Kagan and the End of the Military

So, Barack Hussein Obama has his second opportunity for a Supreme Court pick, and he has nominated Elena Kagan.  On the face of things - and, yikes, what a face! - Ms. Kagan is as personally undistinguished for any particularly outstanding evil characteristic or legal flaw as most Obama appointees are otherwise.

She is a run-of-the mill, doctrinaire, statist liberal, just like 99% of her fellow Harvard professors and Ivy League administrators.  She is, so far as is known, a law-abiding citizen, and thus actually superior to many of her fellow appointees.  She is not known to have made overtly racist speeches, nor does she have a reputation as a caustic partisan.  Quite the contrary: she has been lauded as a skilled consensus-builder and pourer of oil on troubled waters.

Given that President Obama is a far-left Democrat, and the Democratic party holds a commanding Senate majority, shouldn't the Republicans simply breathe a sigh of relief that the new appointee appears to be at least marginally sane, and pass her through as is?

Alas, no.  For hidden beneath Kagan's mild-mannered exterior lurks a fundamental flaw that, in and of itself, must necessarily be disqualifying for any Supreme Court nominee when you consider that unlike the Executive and Legislative branches, a justice stays in office for life without possibility of democratic removal.

The Military: Government's First Responsibility

The last year's Tea Party activism has reopened a long-running American debate: the proper division of authority between the Federal government as opposed to states, localities, and the people.  Our Founders included the Tenth Amendment in an effort to keep as much power as possible with the states, and restrict the national level as much as feasible.

They most certainly did not intend the Federal government to be powerless, however.  They'd actually tried that under the Articles of Confederation, and it was a miserable and near-nation-ending failure.

That's why the Constitution explicitly gave full control of America's armed forces, not just to the Federal government, but to the most centrally-controlled branch: the Executive.  Our President is the Commander-in-Chief of the armed forces, with full power to defend the United States from all enemies foreign and domestic - subject, of course, to Congress' power to declare war and determine funding, but two hundred years of experience have shown the President's power to unilaterally enter into war as more a matter of "asking forgiveness, not permission."

Why, when the Founders went to such great lengths to dilute all other forms of governmental power, did they do the exact opposite with the army?  After all, the army is by far the most visible source of oppression and harm to the people; bureaucrats may take your goods and freedoms, but soldiers shoot you dead.

The trouble is, there is no way to run an army other than by a single, unitary chain of command.  History shows many examples of victorious armies led by a single great leader against overwhelming odds; history also shows examples of armies that were powerful on paper, but which failed in the field because they were run by committee.  Our Founders placed military control in the hands of the one man who answers directly to the American nation as a whole, every four years when we vote for president.

As a result, the military is given the authority to do things that no other American organization would ever be permitted.  Can a court force civilians to be sent to their deaths, unconvicted of any crime?  Can Congress pass a law yanking innocent people from their lives and sending them off into a new career not their choice?  No - save in the cause of national military service under the draft.

The Founders recognized that, in order for the Constitution to mean anything at all, America had to be able to defend itself.  In a conquered America, the finest legal documents would be mere scraps of paper.  By intentional design, our federal government is permitted to do almost anything required for national defense, on the presumption that going over the invisible line of the acceptable would be punished severely at the next election.

What has this to do with Elena Kagan?  By her actions as Dean of Harvard Law School, she has revealed her belief that there is nothing special about the military and that its unique and essential requirements are of no consequence.  In other words, her liberal beliefs are more important than reality, national defense, the safety of our troops, or the lives of Americans here and abroad.

Gay: More Than OK, It's Demanded

It's not news that our liberal elites, and most particularly their educational establishments, are fierce partisans in favor of all things homosexual.  Any criticism of homosexuality or any suggestion that there are situations in which it's not for the best are absolutely banned.

In keeping with this philosophy, most if not all Ivy League colleges have strict "anti-discrimination" policies in which any organizations that don't grant full equality to homosexual couples are discriminated against and banned from college career fairs.

The military of the United States, of course, does not meet that requirement.  In fact, the famous "Don't Ask, Don't Tell" policy is not just a military regulation, it's the law - passed by Congress, and signed by the President.  Public homosexuals are not eligible for military service, and until the law is changed, that's that.

As befits her status as a liberal icon, Dean Kagan found this democratically-passed law to be morally offensive to her.  But by the time she took office at Harvard, Congress had passed the Solomon Amendment banning federal funding of colleges which discriminated against military recruiters.  Go with her "moral" beliefs, or follow the law?

To her credit, Kagan did follow the law, in a minimalistic way.  The New Yorker records:

Kagan tried-tortuously-to steer a middle course. At first, she continued a previous policy of letting the military recruit. Then, in 2004, after the Third Circuit declared the Solomon Amendment unconstitutional, she evicted the military-sort of. She prohibited the military from using the school's Office of Career Services, but allowed the recruiting of students to continue through the school's veterans association. When the Solomon Amendment case went before the Supreme Court, Kagan sided with the plaintiffs-again, sort of. She signed a brief that did not go as far as the plaintiffs in the case wanted; the brief, written by her former Clinton Administration colleague Walter Dellinger, made a narrower point. It argued instead that the law did not apply as the government maintained. In any case, the Supreme Court unanimously rejected both the plaintiffs' and Dellinger's arguments and upheld the Solomon Amendment in full. Like virtually all universities, at this point, Kagan responded by allowing the military recruiters to return to full access to the school's students.

So what's the problem?  The Washington Post reports:

Four months after becoming dean of Harvard Law School, Elena Kagan sent an e-mail to students and faculty lamenting that military recruiters had arrived on campus, once again, in violation of the school's anti-discrimination policy. But under government rules, she wrote, the entire university would jeopardize its federal aid unless the law school helped the recruiters, despite the armed forces' ban on openly gay members.

"This action causes me deep distress," Kagan wrote that morning in October 2003. "I abhor the military's discriminatory recruitment policy." It is, she said, "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. [emphasis added]

A moral injustice of the first order?  In a world where Muslim terrorists blow up themselves and as many innocents as they can get in range; where Muslim mothers perform excruciating, needless surgery on their minor daughters in so-called "female circumcision" and their fathers and brothers stand ready to murder daughters with the temerity even to speak with a single man; where Adolf Hitler attempted to exterminate the Jewish race fifty years ago and Mahmoud Ahmadinejad boasts of his desire to finish the Nazis' uncompleted work; where tens of millions of innocent unborn babies are brutally sliced to ribbons and vacuumed out of their mothers without benefit of anesthesia - the overriding moral injustice of our day is our military's desire to keep serving soldiers from having to be forced into close and often nude proximity with those who would have sexual designs on them?

If it were a matter of forcing women to live, sleep, change, and shower with horny men, Dean Kagan would no doubt be first in line to condemn whatever lascivious monster came up with the idea; but for homosexuality, no deference can be too great.

The most ignorant person can easily imagine the devastation to military morale and unit cohesive that inevitably would arise from soldiers having to worry that their buddy who ought to be watching their back is instead eyeing their backside.

Positively the last thing we need to introduce to our fighting forces is internal sexual politics.  Military forces which have to integrate the two biological sexes have a long and sordid history of needless problems, everything from sexual harassment to logistical problems inherent in inconveniently-timed pregnancies.

And for what?  Modern technology means we don't need the multi-million-man armies of the past; our modern military includes, at most, 1% of America's population.  Out of the 99% of other possible jobs, there is nothing for the perhaps 3% homosexual?

The Ivy League schools, and particularly Harvard, are considered to be the finest educational establishments in the world.  Yet they consciously make it as difficult as possible for their students to continue, much less choose, a career serving as America's defenders in our military.  Shouldn't they want our warfighters to have, and to be, the very best?

It is not necessary to be a veteran in order to be a true-blue patriot.  It is, however, necessary to support our troops - to want them to be the best they can be and to have what they need, and to honor those who choose to serve.

Elena Kagan felt otherwise.  Yes, she behaved more honorably than many of her peers would have had her do: she obeyed the law as written and as determined by the courts.  Her views are certainly "mainstream" in her academic and elite community but she followed the law.  And like any other American, she has an absolute right both to hold and to express whatever views she pleases.

That doesn't make her views right, or patriotic, or American.  That simply emphasizes just how un-American, extreme, and radical our elites and their universities have become.  The fact that virtually every other bigshot college and professor agrees with Kagan doesn't make her suitable for the high court - if anything, it disqualifies the rest of them from continuing their rule over us, and deeply concerns us that the highest levels of the judiciary are almost exclusively drawn from that pool.

So let's sum up: Elena Kagan feels that liberal social engineering is far, far more important - is a moral imperative, even - compared to the effective defense of our nation, the one area of power that our Constitution actually gave the Federal government total responsibility to handle and which every American regardless of political persuasion can and should support!

In light of this plain fact, do we even need to wonder what her opinion on other issues might be?  On abortion, say, on taxes, on government takings and red tape, on illegal immigration?  The answer is as obvious as it is appalling.

William F. Buckley was wiser even than he knew:

I'd rather entrust the government of the United States to the first 400 people listed in the Boston telephone directory than to the faculty of Harvard University.

Which is precisely what President Obama proposes to do - even after the Supreme Court unanimously told Kagan that her radicalism was dead wrong.