Globe columnist: Military-recruiter issue just a cover to challenge Kagan's sexual orientation

I know that certain areas of the blogosphere believe that the most fascinating aspect of Elena Kagan’s nomination to the Supreme Court involves her dance card.  The rest of the pundits have focused on Kagan’s thin record and lack of intellectual production as dean of Harvard Law School — and her abysmal defense of the illegal actions by Harvard to keep military recruiters off the campus.  Joan Vennocchi insists in yesterday’s Boston Globe that debating Kagan’s record on the military is nothing more than just another attempt to “out” her as a lesbian (via The Week):

The political forces seeking to derail Kagan are doing so by making sexual preference part of the conversation.

At Harvard, Kagan criticized the military’s ban against gays and lesbians serving openly as “wrong — both unwise and unjust.’’

That’s the true reason for the intense focus on Kagan’s decision as dean of Harvard Law School to stop on-campus military recruitment because of the “don’t ask, don’t tell’’ policy. It’s a way to hide the smirking behind the charge that she is “anti-military.’’

And of course, Vennocchi goes right from there directly to Godwin’s Law:

But even if the policy is changed, openly declaring one’s sexuality still remains a choice. No one in the military or on the Supreme Court should be forced to walk around with the label, gay or straight.

It’s a slippery slope if members of the Senate Judiciary Committee start asking Kagan whether she prefers men or women. What’s next? Forcing every job applicant to open their bedroom door? Having gays wear pink badges, as required by the Nazis?

Say what?  Asking Kagan to defend her support of a legal argument that lost 8-0 at the same bench to which she now aspires equates to Naziism?  That may beat any of the hyperbolic hyperventilation we’ve yet heard on the Arizona immigration law.

Elena Kagan has never served as a judge.  She has only been Dean of Harvard Law for a few years — and in that role has offered very little in the way of intellectual work, especially given the normal expectations of someone in that position.  Her efforts to push a legal argument so far outside the mainstream that all of the Supreme Court’s conservatives and liberals rejected it is a very germane point, as is her disregard for the Solomon Amendment law during that same period.  For that matter, her memos during the Clinton administration also need to be publicly reviewed.  For candidates with no direct experience for a lifetime position on the nation’s highest court, the focus should be on broadening the scope of inquiry, not restricting it to pleasantries about the weather.

Very few people give a damn about Kagan’s sexual orientation outside of those whose entire focus normally falls on that topic.  Talking about Kagan’s treatment of the military on campus and her specious legal arguments to rationalize it are perfectly within the scope of both competence and adherence to law, Vennocchi’s absurd and asinine accusations notwithstanding.  Maybe the Globe should consider giving that column space to someone who doesn’t freak out at the mere thought of a political appointment being asked questions about her record.

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David Strom 6:01 PM on March 29, 2023