The Right’s Bogus Charge Against Kagan

The Atlantic

The most forceful line of attack on Elena Kagan during the confirmation hearing that starts Monday will be that she showed an "anti-military" bent when, as Dean of Harvard Law School, she "defied" a federal law by denying to military recruiters the help that the school’s Office of Career Services provided to other employers.

If senators and voters end up deciding that this is a fair characterization, it will be extremely damaging to Kagan’s chances. But it’s not fair.

Kagan does deserve some criticism for making rhetorical attacks on "the military’s" discrimination against gays while giving a pass to her former boss President Clinton and other Democrats who adopted the 1993 law that requires the military to discriminate.

But her policy did not single out military recruiters for disfavored treatment. Rather, it applied to them a longstanding law school rule denying any employer that discriminated against openly gay people access to the career services office.

And I’m betting that after she explains all the facts, she’ll be confirmed by a comfortable margin of 63-37 or thereabouts.

The claim that Kagan has been hostile to the military is confounded by evidence that — at the same time that she was enforcing the law school’s antidiscrimination rules against recruiters — she also praised the military as a "deeply honorable" and "noble" profession and took extraordinary pains to honor students who had served or planned to serve.

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