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ThoughtsOnline

Tuesday, May 11, 2010


Elena Kagan, Obama's nominee to the Supreme Court, banned military recruiters from Harvard Law School because of the military's - don't ask, don't tell - discrimination against gays... a policy that was shot down 8-0 by the Supreme Court.

As I've written before, I think being on the losing end of a unanimous decision is a strong signal that one is way outside the mainstream. What better defines someone as off the wall than the fact that not a single justice could bring him or herself to support Kagan's position?

Some commenters suggest that her position was motivated by an anti-military bias. If so, what might account for it?

Well, she may also be gay (no one is asking, no one is telling).

Question: are the two connected? Did her (possible) sexual orientation factor in any way into her decision to support a policy that not a single Justice could support? Was her support of ban on recruiters driven by her anger at the military's declaration that 'people like her' were not welcome in the military? Heck, I know I'd be pissed if some group declared someone like me was defective and thus not worthy of membership.

Note, I'm not making a judgment on her orientation, whatever it is... but I do wonder whether she can rule based on the law and not on whether she personally is bothered by the actions of one or another of the parties appearing before the Supreme Court.

I don't care if Kagan is a Justice who is gay, but I don't want a 'gay' Justice any more than I want a 'black justice' or a 'female justice' or a 'Jewish justice' or any of the other fill-in-the-blank justices. I don't want Justices deciding cases based on whether a particular outcome would be good for their fellow blacks or fellow women or fellow Jews or people who share their sexual orientation.

To use Roberts' 'Justice as umpire' metaphor, I don't want my umpires making calls based on whether they like the person at bat, or whether they've had words with the catcher. I want my umpires to put aside their personal feelings towards the parties involved and the issues and rule based on what the rule book says.

I'd oppose her nomination anyway, and mostly because I figure anyone who Obama would nominate would rule to validate his agenda... but I'd feel better if Kagan could offer up a legitimate rationale for why she took the position she did... but given that she was on the losing end of an 8-0 decision, I'm not going to hold my breath waiting for her to do so.

I assume that not every law school dean who supported the ban on recruiters was gay... but as they all took positions that were outside the mainstream, I'm left concluding that they all did so because of their personal feelings towards the military. Some might have done so because of a general anti-military bias, others in solidarity with the gays excluded from service. Either way, they were wrong and none of them belong on the Court.