Tuesday, July 6, 2010

Will Elena Kagan Go Down on Don't Ask, Don't Tell Hypocrisy?

Elena Kagan kept U.S. military recruiters out of the career services offices at the Harvard Law School until U.S. Supreme Court told her in 2006 she had to let them in. Now she wants to be on the U.S. Supreme Court herself. But first she has to be confirmed by the U.S. Senate, which along with the U.S. House made Don't Ask Don't Tell the law of the land back in 1993. And it doesn't help that she took a job in the White House Counsel's office for none other than President Bill Clinton, the man who signed Don't Ask, Don't Tell into law.

Of course, there was a third part to the policy: Don't Ask, Don't Tell, Don't Pursue. Now the question is just how far Senate Republicans are willing to pursue this issue. There is legislation before Congress this summer to repeal Don't Ask, Don't Tell. It would be a final irony if that passed while Kagan was turned down.

One of the hallmarks of a good judge is the capacity to enforce a law that you may not personally agree with. So one could vote to repeal the law but against Kagan. We'll see if the Republicans can persuade any of the more conservative Democrats to join them on this issue.

The real irony is that this is all taking place against a backdrop of rumors that Elena Kagan is herself gay (the White House says she is not). That would be a perfect defense: "I couldn't in good conscience support a policy that would exclude and discriminate against me." But in order to make that defense, she would have to tell and no one in the Senate is asking.

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