I have, so far, withheld comment on the Elena Kagan nomination. We all know by now, or should, that this is another in the long line of dog-and-pony shows that are judicial confirmation hearings. The Senators ask questions that show how little they know about both the constitution and the process of judging, bloviating solely for the TV to try to impress their constituents that they are Solomon-like in their wisdom. The nominees answer without answering, refusing to say what they, and we, already know. That is, how will they vote on the two or three really important questions that make up the bulk of what the public cares about from the Supreme Court.
Kagan is no different. A Clinton apparatchik, now an Obama functionary, we know two things. First, that with an almost filibuster-proof majority, she will be confirmed by the democrats regardless of republican complaints. That is the power that comes with a president whose party holds the senate. That is, of course, unless the republicans are in power. Then we hear the caterwauling from the dems about the need for “mainstream” judicial nominations. Which brings us to the second thing we know.
Kagan is clearly a liberal. We know her positions on almost any issue you care to name. Second Amendment? Against it. First Amendment? Against it. Abortion? For it. Gays in the military? For it. None of this is a surprise; Kagan is not some stealth backwater justice, coming out of nowhere. She is a Harvard educated liberal who has served two liberal presidents. So the fact that she is a liberal is largely irrelevant to my complaints. The country has had liberal justices before and survived. The country has had liberals hiding as conservatives, until they were confirmed, and survived. Even that bastion of liberal thought, Thurgood Marshall, couldn’t destroy the republic single-handedly.
What irks me about Kagan is not her politics, it’s her moral incompetence. Kagan is quoted as having said that “ ‘don’t ask, don’t tell’ is a moral injustice of the first order.” There are so many things wrong with that statement it almost boggles the mind.
First of all, “don’t ask, don’t tell” is a courtesy and a kindness, as well as a strategy to avoid refusing entry into the military for homosexuals or discharging the ones already in. We won’t ask if you are queer, and as long as you don’t tell us, we won’t care. It seems to be a reasonable policy to me, since that is largely how I conduct my life. I have never asked anyone with which sex they sleep, and I prefer not to be told. Having once been told, I must then alter my behavior.
Second, calling it a moral injustice does violence to both words. Whether or not to allow openly homosexual people to serve in the military is not a moral question, but a practical one. There are a number of military people who have studied the question, and believe that allowing open homosexuals in the military would endanger unit cohesiveness. I don’t know that to be true, but I do know the answer to that question is a functional one, not a moral one. One would not suggest allowing a quadriplegic to serve in an infantry unit, but no-one would say that decision had a moral component to it. As far as injustice goes, the concept of justice embodies the principle of treating like things alike. It is not unjust to treat homosexuals differently from heterosexuals in all circumstances. There are circumstances where homosexuality can rightly be considered to be a disqualifying condition.
Third, when Kagan says “first order’” she overstates its importance. It may be an important issue, but I would reserve “first order” for the problems that threaten our very existence. Abortion, islam, unchecked war on our southern border, starvation throughout the world, genocide are all fist order issues. Whether you can engage in sodomy, announce it publicly, and expect life to go on as usual, hardly reaches to the level I get exorcised about. Kagan, however, finds no difficulty in equating the “don’t ask, don’t tell” policy with the human holocaust that surrounds us daily.
I believe that Kagan is unqualified for the Supreme Court. Not for her politics, but for her incredibly deranged perception of what constitutes serious moral issues. It reflects a paucity of thought that is appalling in someone nominated for the court, as well as a lack of fundamental education in what constitutes morality and how to discern major from minor issues thereof.
It is very obvious, to me at least, that Kagan would be a favorite of the late Roman Hruska.