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The Atlantic: Elena Kagan the pragmatist

Kagan's position on military recruiting and gays is more moderate and above all more pragmatic than the bare facts might suggest.
Image: Elena Kagan
 If confirmed by the Senate, former Harvard Law School dean Elena Kagan would be the first justice to join the high court without prior judicial experience since William Rehnquist in 1972. Chip Somodevilla / Getty Images
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Nobody seems to think that Elena Kagan, Obama's nominee to replace John Paul Stevens on the Supreme Court, will have much trouble getting confirmed. She was the strong favourite to get the nomination precisely because she is so confirmable. Obama has enough to contend with at the moment without having to fight for a controversial nominee. A moderate liberal is indicated, to replace Stevens, who was a moderate liberal. Ms Kagan seems to fit the bill.

She is an outstanding legal academic--a professor and Dean of the Harvard Law School. As Obama's solicitor-general and adviser in the Clinton White House, she has proven administrative talent. She gets on with conservatives as well as liberals. She has never been a judge; this is a further advantage, because it means no paper trail of controversial decisions to defend. Even as a scholar, she has been careful to avoid sweeping declarations on constitutional law. And she is a she, which helps.

The main sticking-point for conservatives, unless something entirely new turns up, is her support for banning military recruiting at Harvard in protest against the law banning people who are openly homosexual from serving in the military. Another law, the Solomon Amendment, withheld federal funding from universities which barred military recruiters. Kagan joined a brief seeking to overturn this law, which the Supreme Court subsequently upheld by a vote of 8-0.

When I first read about Kagan's position on this, I thought it a bit extreme. You can oppose the military's ban on openly gay recruits without going so far as to obstruct recruitment. Shouldn't the country's defence come first? In fact her position was more moderate and above all more pragmatic than the bare facts might suggest. As dean, Ms Kagan submitted to the federal government's threat to withhold money and allowed military recruiters. Briefly, after an appeals court struck down the Solomon Amendment, she banned military recruiters from the main career office--but not from gaining access to students through the veterans' group. Under renewed financial duress, she subsequently lifted even that limited ban, before the Supreme Court upheld Solomon.

Throughout, she voiced strong opposition to the policy on gays. At the same time, as one soldier told the New York Times, she "always supported students interested in the military." I would call that getting it right.

When recruiters came on campus, Ms. Kagan would send out e-mail messages, saying, in effect, "we distinguish between those who serve their country and the discriminatory policy under which they serve."

Last year, when [the recent law school graduate] was promoted from first lieutenant to captain in the Massachusetts Army National Guard, he invited her to the ceremony and gave her the honor of pinning his captain's bars on his shoulder.

Some liberals, for their part, are unhappy with Ms Kagan's support for the Obama administration's policies on detention of terrorist suspects, and other Bush-like claims of wide executive powers in the war on terror (as Obama, like Bush, calls it). Well, she is solicitor-general, Obama's chief litigator. It is her job to argue for her boss's positions. She may not agree with all of them, or any of them for that matter. And, since the confirmation hearings probably won't tell us, it might be a while before we find out whether she does.

But that time will most likely come because, barring a big surprise, she will get the job. Senate Republicans do not seem to be preparing to organise a filibuster to block the appointment. Seven voted to confirm her as solicitor-general. One or two have already spoken up on her behalf. The president does not want a big fight over this, and neither, it seems, do they.