Smearing Elena Kagan, and a counterfactual

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In a recent blog post and an appearance on -- our favorite. . . FOX News! -- Newt Gingrich has claimed that the New England penal colony we know as Harvard has a double standard on gay rights. His real agenda, though, is to smear Elena Kagan, whose vociferous opposition to “Don’t Ask, Don’t Tell” is hardly a secret. The back-story is that Kagan was dean of Harvard law school in 2005, the same year that the University accepted a large gift from Saudi Prince Alwaleed bin Talal to advance cross-cultural understanding. As we all know, the Saudi regime is notoriously repressive towards homosexuals, and sodomy is punishable by death under the law of the land -- which just happens to be Sharia (Islamic law). Gingrich never explicitly questions Kagan’s moral character, but the implication is clear: Harvard (and by Harvard we mean Elena Kagan) has historically lambasted the US military for its discriminatory policies towards gays and lesbians, yet is willing to accept a donation from a country infamous for its persecution of homosexuals. Never mind that 1) it wasn’t Kagan’s decision to accept the gift, 2) she was in a poor position to undercut Harvard’s initiatives as its employee, 3) this happened in 2005 yet Gingrich has waited until now to smear “Harvard," 4) Georgetown University’s 2005 acceptance of a similar gift from Prince Talal is glossed over, and 5) that this tells us nothing whatsoever about the kind of Justice Elena Kagan might be.

Here’s a counterfactual. Suppose Kagan had come out (pun intended) against Harvard’s acceptance of Talal's gift to the detriment of the school's public standing. Do you really think Gingrich would have applauded Kagan for taking the moral high ground? Isn't it more likely he would have suggested  that Kagan’s views on gay issues compromised her ability to be professional, and that this has implications for a career as Justice? Who does Gingrich think he’s fooling here? Newt me.

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