John McCain's Kagan Op-Ed

Sen. John McCain pens an Op-Ed in today's USA Today outlining his opposition to Elena Kagan's nomination to the Supreme Court. Sen. McCain's argument against Solicitor General Kagan is built on her actions as Dean of Harvard Law School in opposition to Don't Ask, Don't Tell. While the bulk of the Op-Ed rehashes Kagan's actions, McCain goes completely off the rails in the second section of his piece when he attempts to link Kagan's action as Dean to a judicial philosophy.

According to McCain, because the Supreme Court disagreed with actions like Kagan's, Kagan "stepped beyond public advocacy . . . into the realm of usurping the prerogative of the Congress and the president to make law and the courts to interpret it." One would be justified in asking how exactly an university administrator could possibly "usurp[] the prerogative of the Congress?" The statement is so baldly irrational it really defies critical examination. McCain's criticism might sound in reason if he were extrapolating her actions as Dean to some indication of judicial temperament--this too would be an extraordinary leap--but McCain goes out of his way not to do that. Instead he writes, "I do not believe judges should stray beyond their constitutional role and act as if they have greater insight than representatives who are elected by the people. Given the choice to uphold a law that was unpopular with her peers and students or interpret the law to achieve her own political objectives, she chose the latter." But Kagan's duty was to the students of Harvard Law School--all of those students, regardless of sexuality--it was to not interpret the Constitution of the United States. She embraced the rather long and generally celebrated tradition of American academia staking out positions that sometimes contravene current law in pursuit of justice and equality.

Don't Ask, Don't Tell was and is a stupid, half-measure of policy that has served only to discriminate against patriotic Americans. It is one thing for the Congress to pass such a law and for the Supreme Court to interpret it in accord with its plain meaning, however they manage to rationalize it with the principles of the American Constitution. It is entirely another matter for the Dean of an institution of higher learning--to say nothing of one dedicated to educating students in the law and justice--to invite onto campus recruiters compelled to discriminate in hiring against one or another minority.

Kagan's actions were civil disobedience. They were not an example of one branch of government overreaching and insulting another branch of government. I should hope that every future Supreme Court nominee in a position like Kagan's during the era of Don't Ask, Don't Tell--or any other patently discriminatory regime--would take similar action on behalf of her students.