Conservative and libertarian opposition to the appointment of Solicitor General and Supreme Court nominee Elena Kagan has been lackluster at best, and for good reason: President Obama’s choice to fill the seat of retiring Justice John Paul Stevens could be much worse. Indeed, there is some reason to believe that conservatives ought to breathe a collective (pun intended) sigh of relief.
Much of the opposition to General Kagan has been channeled to her treatment of military recruiters while Dean of Harvard Law School. In this regard, Kagan is completely without distinction among her peers. All AALS accredited law schools maintain an anti-discrimination policy that prohibits discrimination on the basis of, among other things, sexual orientation. Schools with such policies have refused to permit employers maintaining employment practices inconsistent with them to recruit on their campuses. The Justice Department, under President Bush, determined this to be a violation of the Solomon Amendment and threatened to remove all government funding from those institutions unwilling to abide by the law. Kagan, like many other law professors around the country, joined in a court challenge to the government’s interpretation.
That challenge suffered a unanimous 9-0 defeat in the Supreme Court, and forced Kagan, like all other law school deans across the nation, to choose between permitting military recruitment on campus or expose her university to the risk of losing millions of dollars in government funding.
The court challenge to the Solomon Amendment said much more about the state of American legal and higher education than it did about Kagan. It is difficult to refute the fact that large public research universities, like the rest of higher education in the United States, are within the capture and control of the left. As a 2005 study (McGinnes, Schwartz, and Tisdell) of political campaign contributions made by law professors has demonstrated, law faculties are overwhelmingly composed of and run by people with political sympathies similar to the ones held by the President and his nominee. The Justice Department’s interpretation of the Solomon Amendment forced university administrators, deans, and faculties to choose between two of the left’s most frequently articulated values, namely, nondiscrimination (over which they hold no demonstrable monopoly) and public funding of everything. When this choice between these values was put to them, we saw which one they held more sacred.
What does distinguish Kagan, however, is her track record as Dean at Harvard Law School, particularly with respect to the recruitment of conservative faculty. Contrary to popular understanding, law school deans do not hire faculty; law school faculties do. Nevertheless, few law school deans could (or would) boast of surpassing her efforts to introduce a sprinkling of conservative or libertarian scholars to the monolith of the left that is elite legal education. Some conservatives have argued that Kagan should not get credit for her efforts, since Jack Goldsmith, Adrian Vermuele, and John Manning could be hired anywhere. It is true that they should be hired anywhere, but is it really true that they would be?
I do not mean to imply that simply listening to an argument or two from the right qualifies one for the Supreme Court. It does, I think, distinguish General Kagan from many in the legal academy. It also suggests a measure of basic decency and a genuine interest in intellectual exchange that is becoming increasingly scarce. Would Kagan be the choice of a conservative or libertarian president? Of course not. The President is not likely to mimic the preferences of a conservative or libertarian. He is, however, a politician, and (in the wistful revisionist recollections of some at the University of Chicago) a legal academic. It is understandable that the President would admire someone evincing the qualities of both, and in this way, Elena Kagan permits him to replicate himself. Were the President to choose another from the legal academy, we could do far, far worse.
Examples? Don’t ask; I won’t tell.