Does Elena Kagan deserve confirmation to the Supreme Court? Before we answer this question, we must consider a disturbing decision that she made as Dean of Harvard Law School. First, some historical context.
In 1969, in protest of the Vietnam War, Harvard University kicked the Reserve Officers Training Corps off campus. To this day, Harvard student who want to participate in ROTC must attend courses down the road at the Massachusetts Institute of Technology, and cannot earn course credit.
For years, military recruiters also had their access to the Harvard campus severely limited. As the memory of Vietnam faded, Harvard came up with a new rationale for its anti-military stance: Anti-discrimination policies that penalized the military for its refusal to allow gays to serve openly. Harvard Law School’s anti-discrimination policy was adopted in 1979.
During the eighties, Harvard Law allowed military recruiters to operate through a student group, the Harvard Law School Veterans Association, but refused to officially recognize recruiters as part of the law school’s career placement process and give them access to the Office of Career Services.
In 1996, in the wake of the gays-in-the-military controversy the led to the adoption of the “Don’t Ask, Don’t Tell” (DADT) policy, Congress passed the Solomon Amendment, which bans federal funding to schools that refuse to allow military recruiters on campus. It wasn’t until 2002, when the Department of Defense ruled that the entire University would lose federal funding (amounting to $328 million) unless the law school changed its policy, that Harvard Law allowed recruiters full access.
This is where Elena Kagan comes in. She became Dean of Harvard Law School in 2003. The same year she signed her name to an amicus brief in support of a lawsuit challenging the Solomon Amendment. The Third Circuit struck down the Solomon Amendment in 2004, but stayed its decision pending a Supreme Court review.
At this point Kagan let her zeal to punish the military for DADT get the better of her. Though the law had not changed — remember, the Third Circuit’s decision was stayed — she reverted to the pre-2002 policy.
This decision knee-capped military recruiters at Harvard Law. “Given our tiny membership, meager budget, and lack of any office space, we possess neither the time nor the resources to routinely schedule campus rooms or advertise extensively for outside organizations, as is the norm for most recruiting events,” complained the HLS Veterans Association in an email, which added that recruiters’ ability to operate would be severely constrained without “the excellent assistance provided by the HLS Office of Career Services.”
The following year, the DoD again ruled that Harvard’s funding could be pulled, since the Solomon Amendment was, after all, still the law (and it remains the law — the Supreme Court eventually reversed the Third Circuit and upheld the Solomon Amendment). Kagan was forced to relent and allow recruiters once again to have access to the Office of Career Services.
What to make of this incident does not hinge on one’s opinion of the Don’t Ask, Don’t Tell policy. (I myself support the position of Secretary of Defense Robert Gates, who has relaxed enforcement of DADT and is conducting a review of how to best go about changing it, while warning Congress against making any sudden policy changes before the review is finished.) The estrangement between the culture of the military and the culture of the Ivy League is corrosive to both. Indeed, if you want a military leadership with more liberal views on homosexuality, you should be more reluctant to entrench this cultural estrangement, not less.
People who have worked with Elena Kagan, who span the ideological spectrum, seem to all have a lot of respect for her. Some conservatives see her as among the best choices that could have been expected from President Obama, and a desire to avoid controversy was almost certainly a factor in his decision to nominate her. But her shabby treatment of military recruiters at Harvard Law will make the vote on her confirmation closer than it otherwise would have been, particularly if she doesn’t take the opportunity to apologize for her conduct. This is as it should be. Ambitious legal minds need to know that there are consequences to shunning the men and women who guard us while we sleep.