Mark Twain once said, “I have never let my schooling interfere with my education.” There’s a corollary to that quote in the political context: “Never let policy interfere with your politics.” The corollary has no known author because too many senators claim to have made it up. Last week, however, Senate Republican Whip Jon Kyl claimed at least partial ownership of the quote when he voted in favor of Elena Kagan’s nomination for Solicitor General.
Kagan is just one of a band of radical lawyers President Obama has nominated to lead the Department of Justice. These lawyers are the kind of leftist legal activists Andy McCarthy described as “Yale-educated and ACLU-trained.” Under their leadership, we could witness the most aggressive leftward shift in national legal policy in more than a generation. As Solicitor General, Kagan would easily be one of the most influential of the band.
Kyl knew that Kagan kicked the military off of Harvard’s law school campus during a war because she believed the military’s policy concerning homosexuals was “a profound wrong — a moral injustice of the first order.” He also knew that when she challenged the military’s policy in the Supreme Court, the Court ruled against her position. Unanimously. Supreme Court watchers believe she is at least a top five contender for any vacancy. (Kyl’s approval should help her in that regard.) How does she view the current Court? She has questioned Justice Thomas’s qualifications and referred to Justice Scalia’s work as “ultimate wrong-headedness.” None of that moved Kyl.
In his defense, Kyl can claim that Kagan did not introduce herself to senators as one of those Alinksy-Steinem-I’m-down-with-it-power-to-the-people caricatures from a Tom Wolfe essay. Not that it would matter, because he also voted in favor of Eric Holder’s nomination as Attorney General despite the fact that Holder once recommended the pardon of terrorists. Kyl also irked social conservatives by voting in favor of David Ogden for the role of Deputy Attorney General. Ogden — now known as the name most likely to show up in the search when you Google “porn” and “lawyer” — made a career out of advocating against laws regulating even the most offensive forms of obscenity.
Obama’s DOJ nominees, and Kagan in particular, put a spotlight on Kyl to exert the leadership required for the GOP whip, who is also a member of the Judiciary Committee. At the very least, we expected him to ask Kagan serious questions, and demand answers, that reflected knowledge of her prior statements and the fact that she is a rumored Obama favorite for the Supreme Court. Instead, Kyl barely lifted a finger to expose Kagan’s radicalism, and not only failed to rally the GOP as whip, but even voted to approve Kagan’s nomination in committee — something that even Sen. Specter would not do.
There is still time for Kyl to show leadership and provide a “teaching moment” on the Constitution and America’s legal culture. When Elena Kagan and similarly troubling Obama nominees come to the floor of the full Senate, Kyl should vote NO, urge his fellow conservatives to do the same, and do everything in his power to give Americans a better view of Obama’s true agenda.