In an April 17 Washington Post article, National Review Online blogger Ed Whelan issued a bizarre attack on Solicitor General and potential Supreme Court nominee Elena Kagan. The Post reported that as dean of Harvard Law School Kagan strongly criticized the military's discriminatory "Don't Ask, Don't Tell" policy. The Post quoted Kagan saying in an email to the Harvard Law School community: "I abhor the military's discriminatory recruitment policy. [It is] a profound wrong -- a moral injustice of the first order." The Post then quoted Whelan's attack on Kagan's comments, saying that Kagan used "strikingly extreme rhetoric" that should be reserved for something like the Holocaust:
For someone who has been so guarded on so many issues, she used strikingly extreme rhetoric. Moral injustice of the first order' would seem fit for something like the Holocaust.
This is one issue that provides some jurisprudential clues as to how much her reading of the law will be biased by her policy views. If she is the nominee, that is an angle that I would press.
One could argue that discrimination against a group of Americans who only wish to fight for and serve their country begs to be criticized with strong language. But for someone who pals around with conservative extremist Glenn Beck with no complaints -- you know Beck, the guy who shamelessly invokes Holocaust imagery against anyone who undermines his paranoid narratives -- Whelan may not be the best judge of what constitutes "strikingly extreme rhetoric."
Whelan also wants you to know that he has "zero interest in exploring, much less opining on "the religion of court of appeals judge and potential Supreme Court Nominee Diane Wood. Oh no, such "classification of individuals along crude" religious lines, is "one of the ugly aspects of the diversity game." But Whelan wrote these things in an April 16 blog post that appears to only have been written in an attempt to cast doubt on Wood's religion.
Whelan wrote that he's "been hearing some folks identify [Wood] as a Protestant," but that the Chicago Tribune quoted an unsourced "friend [who] said she has not typically attended services during much of her adulthood":
One of the ugly aspects of the diversity game is that it requires classification of individuals along crude racial lines. As a younger and wiser Justice Stevens wrote thirty years ago, "If the National Government is to make a serious effort to define racial classes by criteria that can be administered objectively, it must study precedents such as the First Regulation to the Reich's Citizenship Law of November 14, 1935."
The classification of individuals along religious lines may also present delicate and unwelcome issues, especially if the distribution of benefits-such as a Supreme Court seat-turns in whole or in part on the basis of religious affiliation. What counts? Self-identification? Upbringing? Current or recent practice? Formal affiliation with, or recognition by, a religious community? Some combination of these? Something else?
In this regard, I'll note, in the context of the prospect that filling Justice Stevens's vacancy may result in no Protestants on the Court, that I've been hearing some folks identify Seventh Circuit judge Diane Wood as a Protestant. I have zero interest in exploring, much less opining on, this question. But for the diversity mavens who do, I will note that a Chicago Tribune profile of Wood states:
[Wood's] family attended Presbyterian church [when she was a child], although [Judy] Lenox [her older sister] said she has lost track of her sister's church attendance practices. A friend said she has not typically attended services during much of her adulthood.
It appears that Whelan actually has "zero interest" in credible discussion of any potential Supreme Court nominee.