Ya know why having a lesbian on the Supreme Court might be a fantastic idea? For the same reason having a wise Latina could be: Because women like Sonia Sotomayor and Elena Kagan have experienced the type of institutional discrimination that white men simply can never fathom, and might be more keen to understand how the Constitution was set up to prevent crap like this. But for Kagan — who is not yet a self-confirmed lady-lover! — it also means her compassion for “gay” issues like Don’t Ask Don’t Tell could be quite an impediment to a confirmation.
Not knowing the email might one day come back to haunt her, Kagan sent, in October 2003, four months after taking over as Harvard’s Law School dean, a message to students and faculty about military recruiters coming to campus in violation of Harvard’s non-discrimination policies: “This action causes me deep distress. I abhor the military’s discriminatory recruitment policy. [… It’s] a profound wrong — a moral injustice of the first order.”
Her stance put Kagan squarely in sync with professors at Harvard and other law schools — and wholly out of sync with the Supreme Court, which later ruled unanimously that the schools were wrong. Four years after that ruling, Kagan, now the U.S. solicitor general, is a leading candidate to succeed retiring Justice John Paul Stevens. Conservatives have signaled that if President Obama nominates her, her stance on this issue — like perhaps no other in her career — dangles as ripe fruit that opponents would grab to thwart her confirmation.
As solicitor general, meanwhile, it is currently Kagan’s job to defend the government’s position in front of the Supreme Court. And had she held the job back in 2006, under George W. Bush, it would’ve been she defending the government’s right to send military recruiters. Which the Supreme Court approved, by a vote of 8-0.
And if Kagan isn’t nominated to replace Justice John Paul Stevens, and the Log Cabin Republicans’ DADT lawsuit makes it to the Court before Congress repeals it? And the justices don’t turn it down like last time? It’ll be, yep, the job of Kagan to defend the discriminatory policy.