EDITORIAL: Kagan and Shariah

Supreme court nominee displays selective moral outrage

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Supreme Court nominee Elena Kagan faces new questions about her stance on the U.S. military, just 10 days before confirmation hearings are scheduled to begin. Sen. Jeff Sessions, Alabama Republican, wants to know why Ms. Kagan was strangely silent about big money Harvard accepted from a questionable source while she served as the law school’s dean.

Ms. Kagan apparently made no public objection to a $20 million gift from a Saudi prince in late 2005, even though Saudi Arabia’s shariah law provided flogging or death as punishment for any individual caught engaging in homosexual activity. College lecturer Richard Cravatts captured the controversy at the time in Harvard Law’s independent newspaper when he wrote that the school should not be accepting millions from “a member of the ruling family of a repressive, totalitarian, sexist theocracy.”

Mr. Cravatts cited the “moral irony” of the school taking the money while at the same time pursuing Ms. Kagan’s policy of denying military recruiters access to the official campus Office of Career Services. Ms. Kagan took this action in protest of the “Don’t Ask, Don’t Tell” policy that she called a “moral injustice of the first order.” The move openly defied a specific act of Congress known as the Solomon Amendment. Ms. Kagan later joined in a brief to the Supreme Court on the question and was shot down 8-0.

Mr. Sessions blasted the hypocrisy in a statement. “Don’t Ask, Don’t Tell was created and implemented by President Clinton,” he said. “Where was her outrage during the five years she served in the Clinton White House? … Instead of taking a stand in Washington, Ms. Kagan waited until she got to Harvard and stood in the way of devoted, hardworking military recruiters.” She did so “in clear, open defiance of federal law.”

Ms. Kagan’s defenders argue that she still allowed the school’s “veterans association” to facilitate student access to military representatives. This move was a laughable fig leaf. As Mr. Sessions noted, the association itself published an open letter saying that its “tiny membership, meager budget, and lack of any office space” made its capabilities nearly nil.

Ms. Kagan takes offense at a legal policy of this country, but remained silent about a far harsher policy that happened to be of great benefit to her employer. A lawyer who stands on principle - except when money is involved - has no place on the Supreme Court.

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