National Review Online's Ed Whelan is posting a “series of posts explaining some of the respects in which I find [Elena Kagan's] testimony unsatisfactory.” Based on the early examples, I don't think we can expect very much from them.
For instance, in one post, Whelan falsely suggests that Kagan has refused to defend the “Don't Ask, Don't Tell” policy.
Whelan has previously attacked Kagan for refusing to immediately challenge a decision by the Ninth Circuit that required the government to provide further evidence to support its contention that the “Don't Ask, Don't Tell” policy was constitutional.
Whelan notes that at her hearing, Kagan stated that she thought it would be a stronger litigation strategy not to pursue an immediate appeal to the Supreme Court for tactical reasons.
Whelan does not attempt substantively to challenge Kagan's argument that further proceedings would have given the government a stronger argument that the Ninth Circuit's decision was overly-burdensome should Supreme Court review have become necessary. He just claims that the Ninth Circuit's decision was clearly wrong, and the Supreme Court would have clearly recognized that.
Whelan then engages in a bit of mindreading. He writes:
What did not seeking immediate review really achieve? It enabled those in the Obama Administration, like Kagan, who opposed Don't Ask, Don't Tell to buy time as they worked to reverse it. And it enabled Kagan to duck taking a public position on a hot-button issue that might have complicated her prospects for a Supreme Court nomination.
But Kagan proved Whelan's claim to be utterly false at her hearing. Kagan did “take a public position” on behalf of the Obama administration on the constitutionality of Don't Ask, Don't Tell.
As Kagan testified (via Nexis):
KAGAN: So take the Pietrangelo case first, which was the First Circuit case, where the First Circuit upheld the “don't ask/don't tell” policy, and Mr. Pietrangelo brought a challenge to that decision, and the question was -- you know, he was challenging a decision that the -- the government very much approved of, which was a decision that upheld the “don't ask/don't tell” policy.
And we told the court, in no uncertain terms, not to take the case, and we defended the statute vigorously. We told the court not to take the case because the statute was constitutional.
So in that Pietrangelo brief that I filed -- and it's a brief on which I'm counsel of record -- the -- the -- the argument is made vigorously that the “don't ask/don't tell” statute is fully constitutional, given the appropriate standard of review, and particularly given the deference that courts properly owe to the military.
So the Pietrangelo brief is a brief -- and, again, I'm counsel of record on that brief -- in which the U.S. government vigorously defended the “don't ask/don't tell” policy and statute, more importantly, and told the court not to take a case which challenged a decision upholding that statute. [emphasis added]
And indeed, the brief Kagan filed in Petrangelo v. Gates did exactly what Kagan said. The brief Kagan filed stated:
Petitioner contends (Pet. i, 5-6) that this Court should grant a writ of certiorari to determine whether 10 U.S.C. 654 violates his substantive due process, equal protection, and free speech rights. The decision of the court of appeals is correct and does not conflict with any decision of this Court.
The brief then went on to defend the constitutionality of Don't Ask, Don't Tell on all of these grounds.
(It should be noted that the Solicitor General has an obligation to defend the constitutionality of federal statutes and, thus, her defense of Don't Ask, Don't Tell does not necessarily reflect her personal views on the subject.)