Tuesday, June 29, 2010

The Dirt on Kagan

Judging from the opening salvos in the Elena Kagan confirmation hearing, it appears that the Republicans have few real grounds for opposing the nomination, but are putting on a show for their base.  If the most serious charge against this nominee is that as dean of Harvard Law School, she barred military recruiters from campus, there is no way Kagan is not going to be confirmed.  I say that not to offend the sensibilities of those who believe that it was simply outrageous and wrong for Kagan to have barred military recruiters from campus, but only to try to put the matter in perspective.  Because the question is not whether she was wrong--in fact let's stipulate that she was wrong--but whether there was at least a reasonable basis for her actions.

Harvard, like other law schools, has strict policies against discrimination by any recruiters who seek to use campus facilities to interview their students.  They cannot tolerate any law firms (the vast majority of recruiters) who would admit to a policy of discriminating for any reason, whether based on ethnicity, sex, religion, or sexual preference.  Imagine the outcry if Harvard, or any other major law school, allowed a law firm on campus that refused to interview blacks or Latinos or women or gays.  That cannot be allowed.  So all Kagan did was to try to apply that policy consistently to interviewers from the government.  Note that she did not, and could not, prohibit the military from recruiting Harvard students.  All she did was refuse to allow them the use of campus facilities.  How outrageous was that, really?

Ironically, the U.S. Supreme Court this week in the case of Christian Legal Society v. Martinez just upheld the right of the University of California to refuse to allow a Christian group to use school facilities and resources because of that group's discriminatory policies.  Whether one agrees or disagrees with that decision, one has to acknowledge that Elena Kagan's ideas about whether schools, public or private, should be required to allow groups that practice discrimination to use campus facilities are in the mainstream of legal thought.

(Susan Walsh / AP photo)

1 comment:

  1. "If the most serious charge against this nominee is that as dean of Harvard Law School, she barred military recruiters from campus, there is no way Kagan is not going to be confirmed."

    Agreed, but that is not the most serious aspect of the hearings. The most serious aspect of the hearings was reserved for her own words; it was a "vapid and hollow charade". Like him or despise him, at least Bork was honest -- and he knows it.

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