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.
