals to remedy anti-gay discrimination in the military—and to infuse it with liberal values more generally—would be to encourage the military to recruit from among their ranks, as those administrators urged a century ago. Instead, actions like Kagan’s have helped make the Ivy League and the military separate and sometimes hostile worlds, and both have suffered as a result.

Were Kagan to be passed over for the Supreme Court because of her views on military recruitment, many liberals would likely consider it unfair. But it would make ambitious Ivy League administrators think twice because succumbing to the left-wing mindlessness that sometimes prevails on campus. And it would further one of President Obama’s signature efforts: his bid to draw America’s almost half-century long culture war to a close. If that requires conceding that conservatives are right about something, so be it. I’m sure it won’t happen again anytime soon.

Peter Beinart, senior political writer for The Daily Beast, is associate professor of journalism and political science at City University of New York and a senior fellow at the New America Foundation. His new book, The Icarus Syndrome: A History of American Hubris, will be published by HarperCollins in June. Follow him on Twitter and Facebook.