The smart money says Elena Kagan, whom President Obama named this morning as his nominee to succeed retiring Justice John Paul Stevens, the 90-year-old leader of the Court’s liberal faction, will be confirmed by a wide margin. Kagan made it through a confirmation (though less comprehensive than a SCOTUS hearing) for her current job as solicitor general, the administration’s chief legal advocate before the Supreme Court (a notch down from Harriet Meier’s post, incidentally). She possesses superb academic credentials, a reputation for consensus building and, never having served on the bench, an extraordinarily short paper trail. Even Kagan’s close friend of three decades, New York Magazine’s Jeffrey Toobin, remarked “[H]er own views were and are something of a mystery. She has written relatively little, and nothing of great consequence.”
With one exception. During her (by all accounts, stellar) tenure as dean of Harvard Law School, Kagan’s efforts to bar military recruiting on campus because she objected to “don’t ask don’t tell,” the policy that prevents preventing gays and lesbians from serving openly in the armed forces, is likely to inflame conservatives and as well many moderates. During the Vietnam era, Ivy League schools banned the ROTC from campus. But that was the 60s, and many baby boomers now have children serving in the armed forces.
Most Americans acknowledge that the U.S. military is the institution that, more than any other, makes our way of life possible. Americans legitimately can disagree with military policies, but to deny the military access to potential recruits is, as liberal (and sneakily smart) Daily Beast columnist Peter Beinart observes, “a bit like barring the president or even the flag.” Kagan would be well-advised to apologize for this particular position.
Amy H Laff is a StateBrief.com partner. A graduate of Univ of Penn and Stanford Law School, Amy practiced law and mediation on the east coast before relocating to the Valley, where she founded and chairs the AZ chapter of the Republican Jewish Coalition. Amy makes frequent media appearances, including AZ Law Channel and Tony Katz Radio Spectacular. Additionally, she works with companies and candidates on branding and communication. 
