The Harvard Way of Life
She's more likely than not to win confirmation to the Supreme Court. Thus, the really big question about Elena Kagan is blunter: How and when does the United States as a whole get out from under the sway of an alien enterprise such as her university, Harvard?
That the Kagan nomination positions one more Harvard graduate to tighten the Harvard-Yale vise on the court no more than reintroduces the consideration that Harvard isn't notably fond of the American Main Street. Out of Harvard, on a nonstop basis, pour some of America's worst ideas, such as that government has all the answers, old moralities have to go, and racism and sexism infest America—though not Harvard, you better believe it!—from top to bottom.
The old chestnut of a Harvard joke turns out to have merit: You can always tell a Harvard man, but you can't tell him much. It's because he—and these days, she as well—doesn't need to be told the rest of us are wrong about many things.
Back to Kagan, whose Harvard career underscores with splotches of crimson paint the Harvard community's intellectual and emotional remoteness from America.
Among other topics, the Kagan confirmation hearings will also bring to mind her and her university's long and deep resistance to allowing U.S. military recruiters on campus. Let us think that one through. The dean of the Harvard Law School is against affording her country's government a facility to meet with potential leaders of the very forces pledged to guarantee her country's freedoms. True, by the time she became law school dean, the Bush administration had threatened to take away Harvard's federal money if it persisted in resisting recruiters. Kagan submitted reluctantly to the new order. "I abhor the military's discriminatory policy," she said.
That was the matter in a nutshell: the military's "don't ask, don't tell" rule respecting gay and lesbian personnel. The policy violated Harvardian sensibilities. The military shouldn't judge its own policies for maintaining discipline—not when Harvard could do the job better. Dean Kagan agreed in essence. Senators will certainly quiz her on this point at the confirmation hearings.
Anyway, here was—is—characteristic Harvard know-it-allness at work. Harvard knows what's good for us: thereby saving common folk the time it takes to make up their own minds. That Harvard takes an advanced view on the gay rights question doesn't surprise. Not Harvard's viewpoint alone, but that of pretty much the whole Northeast, is that enlightened people, many of them residing in faculty and magazine offices, have settled the question in our behalf.
Where once the great unwashed thought legitimate sexual relationships were those involving partners of the opposite sex, all that old stuff has been declared null and void, not to mention rural and out-of-date.
Here's what's really interesting with respect to "don't ask, don't tell": The big question, for Harvard, wasn't how Harvard can help the military meet its professed needs. No, it was why doesn't the military acknowledge that, look here, when Harvard talks, America listens? Or sure better!
The military might or might not have judged aright of its position on how well gay and straight soldiers function at close quarters. Was it for Harvard (other liberal universities, it must be pointed out, made the same judgment) to demand that issues of military effectiveness and public safety give way to the single, burning imperative of sexual preference rights? At Harvard it was fine. Nothing else seems to have mattered.
Red State and Blue State America: you can call them smears on the map, yet they embody large realities. The two Americas are seriously at odds: "Reds" perpetually put off by the perpetual condescension of "Blues" unwilling to entertain the backward viewpoints of outsiders. Comes now yet another "Blue," headed for the highest bench in the land—a wonderful vantage point for putting down the preoccupations of Americans screwy enough to believe not every Great Idea was born in 1965.
Can we hardly wait?
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Guess what will promote the values and interests of liberalism more than anything else in the world? That's right: the constitutional (judicial-interpretive) legitimation of same-sex marriage. A legislative endorsement of same-sex marriage is relatively tame by contrast, and it's inherently more supportive of the staus quo and traditional values (which does not mean the legislative embrace of same-sex marriage is anything other than a terrible idea). Elena Kagan knows this. That's why there is no credible reason to think she will somehow decline to vote in favor of the constitutional recognition of same-sex marriage. Considering that Kagan's selection is geared to influencing the swing voter Anthony Kennedy, and considering that she is someone that Justice Kennedy might really listen to--because of her open personality and her avowedly pragmatic liberalism--same-sex marriage should be regarded as the big issue in her nomination. Everything else--her collegiate socialist sympathies, her professional hostility to the military, etc.--pales in comparison.
If the members of the U.S. Senate have their wits about them, they will demand an agreement from Kagan that the issue of same-sex marriage should be decided legislatively rather than under the auspices of the judge-made institution of judicial review. Unless she promises to defer to the legislature--both state and federal--on that issue, no senator who respects "We the People" can decently vote for her confirmation. Tough-minded senators can't go wrong in staunchly and even stridently maintaining this truth against all the brainless mantras of the liberals.
Someone who "abhors"--Elena Kagan's exact word--America's military policy on homosexuals, as one might abhor Nazi policy on the Jews, or the Allied bombing of Dresden, or General Sherman's attack on civilians in his march to the sea, simply cannot be trusted not to imperiously attempt to legitimize homosexuality despite the firm beliefs and aspirations of the people in opposition to such legitimization--unless she unambiguously promises not to.
"Abhors" is a strong word. In the context in which Kagan used it, the word reveals her triumphalist liberalism. It shines a light on the carefully cultivated veneer of her pragmatism. Why should "We the People" want someone like the closeted militant liberal Elena Kagan on the Supreme Court?
Much is being made of Elena Kagan's statement that "there is no federal constitutional right to same-sex marriage." Tricky, that one. Does it mean there is as such no right to same-sex marriage, or only that there isn't one now, but there might be in the future? Ambiguity--probably deliberate--is one problem. A more serious problem is the latitude liberals allow themselves in the activity called "growing." I can make a lot of money betting that Kagan will "grow" into accepting judicially-enforced same-sex marriage. But that's to assume she doesn't accept it now, which is not a safe assumption.
Law professor Paul Campos has a very funny line on Kagan:
"Apparently her main accomplishment as dean at Harvard was raising a lot of money, which, given that it's the Harvard Law School, sounds roughly as impressive as managing to sell a lot of pot at a Grateful Dead concert."
After everyone is clear in their minds that the matter of same-sex marriage is to be decided by the legislature and not the judiciary, we can have a homosexual Supreme Court justice. Until then, the specter of judicial activism makes it incumbent on citizens in a democratic republic to protest nominees like the presumed lesbian Elena Kagan. Because of the decades-old pervasiveness of liberal judicial activism, and the peculiar danger it presents to ideals of citizenship, Kagan herslef must tell us whether she is a lesbian or not. Otherwise we must assume she is the wrong pick at the wrong time--for the simple reason that her identity, as a lesbian, will prejudice her to legislate from the bench on this fundamental culture-shaping and society-defining issue.
The usually reliable Ed Whelan, over at NRO's "Bench Memos," has dropped the ball on this one. Where's the spine-stiffening ointment?
Thank God we have God to help us when the establishment is done helping themselves to us.
You know, there could be a powerful coalition of civil libertarians and conservatives alarmed by the expansion of government power, expansion promoted by Miss Kagan herself, along with her lack judicial track record and mediocre writing, that could muster 50 votes in the Senate to defeat her. Instead we're going to get tripe like "Is she a lesbian?" and "She hates the military" and screeds like this which is nothing more than stale Culture War rhetoric and phony populism. So she will win her nomination fight hands down even though there is much in her record that makes her unqualified for the highest court in the land. It's too bad too many are stuck in the past to understand what's going on today that could be used against her.
Tripe is in the eye of the beholder. If one is opposed to the society-redefining act of judicially-mandated same-sex marriage, it is important to oppose Kagan unless she is committed to the idea that the legislature should decide the issue of same-sex marriage. Suppose Kagan is a lesbian, as I think it is reasonable to suspect. Does anyone seriously think Anthony Kennedy will want to gravely offend her and "hurt her feelings" by voting against same-sex marriage? Ergo, 5-4 for same-sex marriage as the new law of the land. Kagan was picked precisely because she is the kind of person who can influence Kennedy. That makes her putative lesbianism very important in this nomination.
Kagan does not strike me as a particularly staunch proponent of centralized government power, or as a plausible lightning rod. I strongly doubt an anti-government strategy will derail her nomination or provide a good teaching moment.
Kagan is emphatically not a mediocre scholar. I have taken a quick look at two of her law review articles, including her book-length essay in the Harvard Law Review a few years ago, and I can attest that charges of her intellectual mediocrity are a canard. She is a pretty good scholar and a better than average writer. The quality of her academic writing is not a legitimate target, and conservatives who try to make it one will look foolish and damage their cause. What is a legitimate target is the lack of quantity, which must to be due to her ever-since-high-school plan of leaving few footprints so that she can get named to the Supreme Court.
My previous response might lead someone to think I take the specter of centralization lightly. I don't. And I have an idea for incorporating worries about centralized government into an attack on judicial supremacy. We should insist first of all that while state judicial supremacy is bad, federal judicial supremacy is much worse. As a proxy for our worries about government centralization, we should ask Supreme Court nominees what they think about the constitutional structure of government vis-a-vis third parties. After all, the duopoly we have is advancing us towards ever-more consolidation, so competition would seem to be needed in the form of a (presumably) populist third party. It stands to reason that federal judicial supremacy will advance the cause of federal power--it has been doing so since the days of Chief Justice John Marshall.
I know libertarians think judicial power can be used to restrain the growth of government. But how are they going to ensure that the judges will be right-minded? And when the judges aren't right-minded (in the view of libertarians) and hurl forth (as from the brow of Jove) a new instance of judicial supremacy, how can the general populace be expected to believe that only libertarian judicial supremacy is a good thing? One kind of judicial supremacy will beget another kind. That's the lesson libertarians need to learn.