Recruiters: Kagan's Forgivable Sin - The Ninth Justice

National Journal
May 14, 2010

The main Republican line of attack on Supreme Court nominee Elena Kagan will be to paint her as antimilitary, at worst, or at best a fellow traveler of left-wing academic America-haters, based on what many have inaccurately called her "ban" on military recruiters as dean of Harvard Law School.

Kagan did discriminate against military recruiters for some months to protest the exclusion of openly gay people from the military. Is this a big blot on her record?

A little blot at worst, I'd say, and one offset by Kagan's energetic and consistent support of students who had served and who planned to serve in the military, which she praised as a "noble" and "deeply honorable" profession.

Kagan's short-lived denial to military recruiters of the same help that the law school provided to private employers was, in my view, an unwise way to protest the unjust 1993 law -- adopted by a Democratic Congress and signed by President Clinton -- that excluded openly gay people from the military.

"At a time of war, in the face of the grand civilizational challenge that radical Islam poses," charges Ed Whelan, head of the conservative Ethics and Public Policy Center, in National Review Online's Bench Memos blog, "Kagan treated military recruiters worse than she treated the high-powered law firms that were donating their expensive legal services to anti-American terrorists."

Ouch. But Kagan's restrictions on military recruiting were both inherited and largely symbolic. They do not appear to have impeded recruiters' access to interested students. She held annual Veterans Day dinners at her home for students who had served. And three Iraq War veterans who were students on her watch praised "Dean Kagan's strong record of welcoming and honoring veterans on campus" in a letter to the Senate Judiciary Committee.

Continue