Solomonic questions for Elana Kagan

Last night, in discussing the selection of Elena Kagan for Solicitor General, I noted the goodwill she has created for herself among conservatives by, among things, hiring conservative faculty at Harvard Law School. Ed Whelan agrees that Kagan has “earned that goodwill, and. . .ought to benefit from it in her confirmation hearing to be the next Solicitor General.”

Ed correctly adds, however, that “the spirit of goodwill and fair treatment shouldn’t lead Republicans to roll over and play dead, especially because Kagan is a serious contender for a Supreme Court appointment and her upcoming confirmation hearing provides an excellent opportunity to explore her legal views.” Ed notes in particular Kagan’s opposition to the Solomon Amendment, which denies federal funding to an institution of higher education that discriminatorily limits the access of the military to its campus for purposes of recruiting students. As Ed explains, “before enactment of the Solomon Amendment, many law schools, in protest against federal law restricting homosexuals in the military, had barred or disfavored military recruiting on their campuses.” And after its passage, “many law schools worked to attack or evade the Solomon Amendment.”

I do not know whether Harvard was among the evading law schools. However, Kagan did sign an amicus brief in a Supreme Court case ( Rumsfeld v. FAIR, about which we frequently commented) that read the Solomon Act in a way that would have rendered it largely meaningless. The brief Kagan signed was among the least persuasive legal documents I’ve ever read. Its position failed to command a single vote.

Kagan’s willingess to sign such a cynical brief should prompt questions at her confirmation hearing. Ed suggests several:

What, if anything, does Kagan’s amicus brief say about her ability to separate her reading of the law from her own political positions or from the politically correct stances of the legal academy? About her willingness as SG to defend federal laws that she disfavors?

There is no doubt that, barring the appearance of some old skeleton, Kagan will be confirmed, and little doubt that she should be. However, this is the time for Republican Senators to get Kagan to promise that she will indeed separate her reading of the law from her political positions and that she will defend federal laws she disfavors. Such promises shouldn’t be difficult to extract, especially if Kagan has any Supreme Court ambitions. In that event, she will want to be confirmed overwhelmingly this time around. And in that event, she will have a strong incentive to remember her promises after she takes office.

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