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Special Report
Do Ask, Do Tell
Military recruiters and the chink in Dean Kagan’s armor.
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.
About the Author
John Tabin is a frequent contributor to The American Spectator online.
Letter to the Editor View all comments (71) | Leave a comment
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Pingback| 5.11.10 @ 6:20AM
Twitter Trackbacks for The American Spectator : Do Ask, Do Tell [spectator.org] on T links to this page. Here’s an excerpt:
Ret. Marine| 5.11.10 @ 7:26AM
Liberal mindsets do not respect the keepers of their safety. It's that simple. Nor do they respect the coesion of a units mentality to act as one. Since all liberals seem to think Veterans and the military establishment are barbaric at best, why then do they insist upon calling upon the Officers reserve units when their comrades decide a police action is needed, ( Vietnam) or active units to fight for their safety, if the liberals are so damned smart, where is there civilian security forces just as well funded, or for that matter why are the liberals always kicking and screaming when their number came up during the draft years? (Vietman again)
What this candidate shows to this veteran is she gets along to go along, hardly a worthy attitude, leadership qualification, or practical experience to be selected as a SCOTUS nominee. What she represents is that same mindset of the "won", the bogus potus, but at least she knows she wears a skirt, he doesn't realize he is a skirt.
Alan Brooks| 5.11.10 @ 8:57AM
"Since all liberals seem to think Veterans and the military establishment are barbaric at best"
Of course they are barbaric-- that's what they get paid for, not to pick daisys or bake cupcakes. Stop the slop. Nostalgia, yes; but not mawkishness.
Alan Brooks| 5.11.10 @ 9:00AM
PS:
I know what you are going to reply, but save yourself the trouble: my dad was in WWII (Army Air Force) yet he NEVER bragged about it.
Ken in People's Republic of MD| 5.11.10 @ 9:45AM
What you wrote, Alan, brings to mind something Alvin York said. When he was being wined and dined and being offered millions in endorsements for his actions in Europe, he turned down all the offers, telling his congressman, Cordell Hull, "I ain't proud of what I done over there."(as related in the movie Sergeant York, which has been judged to be very true to fact).
That's the thing. I also have veterans in my family and have had a chance to talk to many others, of all foreign wars. They universally hated what they had to do and many suffered from the memories. The Rambo stereotype is a Hollywood creation, and while there were many warrior types who lived for the thrill of battle(like George S. Patton), the vast majority did not.
Kid| 5.11.10 @ 10:38AM
It isn't really a brag. The Marine Vet. was simply taking offense to an insult, and stating that they put down the military until they need them to fight for their ideas.
devildogdon| 5.11.10 @ 2:15PM
I missed the point where Ret. Marine bragged on his service. While I admire your father's service to our country, I wonder at how far acorns feally do fall from the tree.
And as one who use's his father's sacrifices to pontificate from and not his own, please leave your opinions on the barbarity of war to those who have served.
ds80| 5.11.10 @ 7:13PM
"use's his father's sacrifices to pontificate from
You must be reading a different post. Or making it up wholesale from your bolt of agenda-cloth.
No wait, I see your point: your own children should steer clear of expressing opinions, simply because you have done so.
US Navy Veteran
Alan Brooks| 5.11.10 @ 9:35PM
"And as one who use's his father's sacrifices to pontificate from and not his own, please leave your opinions on the barbarity of war to those who have served."
You are correct, I'm a coward-- unlike my father. But he never glorified the Service as some of you do; he said: "we got good benefits [he went to school on the GI Bill) for doing a dirty job."
True, I am no role model-- but as far as his service goes, taking into account in his modesty, IMO he was a better man than YOU too.
Alan Brooks| 5.11.10 @ 9:40PM
PS,
glorifying war is making a virtue of necessity. For instance, Vietnam was terribly bungled-- nothing to be proud of.
Nothing to be ashamed of for the enlisted men, but nothing to be proud of, either.
Don| 5.11.10 @ 3:31PM
And you?
Retired Army.
Rob| 5.11.10 @ 12:51PM
I don't really get this. I am as liberal as they come and don't support DADT, but am a REALLY BIG fan of those in military serice. Most all the people I know are as well. Plus, the assumpotion that people who are IN THE MILITARY must be self loathing if they are liberal is absurd. So relly, you don't knbow what you are talking about.
Mark MacInnis| 5.11.10 @ 5:35PM
Being a big FAN, or supporter of the military doesn't mean just thanking them for their service and thinking their uniforms and equipment are cool; to be a big FAN you must ACT...which means supporting their budgets, supporting the political side that best supports and uses them in defined missions, and doesn't place them needlessly in harms way for political considerations. It means supporting the political candidates which DON'T call them losers (I'm looking at YOU, Harry Reid...). It means supporting the political candidates whose world-view of American foreign policy is in line with past and future American security. So, Rob, I find it hard to believe one can be Liberal and still be acting in the best traditions of political citizenshop that SUPPORTS the military....
RacerJim| 5.11.10 @ 8:44AM
First and foremost, thank you for your service Ret. Marine!
Second, as you correctly said, it's as simple as liberal mindsets not respecting the keepers of their freedom.
The only reason our userper POTUS nominated Kagan is because she is of exactly the same mindset re the U.S. Constitution, which is to say that she also believes it should mandate what the Federal government must do for the people rather than restrict what the Federal government can do to the people.
"When the people fear the government, you have tyranny; When the government fears the people, you have liberty." -- Thomas Jefferson.
Curly Smith| 5.11.10 @ 9:16AM
DADT is Federal Law. It was passed by Congress and signed by President Clinton. The Service recruiters are merely following the law. Kagan, and her ilk, stand firmly on the side of not following any law with which you disagree. I would have thought that a Dean of Harvard Law School would have more respect for the law. I guess we're a nation of men, not a nation of laws.
Perhaps Solicitor General Kagan would enlighten us on whether:
murder laws should apply to murderers
rape laws should apply to rapists
arson laws should apply to arsonists
terrorism laws should apply to terrorists
According to the enlightened Kagan, one is free to not follow any law if one feels the law is even minutely cumbersome. In other words, she has absolutely no respect for the law.
Willy| 5.11.10 @ 11:17AM
On the contrary. Kagan was following the state laws as they apply to Harvard. She was not allowed to permit a group that officially discriminates on her campus. You may disagree with her interpretation, but the 'law', in one form or another, was on her side. Simple as that.
Now we could all grouse about her being a 'big government liberal' that only decides to defer to her state when it suits her ideology, but then we'd ALSO have to accept criticism for 90% of the posters here who only seem to believe in state's rights when it fits THEIR ideology. Consistency people.....
Curly Smith| 5.11.10 @ 12:15PM
Federal law trumps State law.
To follow the State law, her correct course would have been to disassociate the University from Federal funding and the Federal Law. Her position is that she, and Harvard, can pick and choose which Federal Statutes apply to them. Consequently, the Dean of the Law School is advocating anarchy.
Quartermaster| 5.11.10 @ 6:08PM
Tabin and Gates are supporting illegality in "relaxing" the enforcement of DADT. That is not an option for Gates, unless he wishes to be as lawless as the rest of the Obamanation's administration.
It's the law Tabin, not an opinion. It's repeal will savage the military, but I guess you don't really care, no matter what you say to the contrary.
Michael Z. Williamson| 5.13.10 @ 3:05PM
I've served 25 years, Army and USAF. There are gays throughout, always have been, most of them as reliable as the hetero troops. It's really no big deal.
What does "Savage" the military is for them to have to pretend to be something they're not, lest time and resources better spent on fighting, be spent to demolish their lives and careers.
Anthony| 5.11.10 @ 9:48AM
How does that famous line go; something about our being safe in our beds because of vigilant rough men who are keeping us from harm?
Leftist ivory tower elites like Kagen, would be the first to whimper for brave soldiers, if our enemies ever got a hold of them, which the way things are going, will be soon.
It reminds me of Obama's pal, Bill Ayers, who called the police for help when he thought a crowd was a bit too hostile.
Yep, these brave intellectuals; the next war should have all of them in the front lines.
Rick| 5.11.10 @ 11:44AM
If we had these 'brave' intellectuals in the front lines of the next war, I'd be far less confident of victory than I am with the brave men and women who currently defend us.
Pingback| 5.11.10 @ 10:10AM
Must Reads for May 11 | NetRight Daily links to this page. Here’s an excerpt:
Janet Mom of Three| 5.11.10 @ 10:20AM
The HLS Veterans Assoc's complaint is confusing. It complains of lack of $ and office space. When I was in school there, our groups raised our own money and set up our offices in our dorms and other low-cost spaces around the square and still had hundreds--sometimes thousands--attend our events. For a group as well-funded as the US military, it is disingenuous to whine that its aims were in any way compromised by this.
MadBag| 5.11.10 @ 1:21PM
You may be a bit confused on this issue. The DOD doesn't fund any veteran group anywhere in the US that I'm aware of. The HLSVA is a private association just like any fraternal organization on the campus would be.
Dustoff| 5.11.10 @ 10:28AM
Alan Brooks| 5.11.10 @ 9:00AM
PS:
I know what you are going to reply, but save yourself the trouble: my dad was in WWII (Army Air Force) yet he NEVER bragged about it.
+++++++++++++++++++++++++++++
So your point is what? My father was also in WWII and survivied the Bataan death march and the hell ships.
Michael Z . Williamson | 5.13.10 @ 3:07PM
Dustoff: To further make your point: my dad can beat up both your dads.
:)
BubbaRight| 5.11.10 @ 10:45AM
This article missed the whole point with regards to Kagan's sign-on to the amicus brief in support of a lawsuit challenging the Solomon Amendment. What this article does not say is that the Supreme Court ruled against the lawsuit 8-0. It demonstrates her lack of understanding of the law.
adam| 5.11.10 @ 11:38AM
the article also missed her many statements and memorendum in support of the military and her encouragement to grads to serve. The 8-0 ruling may or may not have addressed the issues in her brief. SCOTUS rulings are not simplistic and they rarely address every issue that are involved in a case.
Barleyman| 5.11.10 @ 1:50PM
So Bubba,
By your logic, since Roe v. Wade is settled law, and the Constitution gives a woman the right to privacy, the Conservatives just don't understand the law? I guess I agree.
Every legal case has 2 sides, that's the way it works.
sg| 5.11.10 @ 10:48AM
the easy question is this - if you have a principle (the wrong one in this case, for all the excellent reasons suggested), why is it suddenly for sale for $328 million.
the old joke:
man: "Miss, would you sleep with me for $1,000,000"
woman: "yes i would"
man: "how about for $1.00"
woman: "NO, what do you think i am???"
man: "i think we both know what you are, now we're just haggling about price"
Allen Churchill| 5.11.10 @ 10:51AM
This story is so rich in ironies: Harvard law will not let military recruiters on campus due to "Don't ask don't tell" while we are in a multi front war with an enemy who would stone or burn gays to death. Further the country is being deprived of HLS graduates when the legal issues in the war are complicate and thorny.
Mike Smith| 5.11.10 @ 11:23AM
Elena Kagan's decision that she made as Dean of Harvard Law School is enough evidence alone to prove that she is more interested in pushing an agenda than upholding the Constitution.
St. Thor| 5.11.10 @ 11:36AM
The country being deprived of HLS graduates is a positive benefit, war, complexity, or not.
rannan3| 5.11.10 @ 12:09PM
My fears regarding Kagan, as with the last Court pick Sotomayor , are that they seek to change the Constitution, which is NOT their job, rather than interpret it, which IS their job.
I'm sure she will be confirmed , but in years to come , as with Sotomayor, I think we'll regret it.
Dixie Pixie| 5.11.10 @ 4:43PM
Greetings Rannan3
What Liberals always fail to comprehend is it is the Wisdom, Honor and Integrity of the people who make up a institution which creates an institutions reputation. Not the other way around.
Kagan can only diminish the reputation of the Supreme Court.
Which might not be a bad thing except for the price of social instability.
John3| 5.11.10 @ 12:45PM
Respect Ms. Kagan? By all means we should; but we should stand up for the truth that she will foster the leftist agenda by "reinterpreting" the American Constitution by her "empathy." We again, will watch this circus in the Senate. And if the president feels we should not mix politics with her appointment, we should all be fools: Our country and its American ideas are nearing extinction all because of misguided empathy.
CJohnson| 5.11.10 @ 1:20PM
We have turned the helm over to homosexuals, heading somehwere over the rainbow. God Speed.
Doctor Right| 5.11.10 @ 1:32PM
"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."
I myself DO NOT support Secretary Gate's decision to "relax enforcement" of DADT, and to "review" how best t' "go about changing it", and I don't know why a writer at TASOnline would, either.
DADT was one of the few things that Bill Clinton ever did that this Conservative thought made sense. In essence, DADT enshrines the time-honored concept of "mind your own friggin' business", which USED to be an American virtue.
Under DADT, If gays want to serve in the military (and they do), then that's fine, provided that they keep their private life private. Personally, I would expect this from heterosexuals as well. As long as your ability to discharge your weapon is not impeded by your choice of bed-mate, then the military has tacitly agreed to leave you alone.
Again, I have NEVER seen a problem with this. There ARE gays in the military. There always have been, and there always will be. However, a relaxation of DADT, such as will inevitably result from Mr. Gate's "review" (and Ms. Kagan's confirmation) will do the opposite of what Mr. Tabin predicts; it WILL" entrench" the "cultural estrangement", not help it. Mr. Tabin's position, based on nothing but supposition, is the opposite of logic.
We Americans are, despite the opinions of popular culture, a generally tolerant people. We may not approve of homosexuality on an individual basis (and I don't), but we dislike outright bigotry even more. But we also dislike, intensely even, when values that conflict with our own are forcibly shoved down our throats by a liberal government establishment that seeks to enshrine a "gay agenda" (and there is one) while simultaneously denigrating our values.
Maybe our society as a whole would be better if DADT were adopted across-the-board. In other words, maybe if we all minded our own business and didn't flaunt our lifestyles as inherently superior or desirable, tolerance would flourish.
Barleyman| 5.11.10 @ 1:57PM
Dr. Right... If you could get the pious Wingdings to follow the advice in your last paragraph, I'd be happy.
DADT was a good thing, but doesn't reflect our society today and needs to be eliminated. Firing someone because of their sexual preference is now against American norms and is not permitted in the private sector, or the public sector, except for the Military. It's time they caught up with the rest of us.
devildogdon| 5.11.10 @ 2:09PM
Maybe society should reflect military values?
Margie| 5.11.10 @ 2:37PM
Dr. Right,
Yes, it would be nice if the Left simply practiced DADT generally, but you know as well as I do that will never happen. While the Right is forever criticized for "trying to foist our beliefs on everybody" when in truth all we want is to live at peace with all men if possible, the Left in their projecting as usual, are the ones refusing to do same. They do not, will not, and refuse to. No, it's as Barleyman, below wants it~ "It's time they caught up with the rest of us."
And it is as God tells us it would be in Mt. 24., Mt. 10:15, Rom., 9:29, 2 Pe. 2:6, Jud. 1:7, Rev. 11:8.
Jim| 5.12.10 @ 12:07AM
This is close to my memory of the situation in 1993. My recollection is that the anti-military atmosphere around Clinton was poisonous (remember, "loathe the military," "those are our airplanes," not returning the WH guards' salutes, military aides sent to get drinks for political guests) and that the gays in the military agenda was first and foremost a power play: LOOK AT WHAT WE CAN MAKE YOU DO. WE ARE YOUR MASTERS.
The military by and large does not support having open homosexuals in the ranks, and surveys bear this out, even in 2010. The biggest explanation has to do with the same reason we have separate men's and women's restrooms or showers. I cannot think of a single argument in favor of allowing open homosexual service members that does not also apply to unisex showers and restrooms. Think about it.
cnc| 5.11.10 @ 2:38PM
Isn't kagan's position supported by the third amendment to the constitution?
BerlGoetz| 5.11.10 @ 3:23PM
We can only hope that she is quickly installed if it minimizes Obama's lectures. Heavens, he's such an odious bore!
Mike | 5.11.10 @ 3:26PM
Obama did not choose her based on her record. He knows for sure what she is! A left wing partisan who will advance his agenda. The only question is do the Republicans have the back bone to Bjork her with a filibusterer. Nothing in her past matters if they do not stand up for the citizens in this matter, she will be confirmed.
Peter McGrath| 5.11.10 @ 5:03PM
So, apparently, our nation's Supreme Court will have its first (discreet) homosexual. Does this matter, anymore? Should Ms. Kagan's sexual orientation be a matter of discussion? I would suggest - given the obvious fact that she's a liberal judicial activist - that the answer is unequivocally "Yes."
Liberals on the Court routinely engage in "judicial policy-making" - a term which should be an oxymoron but which is now a routine subject taught in college. Elected representatives craft legislation that reflects their values. Unelected, liberal justices do the same - from the Bench - and hence do violence to the republic.
Will Ms. Kagan similarly engage in such policy-making, perhaps by discovering "rights" in the Constitution relating to same-sex relationships which heretofore have eluded detection?
The answer is depressingly obvious. Another ideologically driven, intellectually dishonest liberal will now sit on our nation's highest court for decades to come. Where is the OUTrage?
Jim| 5.12.10 @ 12:08AM
Not to start rumors, but Souter?
Michael Connors| 5.11.10 @ 5:45PM
Not sure why Kagan banned military recruiters from campus. After all, DADT was promulgated by the Clinton White House, approved (I think) by a Democrat-controlled Congress, and upheld by the Supreme Court. Ours is a civilian run military. If you don't like the military's policies, don't look to the military. Look to the civilians. If she were really principled, she would have struck back against and banned recruiters from the WH (in which she served), Congress, and the SC (can you imagine HLS banning SCOTUS recruiters?).
Billie | 5.11.10 @ 7:20PM
Like Obama was The Manchurian Candidate, Kagen is The Manchurian Nominee. And just like Obama she has no paper trail, no experience and America is being asked to buy a 'pig-in-a-poke' once again. It didn't work out before; it wont work out this time. America will regret this for the next 40 years.
Interested Conservative| 5.11.10 @ 8:52PM
And on top of all this, she apparently cannot drive. In a way it's very understandable; a mid-towner growing up, career life in the major eastern urban cores, didn't get a license until her late twenties, and so on.
Still, a bizarre trait for an American. Then again, Ray Bradbury never even got a driver's license.
Pingback| 5.12.10 @ 2:07AM
http://www.scottspiegel.com/2010/05/12/do-ask-do-tell/ links to this page. Here’s an excerpt:
Curtis| 5.12.10 @ 4:44AM
I'm thinking this is going way way way too deep.
My personal theory: She ran the policy to mollify the college kids. The student groups had a bone to pick, and she took action to make them happy. When the courts came out and threatened to pull all her funding, she backed down and passed blame to "the man".
Being a Clinton staffer, intimately familiar with the way that DADT was crafted and Passed, she could have personally spoken with concerned students and directed their ire and efforts at the congress critters responsible for the law.
I don't think she's anti-military. I just think she either didn't have the brains to form an opinion, or the guts to stand by one at the time.
Oldefarte| 5.12.10 @ 1:18PM
The zeroed target should be her most probable closeted HOMOSEXUALITY, and what it will mean for her future decisions as a SC judge. Beyond that, I was awakened from my ignorance concerning Harvard [and other ''''PRIVATE UNIVERSITIES''''''] coming under the scope of the federal government and PUBLIC FUNDING by this issue of her activities/views as Dean of the Harvard Law School. I previously thought that all PRIVATE schools [like Harvard] received no public funding and therefore could refuse to allow ROTC on their campuses if they so wished, but the fact that they DO RECEIVE PUBLIC MONEY is shocking news to me!!!!!!!!!
MattZ| 5.13.10 @ 11:07PM
Speaking as a military member, I'm willing to agree with Sen Scott "Prettier than smart" Brown, who doesn't have a problem with Kagan's nomination vis-a-vis the military.
MZ
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