Whelan pushes false comparison to paint Kagan as anti-military


Ed Whelan claimed that Elena Kagan excluded military recruiters "from the Harvard law school campus" and "treated military recruiters worse than she treated the high-powered law firms" that represented terror suspects. But this comparison is flawed because Kagan's military recruiting policy was guided by the school's decades-old anti-discrimination policy; moreover, students had access to military recruiters throughout Kagan's tenure as dean.

Whelan falsely compares Kagan's treatment of military recruiters to treatment of law firms representing suspected terrorists

Whelan: "Kagan treated military recruiters worse than she treated the high-powered law firms that were donating their expensive legal services to anti-American terrorists." From Whelan's May 10 NRO blog post:

Kagan's exclusion of military recruiters from the Harvard law school campus promises to draw considerable attention precisely because -- as Peter Beinart, the liberal former editor of the New Republic, has written -- it amounted to "a statement of national estrangement," of Kagan's "alienating [her]self from the country." In her fervent opposition to the Don't Ask, Don't Tell law and the Solomon Amendment, Kagan elevated her own ideological commitment on gay rights above what Congress, acting on the advice of military leaders, had determined best served the interests of national security. At a time of war, in the face of the grand civilizational challenge that radical Islam poses, Kagan treated military recruiters worse than she treated the high-powered law firms that were donating their expensive legal services to anti-American terrorists.

Whelan's comparison is flawed because anti-discrimination policy directed Kagan's decision on military recruiters

Kagan: Harvard Law's anti-discrimination policy says an employer using OCS to recruit "must sign a statement indicating that that it does not discriminate on various bases." In a September 20, 2005, letter, Kagan stated: "The Law School's anti-discrimination policy, adopted in 1979, provides that any employer that uses the services of OCS to recruit at the school must sign a statement indicating that that it does not discriminate on various bases, including sexual orientation. As a result of this policy, the military was barred for many years from using the services of OCS."

Goldstein: Harvard anti-discrimination policy "predates Kagan's tenure as dean" and "was not directed at the military." Supreme Court expert and attorney Tom Goldstein wrote in a May 8 SCOTUSblog post:

Some commentators have claimed that Kagan's position on the Solomon Amendment reflects an anti-military bias. That criticism is unsound. Harvard's position -- which predates Kagan's tenure as dean -- was not directed at the military but instead is a categorical nondiscrimination rule applicable to all potential employers. It is a position that is widely shared among American law schools.

In 2002, Harvard Law School created exception to anti-discrimination policy for military recruiters. In a May 11 Wall Street Journal column, Robert C. Clark -- Kagan's predecessor as dean of Harvard Law -- explained that "[a]s dean, Ms. Kagan basically followed a strategy toward military recruiting that was already in place." He noted that "[s]ince 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." But, because of "Don't Ask, Don't Tell," the military "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." Clark said that in 2002, "the Air Force took a hard line with Harvard and argued that this pattern ... violated the 1996 Solomon Amendment," and the Bush administration threatened to cut funding to Harvard if the policy was not changed. An exemption to Harvard's anti-discrimination policy was crafted for military recruiters to allow them access to OCS, and Kagan upheld this policy after she became dean.

After 2004 court ruling, Kagan briefly ended military recruiter exception to Harvard's anti-discrimination policy. In 2004, a three-judge panel of the U.S Court of Appeals for the 3rd Circuit held 2-1 in FAIR v. Rumsfeld that the Solomon Amendment violated First Amendment free-speech rights: "The Solomon Amendment requires law schools to express a message that is incompatible with their educational objectives, and no compelling governmental interest has been shown to deny this freedom." Judge Walter Stapleton, a Reagan appointee, joined the majority opinion in the case. Following the 3rd Circuit's ruling, Kagan reinstated the ban against military recruitment through OCS for one semester in 2005. Military recruiters still had access to students through the Harvard Law School Veterans Association during this time.

In 2005, Kagan reinstated "this exception to our antidiscrimination policy" after Bush admin threatened to pull Harvard funding. After the Bush administration threatened to revoke Harvard's federal funding, Kagan granted military recruiters access to OCS. In her September 20, 2005, letter, Kagan announced that OCS would again "provide assistance to the U.S. military in recruiting students" and stated, "I have said before how much I regret making this exception to our antidiscrimination policy. I believe the military's discriminatory employment policy is deeply wrong -- both unwise and unjust. ... The Law School remains firmly committed to the principle of equal opportunity for all persons, without regard to sexual orientation. And I look forward to the time when all our students can pursue any career path they desire, including the path of devoting their professional lives to the defense of their country." In 2006, the Supreme Court reversed the 3rd Circuit decision.

Kagan consistently followed the law. Kagan consistently followed existing law regarding access to military recruiters. Kagan briefly restricted (but did not eliminate) access to recruiters, in accordance with Harvard's anti-discrimination policy, only after the 3rd Circuit ruled that law schools could do so. As The New York Times explained in a May 6 article:

[Kagan's] management of the recruiting dispute shows her to have been, above all, a pragmatist, asserting her principles but all the while following the law, so that Harvard never lost its financing.


[E]ven when she ... briefly barred the military from using the law school's main recruitment office, she continued a policy of allowing the military recruiters access to students. [emphases added]

Students had access to military recruiters during Kagan's entire tenure as dean

Students still had access to military recruiters via the Harvard Law School Veterans Association. In the September 2005, letter, Kagan stated that before her predecessor created the military recruiter exception to the school's "general anti-discrimination policy" in 2002, the military still "retained full access to our students (and vice versa) through the good offices of the Harvard Law School Veterans Association." In a May 8 post on SCOTUSblog, Goldstein wrote: "Immediately after the Third Circuit's ruling, Kagan reinstated Harvard Law School's prior policy: banning the military from using the main career office, but permitting access through the student veterans group." Similarly, The New York Times noted on May 6 that "even when [Kagan] ... briefly barred the military from using the law school's main recruitment office, she continued a policy of allowing the military recruiters access to students."

Kagan's actions on DADT and military recruiters were within the legal mainstream, and her view that DADT is discriminatory is widely held

Association of American Law Schools required member schools to implement nondiscrimination policy. The New York Times reported in 2005: "Since 1991, the American Association of Law Schools has required its 166 member schools to insist that any prospective employer seeking to use a law school's services for recruiting students must adhere to a policy of not discriminating on the basis of sexual orientation." The San Francisco Chronicle reported in 2006 that after AALS "added sexual orientation to its nondiscrimination policy," "most law schools" refused to admit military recruiters. After the passage of the Solomon Amendment, AALS "excused noncompliance with its nondiscrimination policies as they applied to military recruiters, as long as a school ameliorates the military's presence (1) by posting notice to the general law school community that military practices are inconsistent with the school's nondiscrimination policy under AALS Bylaw 6-4(b) and (2) by taking other steps to ensure a welcoming and inclusive environment for all students, including gays and lesbians."

Numerous law schools restricted military recruiters' access because of the discriminatory "Don't Ask, Don't Tell" policy. The Joint Appendix filed in connection with the appeal of FAIR v. Rumsfeld to the Supreme Court contains statements from numerous law professors detailing their law schools' attempts to restrict military recruiters' access to career services offices. Following the 3rd Circuit's decision, in addition to Harvard, Yale and New York Law School also reportedly reinstituted their restrictions against military recruiters.

Dozens of law professors, other law schools, and the Cato Institute argued against government's interpretation of Solomon Amendment. Kagan's legal actions and statements regarding "Don't Ask, Don't Tell" were by no means extreme. As Media Matters for America has documented, Kagan joined a brief filed on behalf of 40 Harvard law professors arguing against the government's interpretation of the Solomon Amendment. Briefs filed on behalf of 100 other law professors also argued against the Solomon Amendment or the government's interpretation of that amendment, as did other organizations, including the Cato Institute.

Military veterans at Harvard Law dispelled notion that Kagan was "anti-military"

Veterans: Kagan hosts Veterans Day dinner for service members. Responding to a January 30, 2009, Washington Times op-ed by Flagg Youngblood labeling Kagan an "anti-military zealot," three Iraq war veterans attending Harvard Law School -- Erik Swabb, Geoff Orazem, and Hagan Scotten -- wrote in a letter to the editor that Kagan has "created an environment that is highly supportive of students who have served in the military":

During her time as dean, she has created an environment that is highly supportive of students who have served in the military. For the past three years, Miss Kagan has hosted a Veterans Day dinner for all former service members and spouses. She pioneered this event on her own initiative, which has meant a great deal to students.

Indeed, every year, Miss Kagan makes a point to mention the number of veterans in the first-year class during her welcome address to new students. Under her leadership, Harvard Law School has also gone out of its way to highlight our military service, publishing numerous articles on the school Web site and in alumni newsletters. These are not actions of an "anti-military zealot," and greater care should be exercised before someone is labeled as such.

Veteran: "Kagan has great respect for the military." From a February 19, 2009, Harvard Law Record article about the letter by Swabb, Orazem, and Scotten:

Orazem, who served as a Marine Corps infantry officer in the invasion of Iraq, called the op-ed's attacks a "low blow" and "unfounded." Hagan Scotten, formerly a Captain in the Army Special Forces, agreed, saying, "He was just playing off of political stereotypes. Kagan has great respect for the military, and if anything she wants everyone to be allowed, regardless of whether they are openly gay."

Dean Kagan's annual dinners for veterans and the wives of servicemen have given Orazem, Scotten and Swabb an opportunity to gauge her views on the military. "The dinners were a unique opportunity to interact with Dean Kagan informally," said Orazem. "She is a little intimidating, because she always has very intelligent, penetrating questions to ask."

Orazem also noted that Kagan once shared an anecdote about a visit to Westpoint, when she was invited to speak about Constitutional issues. "She was very complimentary about the cadets, the discipline, the culture of respect, and the history of the institution."

Kagan frequently expresses respect for military while denouncing DADT policy that prevents some Americans from "join[ing] this noblest of all professions"

Kagan at West Point: "I know how much my security and freedom and indeed everything else I value depend on all of you." During Kagan's October 17, 2007, speech at the United States Military Academy at West Point, New York, Kagan stated: "I am in awe of your courage and your dedication, especially in these times of great uncertainty and danger. I know how much my security and freedom and indeed everything else I value depend on all of you." Kagan further stated that she has been "grieved" by DADT because she "wish[es]" that gays and lesbians "could join this noblest of all professions and serve their country in this most important of all ways." Kagan added:

But I would regret very much if anyone thought that the disagreement between American law schools and the US military extended beyond this single issue. It does not. And I would regret still more if that disagreement created any broader chasm between law schools and the military. It must not. It must not because of what we, like all Americans, owe to you. And it must not because of what I am going to talk with you about tonight -- because of the deep, the fundamental, the necessary connection between military leadership and law. That connection makes it imperative that we -- military leaders and legal educators -- join hands and be partners.

Kagan noted "the extraordinary service that members of the military provide to all the rest of us." In an October 6, 2003, email announcing that Harvard Law School would allow military recruiters on campus even though the school believes that, through "Don't Ask, Don't Tell," the military violated the school's policy that recruiters on campus not "discriminate on various bases, including sexual orientation," Kagan wrote: "This action causes me deep distress, as I know it does a great many others. I abhor the military's discriminatory recruitment policy. The importance of the military to our society -- and the extraordinary service that members of the military provide to all the rest of us -- makes this discrimination more, not less, repugnant."

Kagan: Military service is "the greatest service a person can give for their country." At an October 2004 rally protesting against military recruitment on campus, Kagan reportedly said: "These men and women, notwithstanding their talents, their conviction, their courage, cannot perform what I truly believe to be the greatest service a person can give for their country. And that's just wrong, that's just flat out wrong."

Kagan notes "great service that members of the military provide to all the rest of us." In the September 20, 2005, letter offering "background" on the school's stance on military recruiting on campus, Kagan wrote: "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."

Kagan: "The military is a noble profession." In an October 2008 statement on the military recruiting issue, Kagan wrote, "The military is a noble profession, which provides extraordinary service to each of us every day."

Many military experts support allowing gays and lesbians to serve openly

Mullen said DADT compromises military's "integrity." While conservatives like Whelan have claimed Kagan's rhetoric opposing the ban on openly gay service members is somehow extreme, Adm. Mike Mullen, chairman of the Joint Chiefs of Staff, has similarly argued that the policy compromises the military's "integrity." In February 2 Senate testimony, Mullen stated:

Mr. Chairman, speaking for myself and myself only, it is my personal belief that allowing gays and lesbians to serve openly would be the right thing to do. No matter how I look at the issue, I cannot escape being troubled by the fact that we have in place a policy which forces young men and women to lie about who they are in order to defend their fellow citizens.

For me, personally, it comes down to integrity -- theirs as individuals and ours as an institution.

I also believe that the great young men and women of our military can and would accommodate such a change. I never underestimate their ability to adapt.

More than 100 retired generals and admirals have called for DADT's repeal. The Palm Center has posted on its website a list of more than 100 retired generals and admirals who "support the recent comments of former Chairman of the Joint Chiefs, General John Shalikashvili, who has concluded that repealing the 'don't ask, don't tell' policy would not harm and would indeed help our armed forces."

Gates: "I fully support" decision to repeal DADT. In February 2 testimony, Defense Secretary Robert Gates stated: "Chairman, last week during the State of the Union Address, the president announced he will work with Congress this year to repeal the law known as 'don't ask, don't tell.' He subsequently directed the Department of Defense to begin the preparations necessary for a repeal of the current law and policy. I fully support the president's decision."

Former Defense Secretary Dick Cheney has called for repeal. During a February 14 interview on ABC's This Week, when asked whether it is "time to allow gays and lesbians to serve openly in the military," former Defense Secretary and Vice President Dick Cheney replied, "I think the society has moved on. I think it's partly a generational question. I say, I'm reluctant to second-guess the military in this regard, because they're the ones that have got to make the judgment about how these policies affect the military capability of our, of our units, and that first requirement that you have to look at all the time is whether or not they're still capable of achieving their mission, and does the policy change, i.e., putting gays in the force, affect their ability to perform their mission? When the chiefs come forward and say, 'We think we can do it,' then it strikes me that it's, it's time to reconsider the policy. And I think Admiral Mullen said that."

Gen. Powell stated his support for allowing gays and lesbians to serve, cited change in "attitudes and circumstances." A February 4 Washington Post article reported: "Retired Army Gen. Colin L. Powell, whose opposition to allowing gay men and lesbians to serve openly in the military helped lead to adoption of the 'don't ask, don't tell' legislation 17 years ago, said Wednesday that he now thinks the restrictive law should be repealed. 'Attitudes and circumstances have changed,' Powell said. 'It's been a whole generation' since the legislation was adopted, and there is increased 'acceptance of gays and lesbians in society,' he said. 'Society is always reflected in the military. It's where we get our soldiers from.' "

Gen. Shalikashvili called for repeal of DADT. In a January 2007 New York Times op-ed, John Shalikashvili, chairman of the Joint Chiefs of Staff when DADT was implemented, wrote: "I now believe that if gay men and lesbians served openly in the United States military, they would not undermine the efficacy of the armed forces." He also wrote, "By taking a measured, prudent approach to change, political and military leaders can focus on solving the nation's most pressing problems while remaining genuinely open to the eventual and inevitable lifting of the ban."

Gen. Jones: "[Y]oung men and women who wish to serve their country should not have to lie in order to do that." In a February 14 interview on CNN's State of the Union, Gen. James Jones, currently the national security adviser, stated, "I think that what Secretary Gates and the chairman of the Joint Chiefs of Staff articulated in testimony is the right thing to do. I think the president has signaled his intent. This is a policy that has to evolve with the social norms of what's acceptable and what's not." Asked whether it's "time to lift" DADT, he replied, "I think times have changed. I think I was very much taken by Admiral Mullen's view that young men and women who wish to serve their country should not have to lie in order to do that."

Posted In
Government, Nominations & Appointments, The Judiciary
National Review Online
Ed Whelan
Supreme Court Nominations, Elena Kagan
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