SCOTUS Nominee and the Military: What actually happened.

[SirNitram]

Link

With the announcement of Elena Kagan as nominee for the open seat on the Supreme Court, comments both sound and foolish are sure to flood the media. In the prior category is the observation that Ms. Kagan is a brilliant legal scholar with a superb record of service in the federal government and as a law school dean. In the foolish category, we are already hearing a replay of an attack critics used against her when she was being considered for her current position as solicitor general.

That attack goes something like this: During her time as dean of Harvard Law School (2003-2009), Ms. Kagan showed herself to be antimilitary—an extremist bent on harming the military's efforts to hire some of the best law school graduates in the country.

I write to rebut that argument, and believe that I am in a good position to do so. I served as dean of Harvard Law School from 1989 to 2003, and know the history of military recruiting there. I taught Ms. Kagan in the mid-1980s—she was one of the best students I've had—served as dean when we hired her as a tenured professor, and strongly supported her appointment as my successor.

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.

The symbolic effect of this special treatment of military recruiters was important, but the practical effect on recruiting logistics was minimal. In 2002, however, the Air Force took a hard line with Harvard and argued that this pattern did not provide strictly equal access for military recruiters and thus violated the 1996 Solomon Amendment, which denies certain federal funds to an education institution that "prohibits or in effect prevent" military recruiting. It credibly threatened to bring an end to federal funding of all research at the university.

This penalty would not have hurt the law school, which has virtually no such funding. But it would have hurt other schools at Harvard, principally the medical school and the school of public health. It would have eliminated about 15% of the university's operating budget.

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.

Yet this reversion only lasted a semester because the Department of Defense again threatened to cut off federal funding to all of Harvard, and because the U.S. Supreme Court reversed the Third Circuit's decision. Once again, military recruiters were allowed to use OCS, even as the dean and most of the faculty and student body voiced opposition to "don't ask, don't tell."

Outside observers may disagree with the moral and policy judgments made by those at Harvard Law School. But it would be very wrong to portray Elena Kagan as hostile to the U.S. military. Quite the opposite is true.

In short, she allowed the military to keep flaunting a rule, save for a brief period when the courts had ruled it was not something they were allowed to flaunt. And she's firmly against DADT. Sounds good to me, but this is the big GOP opposition note.

[General Havoc]

I have strong worries about this nominee. She comes across to me as a proponent of authoritarian government power, and while she is a liberal, I worry she will even further swing the court towards the semi-arbitrary exercise of power in pursuance of its goals.

[SirNitram]

I have strong worries about this nominee. She comes across to me as a proponent of authoritarian government power, and while she is a liberal, I worry she will even further swing the court towards the semi-arbitrary exercise of power in pursuance of its goals.

There is some concern over that. Unfortunately, these real concerns are getting swept away by talking points that are one-nominee-fits-all. I fear we won't get much of a discussion on them.

[frigidmagi]

I just have one issue with the article. Everyone refers to DADT as a military policy, as if the generals could change it any moment. Just one problem with that, it's a government policy. In other words there's little the military can do about it without the government (in the persons of Congress and the President) letting them do it first.

For example if a general declared DADT wouldn't be enforced in the 90s? His ass would have been out so fast he would have bounced.

So while I can understand the stance and the action, it doesn't really help anything. It's like boycotting New Mexico over Arizona's laws. If you want DADT ended, it's Congress you have to go after and I can tell you bluntly, Congress as a group doesn't give a damn if the military can recruit on college campuses or not.

[Soontir948]

So while I can understand the stance and the action, it doesn't really help anything. It's like boycotting New Mexico over Arizona's laws. If you want DADT ended, it's Congress you have to go after and I can tell you bluntly, Congress as a group doesn't give a damn if the military can recruit on college campuses or not.

This is assuming their main goal is to get the military to dissolve DADT rather than denying them access to their career services for recruiting which they had successfully done for awhile. If I was a student there against DADT, I wouldn't want my tuition to fund their access to a school service.