Kagan could alienate purple-state Dems
The Obama administration expects Elena Kagan’s nomination to the Supreme Court to sail through the Senate. She’s a legal trailblazer, she’s been approved by the Senate already, and she enjoys the support of and has encouraged conservative legal scholars.
Most mainstream media outlets and liberal commentators have reached a similar conclusion. Yes, Kagan’s decision as dean of Harvard Law School to prevent the military from using the law school’s career center because of its position on excluding openly gay troops will cause a dust-up in the Senate; and yes, her sexual orientation has been questioned. But come on, military recruiters were not totally banned from Harvard Law; and in 2010, an openly gay person should be allowed to serve on the highest court in the land.
Whatever you think about the morality of military recruitment on campus and a person’s sexual orientation, thinking that Kagan’s nomination is unlikely to encounter major hurdles surely owes more to liberal-elite naivete than a fair-minded reading of the tea leaves. To assume her bid will enjoy smooth ride is to ignore the last four-plus decades of political and journalistic history.
Kagan’s problem with blocking the military recruiters from campus is likely to be one of perception. In truth, she allowed military recruiters access to Harvard Law School students through the school’s veterans group; and her limited ban was in place for all of one semester. But don’t expect Republicans, conservative activists, and military organizations to make those distinctions. To them, Kagan did more than fail to include the military on campus; she actively excluded it, booting its members from Harvard Yard.
Treating members of the military as the equivalent of John Birchers or Scientologists will not play well. Many veterans, still smarting from the disdain they received during the Vietnam era, have long memories. At a gun show in Des Moines, I saw a bumper sticker on the back of a car or truck that read, “I’ll forgive Jane Fonda when the Jews forgive Hitler.”
Kagan would have a political problem about her sexual orientation if the press discovers that she is in fact gay. The White House already has implied that she’s straight; technically, it issued a non-denial denial on the subject, but issuing one of those was not exactly helpful to the Nixon or Clinton administrations. But suppose the National Enquirer, the Pulitzer-nominated Enquirer mind you, does to Kagan what it did to John Edwards. If they discover that Kagan is gay, she and the administration come across as phonies.
The worst-case scenario for Democrats is that Kagan is perceived as a cross between Hanoi Jane and John Edwards. As Peter Beinart wrote, banning the military from elite campuses has only helped generations of Nixons, Atwaters, and Roves beat Democrats at the polls. And having your credibility undermined has hurt members of both parties, whether it’s been Lyndon Johnson, Richard Nixon, Bill Clinton, or George W. Bush.
Even if the worst-case scenario materializes, Kagan is likely to win confirmation. Her legal record is too thin to antagonize as many constituencies as Robert Bork did in 1987, and nominees have learned from his mistake that senators care far more about how your opinions play back home than whether they are just and true. But if it does materialize, don’t look for many Democratic senators from purple- and-red states voting for her.
Back to you Senators Nelson of Nebraska, Lincoln and Pryor from Arkansas, Landrieu of Louisiana, Nelson of Florida, and Hagan of North Carolina.