The federal court decision last Thursday holding unconstitutional the 1993 "don’t ask, don’t tell" policy that excludes openly gay people from the military may well presage a Supreme Court ruling in 2012 killing that policy once and for all. Unless Congress kills it first. The main reason: public assertions by both Admiral Mike Mullen, the chairman of the Joint Chiefs of Staff, and President Obama that the anti-gay policy is not now necessary for unit cohesion-the reason given in 19

The federal court decision last Thursday holding unconstitutional the 1993 "don’t ask, don’t tell" policy that excludes openly gay people from the military may well presage a Supreme Court ruling in 2012 killing that policy once and for all. Unless Congress kills it first.

The main reason: public assertions by both Admiral Mike Mullen, the chairman of the Joint Chiefs of Staff, and President Obama that the anti-gay policy is not now necessary for unit cohesion-the reason given in 1993 for excluding openly gay soldiers-and undermines military readiness.

The tradition of judicial deference to military and congressional judgments on military matters, which was cited by previous federal court decisions in favor of "don’t ask, don’t tell," offers little support for a discriminatory policy that the military’s civilian and uniformed leaders no longer defend and, indeed, seek to repeal. Especially when one House of Congress has already voted to repeal it, as the House of Representatives did in May.

To be sure, many in the military disagree with Obama. These include Marine Corps Commandant Gen. James Conway, who opposes any repeal, and to some extent the chiefs of the Army, Navy, and Air Force, who have urged a go-slow approach. But Conway retires this month. And Obama is Commander-in-Chief of the Armed Forces.

The outcome was never in doubt. But the narrowness of the 63–37 margin by which the Senate confirmed Elena Kagan as Supreme Court’s 112th justice this afternoon would stun a Rip Van Winkle who had slept through the rising partisan rancor that has poisoned judicial confirmations at all levels in recent years.

The vote in 1993 to confirm Justice Ruth Bader Ginsburg—who had a considerably more liberal-activist background than Kagan—was 96 to 3. The votes to confirm Justice Stephen Breyer in 1994, Chief Justice John Roberts in 2005, and Justice Sonia Sotomayor last year were 87–9, 78–22, and 68–31, respectively. (With the 50-year-old Kagan joining Ginsburg and Sotomayor, there will be three women on the court for the first time ever.)

Of the five new justices to arrive between the stormy 52–48 confirmation of Clarence Thomas in 1991 and that of Kagan, only Bush nominee Samuel Alito had a smaller margin than hers. That was 58–42, in 2006. Only four Democrats supported Alito, and at least one of those has expressed regret.

Democrats accuse the 36 Republican Senators who voted no on Kagan (as did Democrat Ben Nelson of Nebraska) of simple obstructionism, for opposing a well-qualified, relatively moderate nominee.

Indeed, many experts predict that Kagan may move the court’s ideological balance marginally to the right. While calling herself politically “progressive,” she is widely seen as less liberal than the man she replaces, 90-year-old Justice John Paul Stevens.

“They do not like the fact she is genuinely committed to judicial restraint rather than enshrining the Republican agenda in the Constitution,” Senate Judiciary Committee chairman Patrick Leahy complained during the three-day, off-and-on floor debate.

As Elena Kagan’s hearings ground through their third day, with confirmation virtually assured, viewers learned little that was new about the nominee. Mostly they saw senatorial skirmishes to fire up the conservative and liberal bases in an election year.

Republican senators tried to paint Kagan as political and deceptive on issues including so-called partial-birth abortion. But her detailed answers sounded convincing. And her questioners moved on with little followup, to the frustration of conservative activists who thought a more effective case against Kagan could have been made.

Meanwhile, Democratic senators spent their time airing gripes against the “conservative activist” Roberts Court and other pet themes.

The partial-birth-abortion issue came up when Republican Sen. Orrin Hatch of Utah told Kagan that her role in writing Clinton White House documents about the “particularly gruesome” procedure “bothers me a lot” because it could involve “politicization of science.” The Kagan documents involved a draft paper by a panel of the influential American College of Obstetricians and Gynecologists (ACOG) on whether the procedure that critics call partial-birth abortion is ever necessary to protect the health of the woman. The initial ACOG draft, which it shared with the White House, said that the panel “could identify no circumstances under which this procedure … would be the only option to save the life or preserve the health of the woman.”

Roughly since dinosaurs walked the earth, Supreme Court confirmation hearings have featured the spectacle of Republicans and Democrats alike rearranging their principles depending on the party of the nominating president and the nominee. The hearing on Elena Kagan, who completed her testimony Wednesday with other witnesses scheduled to testify late Thursday, has been no exception. On the importance of precedent, on “judicial activism,” on whether past political allegiance is a mark against a judicial nominee, and more, what one might think are neutral principles seem to vary depending on senators’ political allegiances.

In his questions–speeches, really–to Kagan this morning, for example, Rhode Island Democratic Sen. Sheldon Whitehouse seemed mightily outraged by the Roberts court’s overruling of two precedents to reach its 5-4 decision in January striking down a longstanding federal ban on campaign spending by corporations in Citizens United v. Federal Election Commission. But neither Whitehouse nor any of his Democratic colleagues has been heard to complain of decisions by the more liberal justices to overturn conservative precedents (the 2003 ruling striking down laws against gay sex and overruling a major 1986 decision called Bowers v. Hardwick comes to mind).

The Senate Judiciary Committee’s top Republican spent much of his allotted 30 minutes for questioning Elena Kagan on Tuesday morning by painting her as antimilitary. Sen. Jeff Sessions suggested President Obama’s Supreme Court nominee had created a hostile environment for the military by disfavoring military recruiters when she was dean of Harvard Law School earlier this decade.

But Kagan gave no ground. She politely contradicted Sessions even as he bluntly challenged her responses. Kagan repeatedly stressed that she had always revered the military and those who serve in it and had made this clear as dean by regularly honoring students who had served or planned to serve in the military.

She also emphasized that she had violated no law and had insured military recruiters ample access to Harvard law students and to the campus–even as she limited the law school’s assistance to military recruiters. This, she said, was in keeping with a longstanding law-school policy disfavoring any employer that discriminated against gay people.

Kagan’s testimony was truthful and precise. But whether the Sessions attacks resonated with an American public that has high respect for men and women in uniform remains to be seen.

In earlier questioning, Sen. Patrick Leahy, the committee’s Democratic chairman, used softball questions to elicit testimony by Kagan that recent decisions recognizing a constitutional right to own guns for self-defense are “settled law.” This was significant because the court’s three more-liberal members and Justice John Paul Stevens, who retired effective Monday, implied in dissenting opinions in Monday’s big gun-rights decision that they would like to overturn it and a 2008 decision that had set the stage for it. Kagan’s testimony sounded fairly close to a commitment not to vote to overturn those decisions.

Sen. Lindsey Graham, the Judiciary Committee’s least partisan member, injected a distinctive and salutary element Tuesday afternoon into a dreary confirmation process drenched in partisanship, yet devoid of real drama. The South Carolina Republican engaged Supreme Court nominee Elena Kagan in a good-natured dialogue–and tried to teach viewers a lesson–about the need to tamp down the bitter liberal—conservative battles that have poisoned judicial confirmations.

Then Graham tried to engage Kagan in another dialogue about the need for Congress and the president to work together on bipartisan legislation regulating indefinite detention of suspected enemy combatants outside the criminal process.

Graham had considerable success in both ventures–far more success than other senators of both parties who doggedly pressed Kagan to agree with their views on issues ranging from abortion, guns, and campaign finance to arbitration and environmental laws. The secret of Graham’s success with Kagan was that he focused mostly not on specific legal issues but rather on harms done by the ever-more-partisan polarization of Congress and of our broader political culture.

And the tone set by the senator allowed for some much needed levity in the committee chambers. For example, when Graham asked Kagan where she had been last Christmas–the day that a terrorist nearly succeeded in blowing up an airliner over Detroit– she said, “You know, like all Jews, I was probably at a Chinese restaurant.” The hearing room erupted in laughter.

Sen. Lindsey Graham, the Judiciary Committee’s least partisan member, injected a distinctive and salutary element Tuesday afternoon into a dreary confirmation process drenched in partisanship, yet devoid of real drama. The South Carolina Republican engaged Supreme Court nominee Elena Kagan in a good-natured dialogue–and tried to teach viewers a lesson–about the need to tamp down the bitter liberal—conservative battles that have poisoned judicial confirmations.

Then Graham tried to engage Kagan in another dialogue about the need for Congress and the president to work together on bipartisan legislation regulating indefinite detention of suspected enemy combatants outside the criminal process.

Graham had considerable success in both ventures–far more success than other senators of both parties who doggedly pressed Kagan to agree with their views on issues ranging from abortion, guns, and campaign finance to arbitration and environmental laws. The secret of Graham’s success with Kagan was that he focused mostly not on specific legal issues but rather on harms done by the ever-more-partisan polarization of Congress and of our broader political culture.

And the tone set by the senator allowed for some much needed levity in the committee chambers. For example, when Graham asked Kagan where she had been last Christmas–the day that a terrorist nearly succeeded in blowing up an airliner over Detroit – she said, “You know, like all Jews, I was probably at a Chinese restaurant.” The hearing room erupted in laughter.

Senate Judiciary Committee Chairman Patrick Leahy of Vermont and senior Republican Jeff Sessions of Alabama this afternoon set the broad themes of the committee’s nomination of Solicitor General Elena Kagan to the Supreme Court in their opening statements.

While stressing Kagan’s distinguished legal résumé–acclaimed Harvard Law School dean, first woman in that position, respected professor, seasoned former White House official–Leahy also launched the first of a series of attacks by committee Democrats on the “conservative judicial activism” of the current Supreme Court majority.

Sessions, on the other hand, criticized Kagan as too inexperienced, too liberal, too activist, too political, too friendly to big government, and too soft on illegal immigrants, among other things.

The committee’s other 11 Democrats and six Republicans mostly followed similar patterns in their own 10-minute opening statements. Today’s hearing began shortly after 12:30 p.m. and will end late this afternoon with Kagan’s own opening statement.

Leahy, suggesting that the Court’s conservatives are “partisans,” focused his fire especially on the 2000 decision in Bush v. Gore and this January’s decision in Citizens United v. FEC. In the latter, Leahy said, “five conservative justices rejected the court’s own precedent, the bipartisan law enacted by Congress, and 100 years of legal developments in order to open the door for massive corporate spending on elections.”

Citizens United held for the first time that corporations have First Amendment rights to spend unlimited amounts supporting and opposing political candidates.