The Right's Attack on Kagan

You have to love the way some conservative “thinkers” have a way of fulfilling the caricature of them they claim to loathe. Among the experts assembled by the Washington Post to assess the nomination of Elena Kagan to the Supreme Court was Edward Whalen, President of the Ethics and Public Policy Center. The Center may be better known to NCR readers due to one of its senior fellows, George Weigel, another “thinker” who constantly steps in his own nonsense.

Whalen, who once clerked for Antonin Scalia, starts with the concern that Kagan lacks judicial experience, a requirement unknown in the Constitution whose strict interpretation Mr. Whelan so much insists upon, and a requirement not met by such justices as Felx Frankfurter, Louis Brandeis and, closer to Whalen’s home, William Rehnquist. I offer a deal: Obama will nominate someone else if all of Rehnquist’s opinions are thrown out.
Then, Whalen fulfills the caricature of conservatives as those scoundrels who hide themselves in the flag. He writes: “What explains the striking gap between President Obama's populist rhetoric about what he was looking for in a justice and the reality of the Kagan pick? In part it may be that Obama's outlook has itself been so shaped by the academic milieu that he doesn't understand how alien that environment is to most Americans -- how, for example, anyone could look askance at kicking military recruiters off a college campus while U.S. soldiers are risking their lives abroad to defend us.” The fact that soldiers are fighting abroad bears no intrinsic relation to the subject of whether or not gays should be permitted to serve openly in the military.
Of course, there was a time when conservatives argued vociferously that the government had no business telling private institutions they could not discriminate. Now, they insist a university had no business telling the government it should not do so. Go figure. Instead of making a principled argument about Kagan’s merits – and really, there is no such argument to be made – Whalen simply waves the bloody flag of homophobia and hides his prejudice in Old Glory. A twofer.

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