The main attack that appears to exist against Elena Kagan at the moment has to do with her actions as Dean of the Harvard Law School and policies concerning military recruiters.
The basic position is well represented by Newt Gingrich’s statement today Fox News Sunday (as transcribed by HuffPo):
“I think the president should withdraw it,” he said. “You don’t need a lot of hearings. The very fact that she led the effort which was repudiated unanimously by the Supreme Court to block the American military from Harvard Law school — we’re in two wars, and I see no reason why you would appoint an anti-military Supreme Court justice or why the Senate would confirm an anti-military Supreme Court justice.”
Now, a fair-minded assessment of the public record on Kagan and this subject makes it rather difficult to conclude that Kagan is “anti-military” but, rather, that she was opposed to the don’t ask/don’t tell policy. Now, there is little doubt that this will be used to score points in some corners of our politics. However, given that the sitting Secretary of Defense (you know, the one originally appointed by George W. Bush) wants the policy to go away, then it is unclear that we have some evidence of radicalism on Kagan’s part. And indeed, given shifting public attitudes on homosexuality in general, I am not so sure that the political points to be scored here are as significant as some Republicans may think. In fact, a recent poll places public support for homosexuals serving openly in the military at 75%.
In terms of what Kagan actually did as Dean, I would recommend Robert Clark’s piece in the WSJ. Clark was Kagan’s predecessor as Dean and also one of her former professors: Kagan and the Military: What Really Happened.
To wit:
As dean, Ms. Kagan basically followed a strategy toward military recruiting that was already in place. Here, some background may be helpful: Since 1979, the law school has had a policy requiring all employers who wish to use the assistance of the School’s Office of Career Services (OCS) to schedule interviews and recruit students to sign a statement that they do not discriminate on the basis of race, gender, sexual orientation, and so on.
For years, the U.S. military, because of its “don’t ask, don’t tell” policy, was not able to sign such a statement and so did not use OCS. It did, however, regularly recruit on campus because it was invited to do so by an official student organization, the Harvard Law School Veterans Association.
[…]
After much deliberation with the president of Harvard and other university officials, we decided to make an exception for the military to the school’s nondiscrimination policy. At the same time, I, along with many faculty and students, publicly stated our opposition to the military’s policy, which we considered both unwise and unjust, even as we explicitly affirmed our profound gratitude to the military. Virtually all law schools affiliated with large universities did the same.
When Ms. Kagan became dean in July of 2003, she upheld this newer policy. Military recruiters used OCS services, but at the beginning of each interviewing season she wrote a public memorandum explaining the exception to the school’s nondiscrimination policy, stating her objection to “don’t ask, don’t tell,” and expressing her strong view that military service is a noble and socially valuable career path that should be encouraged and open to all of our graduates.
In November 2004, however, the Third Circuit Court of Appeals found that the Solomon Amendment infringed improperly on law schools’ First Amendment freedoms. So Ms. Kagan returned the school to its pre-2002 practice of not allowing the military to use OCS, but allowing them to recruit via the student group.
If anything, it needs to be made clear that there is a difference between not allowing military direct access to resources of the Law School and whether or not the military was allowed to recruit on Harvard’s campus. Indeed, I was watching an interview with Mitch McConnell on MTP this morning, he seemed to conflate campus, writ large, and the Law School. These are not the same thing. Indeed, a lot of the reporting is mushy on this point, as it often makes it sound as if Kagan was blocking the military from Harvard itself. Although, in fairness, several have noted that the military did recruit elsewhere on the campus.
Still, from a purely political point-of-view, it seems to me that the entire issue is a weak one and it will mainly resonate with people who are already predisposed to oppose any Obama nominee, but will have very little significance in the overall process.
