Ethics Bob

President Obama’s Supreme Court nomination of Elena Kagan is expected to breeze through the Senate, largely because of the absence of a “paper trail” –written opinions that a nominee who is a judge would have left for inspection. For example Republican opposition to Sonia Sotomayor crystallized around her opinion in the New Haven firefighter suit, which was wrongly characterized as Sotomayor favoring unqualified minorities over hard-working qualified whites. Kagan has left no signed opinions to be swift-boated about.

Her only sin, it appears, is to have refused to allow Harvard Law School, which she headed, to cooperate with military recruiters because the military discriminated against gays with its “Don’t ask, don’t tell” (DADT) policy.

Administration officials give an energetic lawyerly defense of Kagan’s position: she didn’t draft the policy and it was in place before she became dean. The military was allowed to recruit at Harvard, they just couldn’t get help from the law school’s career services office.

Kagan explains that DADT discriminates against gays. Surely it does. She opposes it. So does JCS Chairman Admiral Mike Mullen and probably the 90 percent of the military under the age of 25. So do I. So what.

DADT is not—and never was—merely anti-gay policy of bigoted generals. It was the law of the land, enacted in 1993 to prevent President Clinton from allowing openly gay people to serve. When Harvard—and Kagan—opposed cooperation with military recruiters they were opposing legitimate national defense activity, being carried out in accordance with the law.

Or perhaps Harvard policy trumps law? I hope that’s not the explanation of a Supreme Court nominee. Stay tuned.

Read The Ethics Challenge: Strengthening Your Integrity in a Greedy World