Then there's the money issue. When she became law school dean in 2003, Kagan followed her predecessor's reluctant decision to end the ban on military recruitment through the Office of Career Services implemented to meet Harvard's 1979 anti-discrimination rules. The 1996 Solomon Amendment requires universities to grant the military equal access, and the law school acquiesced lest Harvard University forfeit federal funds.
The thing is, the instant she was able to claim a flimsy pretext to give the boot to military recruiters, she took the beach. When the Third Circuit Court of Appeals ruled that the Solomon Amendment was unconstitutional in November 2004, she quickly announced the law school would not sponsor military recruiters.
Later, the Supreme Court upheld the Solomon Amendment's constitutionality in an 8-0 decision -- which shows how slippery her legal reasoning was.
In the meantime, the Pentagon fought back. Harvard University President Larry Summers apparently re-invited military recruiters "with little apparent input from Kagan," the Washington Post reported after the Pentagon released documents on the controversy. When Kagan could pick on recruiters, she did.
I recognize that Kagan is about as moderate a liberal as the right can expect. Barring some odd revelation, she is poised to win confirmation. The GOP would be ill advised to use the filibuster to prevent an up-or-down vote.
But let's be clear about Kagan: She says she reveres the very people whom she sought to treat as second class, while she rubbed elbows with powerful Democrats (and Republicans) who pushed the policy she found to be unjust.
Then when the policy was bad for her career, she trumpeted the many ways that she worked to get around it -- why recruitment even went up.
Think about it. This was the cause that the cautious Kagan embraced, she signed an amicus brief on the issue, she put Harvard Law School on the line -- all for a vapid, hollow gesture. But if she wins a spot on the big bench, where she doesn't need to win votes or to persuade nonbelievers, it won't be a charade anymore.