The Spokesman-Review


John Yoo: Kagan smart, but not inspiring

What if a college dean barred from campus recruiting any law firm that provided free representation to al-Qaida terrorists? Suppose she believes that the firms are providing aid and comfort to the enemy in wartime.

There would be an avalanche of criticism from the media, the bar and the professoriat because the dean had elevated her personal views above a university’s commitment to free and open access.

Nothing like that ever happened to Elena Kagan, President Barack Obama’s solicitor general and his choice to replace Justice John Paul Stevens on the Supreme Court. When she served as dean of Harvard Law School, Kagan prohibited the U.S. military from recruiting students on campus. Why? Because it discriminates against gays and lesbians under the “don’t ask, don’t tell” policy.

I happen to agree that the president and Congress should allow gays to serve in the military. But Kagan announced her policy while the United States was fighting in Afghanistan and Iraq. And she defied a federal law – the Solomon Amendment – that ordered schools to provide equal access to the military for campus recruitment or risk losing federal funding.

Administration officials will say that Kagan’s policy held only while an appeals court blocked the Solomon Amendment, but that decision never took effect. They will argue that the military had alternatives to on-campus recruiting – but then she was slapping the military in the face purely for some cheap symbolism.

But it was more than just striking a pose. Kagan declared that excluding gays from the military was “a profound wrong – a moral injustice of the first order.” Her argument, which lost 8-0 before the Supreme Court, shows she was an activist before she was nominated to be a judge.

Kagan’s activism may have even stemmed less from moral crusading and more from a desire to get along in elite academia. She had no problems serving in the very Clinton White House that had signed the “don’t ask” policy.

There is a lot to like about Kagan: She is qualified, smart, engaging, and can lead a large, fractious place like a law school. But her gay-rights stance shows her adopting the lazy conventional liberalism of the faculty lounge over the common sense of real people (allegedly prized by this administration) and innovative or inspired thinking – hence the thinness of her published scholarship.

Take, for example, the claim that Kagan supports broad presidential powers. A closer reading of her 2001 article, “Presidential Administration,” shows she supports a president’s authority over the administrative agencies only because Congress hasn’t prohibited him. She wrote: “Congress generally may grant discretion to agency officials alone and … the president must respect the limits of this delegation.” Conceivably, Congress can free federal prosecutors or even entire Cabinet agencies from presidential control.

Another example comes from her views about her future co-workers. In a 1995 book review, she claims that Clarence Thomas’ “substantive testimony” in his confirmation hearings was “a national laughingstock.” The “weakness of Justice Thomas’ objective qualifications and the later charges of sexual harassment” deprived him of a solid confirmation (and rightly so, she suggests). Elsewhere, Kagan praises Justice Antonin Scalia for his brainpower, and she considers Justice Thurgood Marshall, the liberal black justice for whom she clerked, her hero. She adopts the lazy but standard liberal prejudice that conservative minorities are stupid, while liberal ones are heroic.

By the time of his appointment, Thomas, for whom I clerked, had served on the federal appeals court in Washington for two years, headed a major federal agency for eight years, and served as an assistant Cabinet secretary for two years. Kagan will have been solicitor general for about a year, a deputy White House official for four years, and a law school professor for the rest. Whose qualifications are “weak”?

Will Kagan be any more forthcoming than Thomas when asked to prejudge issues that will come before her on the court? Senators and the American public will soon find out.

John Yoo, a former Justice Department official under President George W. Bush, teaches law at the University of California, Berkeley, and is a visiting scholar at the American Enterprise Institute.

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