The Problem With Elena Kagan

Obama's high-court pick is young, smart, and liberal, and should be confirmed, argues Peter Beinart. But she should apologize for banning military recruitment at Harvard—a major blunder.

So it’s Elena Kagan. Is anyone surprised? I sometimes think Barack Obama has developed a computer program for deciding who to nominate for top jobs. His choices are always so damn rational. When he needed a running mate, he began with his greatest political vulnerability (his weakness among aging lunch-pail Democrats) multiplied it by his greatest governing vulnerability (his lack of experience in Washington) and voila: Joe Biden. It didn’t matter that, given Obama’s legendary discipline and Biden’s legendary indiscipline, the two men weren’t natural pals. In Obama-land, there’s no time for sentiment. When the prez chose Hillary Clinton as his secretary of State, he instantly screwed dozens, if not hundreds, of foreign-policy wonks who had alienated the Clintons by signing on to his campaign. The message was clear: In this administration, appointments aren’t about loyalty; they’re about business.

The question was, and is, whether banning the military from campus constitutes the right response. I think it was stupid then and stupid now.

Obama announced today that he's picked Elena Kagan for the Supreme Court. First, she’s young—almost a decade younger than Diane Wood and Merrick Garland, the two other most frequently mentioned potential nominees. Second, she has good relationships with academic conservatives from her days as dean of Harvard Law School. Third, she has said little publicly on many of the most controversial issues before the court. You can almost hear the gears whir: Kagan offers the most liberalism for the longest time at the lowest political cost.

The Kagan rollout has been methodical too. For weeks now, it has been clear that her greatest vulnerability is her opposition, as Harvard dean, to amending the school’s anti-discrimination policy so the military could recruit on campus. Thus, last Friday, The New York Times just happened to run a long story explaining that Kagan’s position on the issue was actually quite moderate, and that she had warm personal relationships with Harvard Law students who served in the military. The Times even featured a photograph of Kagan pinning captain bars on the uniform of one Kyle Scherer, a law school graduate now serving in Afghanistan. Remarkable that the Times managed to track down that photo. Almost makes you wonder if they had help.

Read Our Full Coverage of Elena Kagan

The day after the story appeared, I received an email from a prominent Democratic lawyer offering me the same kind of assistance that the Obama administration seems to have provided the Times. In a previous Beast column, I had criticized Kagan’s action as dean, arguing that barring recruiters from Harvard Law School because the military discriminates against gays was as counterproductive as banning ROTC from Harvard during Vietnam. That comparison, my correspondent insisted, “rests on a fundamental category mistake…what happened at Harvard Law School [during Kagan’s tenure] was not anything like the anti-military policies of the ‘70s that were directed at the military because they were the military.”

But the decision by Harvard and other elite schools to ban ROTC in the 1970s was not “directed at the military because they were the military.” It was directed at the military because it was fighting an unjust war in Vietnam. Then, the military was pursuing an immoral war in Southeast Asia; today, the military is pursuing an immoral policy against lesbians and gay men. The question was, and is, whether banning the military from campus constitutes the right response.

I think it was stupid then and stupid now. While denouncing anti-gay bigotry may provide some moral satisfaction, in practice, Kagan’s position made things worse. As during Vietnam, there was zero chance that banning the military from campus would change its anti-gay policies. To the contrary, Harvard’s best strategy for combating homophobia would have been to enlist as many of its students in the military as possible, thus seeding the armed services with officers who hold liberal values. Instead, decades of exclusion from most Ivy League campuses has led the military to focus its recruiting efforts on the south and west, and thus bred the kind of right-leaning officer corps least likely to support allowing gays to serve openly.

My correspondent went on to argue that I was wrong to call Harvard’s ban on recruitment “anti-military” since the school’s anti-discrimination policy applied to all employers. The military just happened to be one of those that discriminated. But seeing the military as just another employer strikes me as bizarre. The military, like Congress, the courts and the presidency, is one of our defining public institutions. To question its moral legitimacy is not like questioning the moral legitimacy of General Electric. And that’s exactly what banning the military from campus does. It suggests that Harvard thinks not just that the military’s anti-gay policy is immoral (which it emphatically is) but that the institution itself is immoral. It’s like refusing to sing the national anthem because you’re upset at the Bush administration’s torture policies or refusing to salute the flag because of the way Washington responded to Hurricane Katrina. It’s a statement of profound alienation from your country, and will be received by other Americans as such. I hope Elena Kagan gets confirmed. She’s smart, young and liberal, and the court could use another woman. It’s all quite logical. But when it comes to military recruitment, I hope she apologizes. Nothing would send a better message to liberals on campus, and to the men and women in uniform who defend them. It would be terrific way to start her career on the highest court in the land.

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.