Recruiters: Kagan’s Forgivable Sin – The Ninth Justice

National Journal

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.

In an October 2007 speech to the cadets at West Point, Kagan said, "I am in awe of your courage and your dedication," and, "I know how much my security and freedom and indeed everything else I value depend on all of you."

Some facts:

Kagan did not "ban" military recruiters from the campus, as many critics have erroneously said. Before, during, and after her deanship in 2003-2008, the Harvard Law School Veterans Association provided military recruiters access to classrooms and other campus space for recruiting events, with the law school’s approval.

Kagan did for a time deny the assistance of the law school’s Office of Career Services to recruiters for the military and other interested employers (if any) that discriminate against gay people. That office helps employers schedule interviews and recruit students. It is not a place where they can meet. Most private employers interview students in nearby hotels.

The law school’s policy did not prevent the military from recruiting law students who were interested in enlisting. Indeed, 18 went into the military during her tenure.

And the policy was not Kagan’s invention. It dated back to a 1979 faculty vote to bar any employer that discriminates on the basis of race, sex, age, or sexual orientation from using the Office of Career Services. Other law schools had similar policies.

I largely agree with Kagan’s assertion in a 2003 e-mail to the law school community that the government’s exclusion of open gays was "a profound wrong" and "a moral injustice of the first order." (I reserve "the first order" for, say, mass murder.)

But I fault Kagan for aiming her denunciations at what she (among many others) has over and over again called "the military’s" discriminatory recruitment policy. In fact, the "don’t ask, don’t tell" policy was set by Clinton’s implementation of the 1993 law that he signed after a Democratic Congress had passed it.

Although Congress and Clinton acted at the behest of military leaders, it was unwise for Kagan (and many others) to discriminate against military recruiters who were bound by the Clinton-signed law and policy while giving a pass to the Democratic politicians who (along with most congressional Republicans) adopted them.

In addition to Clinton, whom Kagan would later serve as a White House aide from 1995 to 1999, the politicians who voted in 1993 to perpetuate discrimination against gays in the military included then-Sen. Joe Biden and 18 current Democratic senators, among them Majority Leader Harry Reid, Senate Judiciary Committee Chairman Patrick Leahy, and 2004 presidential nominee John Kerry.

Still, I would be less harsh on Kagan than Peter Beinart, a moderate-liberal columnist for The Daily Beast, who called her policy "a statement of national estrangement" and a surrender to "the left-wing mindlessness that sometimes prevails on campus."

Indeed, one of Kagan’s great virtues as dean was her success in taking a sledgehammer to the Harvard faculty’s previously quite high quotient of left-wing mindlessness.

Kagan became dean in 2003, the year after Harvard had suspended its discrimination against military recruiters in response to a Bush Defense Department threat to strip the university of more than $300 million a year in federal research funding. (None of the money went to the law school.)

The department had invoked the 1996 Solomon Amendment, in which Congress called for defunding any educational institution that "prohibits or in effect prevents" military recruiting.

Kagan continued to give military recruiters access to the Office of Career Services during her first two years as dean. Meanwhile, in 2003 a consortium of other law schools and professors sued to challenge the Solomon Amendment as contrary to the First Amendment.

While hundreds of law professors made the same argument in amicus curiae briefs in a federal Appeals Court and later the Supreme Court, 54 of Harvard’s 81 law professors, including Kagan (in her capacity as a professor but not as dean), took a different tack.

Apparently foreseeing that the First Amendment claim had little chance of success if the case reached the Supreme Court, the Harvard professors argued in another amicus brief that the Solomon Amendment’s language should be read as allowing institutions to exclude military recruiters as part of a general policy of excluding all groups that discriminate against gays. Most of the same professors, including Kagan, later made the same argument — which would have astonished the Solomon Amendment’s authors — in the Supreme Court.

The Appeals Court held the Solomon Amendment unconstitutional by 2-to-1 in November 2004. Although the decision was stayed pending Supreme Court review, Kagan immediately reinstated her law school’s policy of relegating military recruiters to working through the campus veterans’ group.

The veterans’ group said at the time that its "tiny membership, meager budget, and lack of any office space" would prevent it from "duplicating the excellent assistance provided by the Office of Career Services" or doing much else besides coordinating campus recruiting via e-mail. "In other words," Whelan wrote, "it appears that Kagan’s decision … was, in practice, the substantial equivalent of kicking them off the campus altogether."

With all respect to Whelan, who is perhaps Kagan’s most factually meticulous and trenchant critic, this strikes me as overstated and unfair. However inconvenient her policy may have been for some, Kagan never sought to prevent military recruiters from using classrooms or other campus space to meet students.

In the summer of 2005, the Defense Department again threatened to yank federal funds, and the university again backed down. Kagan announced that the law school would give military recruiters equal access. Lamenting the inequity to gay students, she explained that "the importance of the military to our society — and the great service that members of the military provide to all the rest of us — heightens, rather than excuses, this inequity."

The Supreme Court put an exclamation point on the Defense Department’s fund-stripping threat in an 8-0 decision reversing the Appeals Court in March 2006. The opinion, by Chief Justice John Roberts, rejected both the plaintiffs’ First Amendment challenge and the Harvard brief’s strained interpretation. His tone seemed to suggest that the legions of law professors supporting the lawsuit had showed little understanding of law.

In fairness to Kagan, the brief that she signed took a more defensible position than those attacking the Solomon Amendment as unconstitutional. She believed passionately in the justice of her cause. And refusing to sign might have offended Harvard’s overwhelmingly liberal faculty and student body so much as to set back Kagan’s campaign to make the law school more open to conservative perspectives and healthy debate.

A conservative Kagan critic might retort: Aren’t you admitting that Elena Kagan’s world is a legal academic complex oozing politically correct bias, moral vanity, detachment from the real world, and a cynical view of the law as meaning whatever you can manipulate it to mean?

Yes, to some extent. But while she was unwise to discriminate against military recruiters, Kagan is not part of the p.c. problem. She is part of the commonsense solution.