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The New York Times Likes Elena Kagan for the Supremes

The NY Times likes Elena Kagan and promotes her qualifications to replace the retiring Justice Stevens on the Supreme Court. It gives front page space to Katherine Seelye, who realizes a fine performance of pro-administration stenography. Her argument is that Ms. Kagan, while dean of Harvard Law School, did a stellar job reversing a decades old ban on allowing military recruiters on campus.

Military recruiters had been banned since 1979 because of the US military’s overt discrimination against gays and lesbians. The school permitted informal workarounds that allowed interested students to meet with recruiters privately on campus. In 2002, with plans for war well under way, the Bush administration felt that was insufficient to meet its needs. As usual, it played hardball, threatening to withhold all federal funds to an entire university if any part of it refused recruiters official access. For Harvard University, that put in jeopardy about 15% of its annual operating budget. Big stakes, as is every Supreme Court decision.

As the voice of the country’s most esteemed school of law, how did Ms. Kagan respond when faced with a conflict between her principles and the government’s demands? She attempted to support all sides, giving emotional support to students who chose a military career, to gay & lesbian students, to those opposed to the military or Mr. Bush’s wars generally. Formally, she acquiesced with her university president, the omnipresent Larry Summers, who wanted no opposition to the Bush administration’s demands. A textbook example of bureaucratic diplomacy, much as Obama does daily.

Finding safety in numbers, Ms. Kagan did join dozens of others in a nearly seven year-long litigation to declare the Bush administration’s demands a violation of free speech and association rights. That group won an appeal’s court decision in its favor. A few years later, the Supreme Court unanimously overturned that decision. As Ms. Seelye notes, Chief Justice Roberts wrote:

“A military recruiter’s mere presence on campus does not violate a law school’s right to associate, regardless of how repugnant the law school considers the recruiter’s message,”

A Pyrrhic loss, as Harvard and its law school had already complied with the government’s demands. Ms. Seelye continues (emphasis mine):

Far from being rebellious, her colleagues here [at Harvard] say, Ms. Kagan bowed to the will of Lawrence H. Summers, then the president of the university and now director of Mr. Obama’s National Economic Council. Mr. Summers had appointed her dean and did not want Harvard to fight the federal government. Ms. Kagan did not join in when more than half the law school faculty publicly urged him to sue the government over the law that tied federal funding to military recruitment.

Change the names and that sounds like Mr. Obama during his tutelage under Sen. Lieberman. In bowing to Mr. Summer’s wishes, Ms. Kagan demonstrated that she is bureaucratically adept and punched her ticket for future preferment.

“Elena is very good at reading the lay of the land, at having a sense of who is where on what issue and what the art of the possible might be, who can be influenced, who cannot,” said [Harvard Law professor Robert H.] Mr. Mnookin, who specializes in conflict resolution.

Until the last few months, Ms. Kagan had never represented a client in court. She has not been a judge or arbitrator. She has published little, despite publishing profusely being a common requirement for tenure or high administrative duties. She has never stepped outside the bureaucratic mainstream to advocate for a legal passion or used her academic prominence to oppose a blatant injustice. (During the Bush years, she had a host of issues to choose from.) She did hire 29 tenured faculty, 23 of whom were male and 1 of whom was non-white. Several of them were conservative ex-Bush administration lawyers, such as Jack Goldsmith.

Ms. Seelye concludes that Ms. Kagan’s

management of the recruiting dispute shows her to have been, above all, a pragmatist, asserting her principles but all the while following the law, so that Harvard never lost its funding.

Compare the standard trad-med description of Mr. Obama with that description of Ms. Kagan: Pragmatist? Check. Claims to have gone to great lengths to assert her principles? Check. Not rebellious; follows the law without publicly advocating that it be changed or boycotted to avoid an injustice? Check. Preserved Harvard’s access to all federal dollars? Check.

Ms. Kagan’s nomination to replace Justice Stevens seems assured. She will find, however, no safety in numbers, no senior administrator whose wishes she can follow. After decades of such behavior, what will she do with her newfound freedom? Will she promote or hinder the freedoms we have long held so dear – freedoms that executive secrecy and corporate power put in peril – or with all her brilliance, will she continue to go along and get along?

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