Let's try an exercise in empathy.
Imagine that you want to do something. Other people like you are given permission to do this thing, and they find it useful and important.
But when you ask to do this thing, those in authority tell you that you cannot. They say you can do something just about as good, but that because of something wrong about you--something you cannot help--you cannot do what others do. They don't hold this "wrong" thing against you, but they can't let you do this thing.
Would it hurt? Would you think the authorities were kind to speak well of you or that they were harsh to deny you what you wanted?
Now suppose you are a young military recruiting officer. And that because the military refuses to promise not to discriminate against gays and lesbians, you may visit Harvard's campus, you may speak with students, you may sign them up--but you may not use the Law School's Career Services Office, the way other legal hiring organizations do.
Suppose that the dean of the law school tells you and tells students that she supports veterans, serving personnel, and students who wish to serve. But that she opposes the recruiting policy and thinks that it is morally wrong.
How would you feel about her? Would you appreciate her effort to treat you as well as possible, or would you resent her opposition to the policy you represented?
This is a situation that arises in many contexts. People want something--a benefit, a title, a privilege--and they are told they cannot have it. Exclusion always brings pain.
If you don't believe me, then ask Sen. John Cornyn (R-TX), ranking Republican on the Senate Judiciary Committee. Elena Kagan's testimony Wednesday that she had done her best to make the military welcome, within the confines of Harvard's anti-discrimination policy, for him made her sin worse, not better.
"The sole result and impact" of the policy, Cornyn said, "was to stigmatize the United States military on campus. ... If the policy had no impact on recruiting at Harvard Law School, then what was the purpose if not to stigmatize the military?"
Witnesses at hearings on Thursday who opposed Kagan's nomination agreed. Capt. Flagg Youngblood, who helped lobby for the Solomon Amendment requiring universities to give equal access to students, told the committee to "imagine Dean Kagan owned a lunch counter and she said to the military, 'Sure, you're welcome here, do you mind coming in through the back?'" Peter B. Hegseth, an Iraq veteran and executive director of Vets for Freedom, said she had "treated military recruiters like second-class citizens." Tom Moe, a retired Air Force Colonel, used precisely the same words: she "treated military recruiters as second-class citizens." Sen. Jeff Sessions, ranking Republican on the committee, agreed. "Do you feel that that policy sent a message of some kind to veterans and the recruiters?" he asked.
Republicans' anti-Kagan legal witnesses made almost no attempt to challenge her legal credentials or question her testimony on legal issues. In any case, they were severely outgunned by the pro-Kagan legal witnesses--including a former Bush head of the Office of Legal Counsel, Jack Goldsmith, and a former Bush solicitor general, Gregory Garre.
The military-recruiting dispute is so far the single potentially serious reason that Republicans have offered for opposing Kagan. But witnesses who actually were at Harvard report her as showing enormous solicitude both for veterans and for students who wanted to serve. So they have had to fall back on the contention that, because she showed moral disapproval of "don't ask, don't tell," Kagan's actions stigmatized the military and (in Sessions's words) "created an unhealthy atmosphere" for the military on campus.
She stigmatized, excluded, treated the military as less than equal.
She hurt their feelings.
In other words, we are back to the empathy standard. As Dahlia Lithwick has pointed out, conservative justices are now beginning to fashion a jurisprudence in which the courts must safeguard the tender feelings of those who wish to discriminate, because they may be criticized by those who disagree. Now the minority members of the Judiciary Committee are demanding that we feel their pain.
On Wednesday, Sen. Tom Coburn (R-OK) pleaded with Kagan for "empathy with those of us that feel there's a low confidence right now in the institutions of government."
But Kagan's critics show empathy for one side only.
I have had many active-duty service members among my students. And some of them have talked frankly to me about the sting they feel when the law school they attend requires military recruiters to conduct interviews off campus or in a separate building. And not once have I ever suggested that their feelings don't count.
But there's something missing in the empathy picture here. Kagan herself pointed that out politely in her testimony, "We were trying make sure that military recruiters had access to our students and we were trying to protect our anti-discrimination policy and the people it's designed to protect, and that is our gay and lesbian students." That was almost the only mention of a group that (and again I know this first-hand) feels excluded, disrespected, and devalued when military recruiters come to interview their classmates for jobs they will not be permitted to hold. And their feelings count too.
The policy at issue did not only affect military personnel. It affected those the military would refuse to speak to even if invited to do so. To Kagan's Republican critics and their witnesses, those excluded by the policy were invisible. Democratic senators have not been eager to mention them on TV either. And nobody in the room (nobody with access to a microphone) wanted to ask, "If it is painful to be temporarily excluded from a Career Services Office, how would it feel to be told you could never marry the person that you love?"
Kagan was the only person in the committee room to speak up for this group at all. And by all accounts, as dean at Harvard, she tried to obey the law, to obey Harvard's anti-discrimination policies, to reach out to those stung by both. She tried to be a decent person.
After the Republican attack, Elena Kagan doesn't seem like a gay-rights hero, or like a flag-waver, but just like the only person in the room who knows that disputes usually have two sides.
In other words, Elena Kagan seems like someone who would do well as a judge.