washingtonpost.com
The Elena Kagan you won't see

By E.J. Dionne Jr.
Thursday, May 13, 2010; A17

Brace yourself for several months of occasionally biting but essentially meaningless political theater over the nomination of Solicitor General Elena Kagan to the Supreme Court.

Underlying the fight will be a fundamental divide between liberals and conservatives over the direction of the court. Thus, many senators who supported Chief Justice John Roberts and Justice Samuel Alito will oppose Kagan, while most who were against Roberts and Alito will be for her.

The irony is that the surface similarities between Roberts and Kagan are breathtaking. My conservative colleague Michael Gerson wrote of Kagan: "We know that she is connected to just about everyone in the legal establishment, and most seem to like her." Change "she" to "he," and "her" to "him," and the same sentence could have been written about Roberts.

Considerations that didn't bother conservatives during Roberts's confirmation (his Ivy League background, the fact that he wasn't a military veteran, the content of memos he wrote as an executive branch employee) will be declared highly significant in Kagan's case.

But none of this will matter. In 2005, Republicans controlled the Senate and Roberts's confirmation was more or less guaranteed. In 2010, Democrats control the Senate and Kagan's confirmation is more or less guaranteed. That means that the issues underlying the left-right differences over the judiciary, the ones senators will actually be voting on, will go largely undiscussed.

Much as I would like this debate to happen, why should Kagan abandon a successful confirmation script, even one she herself cheekily noted 15 years ago "takes on an air of vacuity and farce"? Given the incentives of the system, vacuity in pursuit of confirmation is no vice.

I say that as one of the many people who have known her for a long time and think she very much deserves to be confirmed. And paradoxically, one of the reasons I admire her involves a question Republicans are raising on which I disagreed with Kagan.

In 2003, a group of law schools went to court asserting their right to deny military recruiters access to their campuses because the "don't ask, don't tell" policy discriminated against gays and lesbians. When she was dean of Harvard Law School, Kagan signed amicus briefs supporting the schools' contention; they eventually lost their case in the Supreme Court.

I agreed with the law schools in opposing "don't ask, don't tell." It's both morally wrong and stupid. But I also argued at the time that the growing separation between the military and other parts of our society, particularly its most liberal and elite precincts, was a major problem for the country. Because closing that divide should be a high priority, perhaps especially for liberals, I felt the schools should welcome the recruiters to their campuses and find other ways to fight "don't ask, don't tell."

A couple of years later, I ran into Kagan. After we exchanged warm greetings -- her assets include an open and welcoming personality and a lovely sense of humor -- I raised the recruiting controversy, saying I thought the universities were wrong.

Several things about her response show why she will make an excellent justice. First, she understood we were debating in good faith. She doesn't turn disagreements into personal quarrels.

Second, she spoke with genuine feeling about her respect for the military. When she offers this view during her hearings, as she no doubt will, people should know it's a sentiment she has expressed in private.

Third, she made a superb argument based on a careful balancing test: Yes, in a free and democratic society, the military should be able to recruit on campuses, but university officials have an obligation to maintain policies that protect groups that are part of their student population from discrimination. At Harvard Law, Kagan struck this balance by allowing recruiters access through a student veterans group but not through its main career office.

In the end, her argument made clear that we agreed on both of the core imperatives but weighed them differently. Her approach -- simultaneously careful and principled -- is what makes for thoughtful judging.

Unfortunately, there is absolutely no reason for Kagan to offer the Senate a full airing of just how thoughtful she can be on a host of other issues. She will give the senators no more and no less than John Roberts did. She'd be a fool to do otherwise. And foolish is something she's definitely not.

ejdionne@washpost.com

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