BRIAN KILMEADE: Another major issue not getting much ink but certainly an impact, and that is the nomination and coronation which we thought it was going to be of Elena Kagan as Supreme Court justice. Well, the Republicans can't stop her but they can -- they can not support her and one major Republican senator is not going to support her and he made it clear in USA Today with an editorial.

STEVE DOOCY: He did. It's in the paper today. It's John McCain if you're a hotel, USA Today, it's probably free, so pick it up, or an airport. Anyway, here's what he writes in USA Today today: “I stated that the qualifications essential for evaluating a nominee for the bench included integrity, character, legal competence and ability, experience and philosophical and judicial temperament. On that test, Elena Kagan fails.” And he goes on in the body of the op-ed to talk about how when she was dean of Harvard Law, she was squarely against “don't ask, don't tell” or she barred military recruiters from the harvard campus which the senator says flies in the face of the solomon amendment.

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

Harvard students had access to military recruiters during Kagan's entire tenure as dean. Throughout Kagan's tenure as dean, Harvard law students had access to military recruiters -- either through Harvard's Office of Career Services or through the Harvard Law School Veterans Association. Kagan became dean of Harvard Law in June 2003. In accordance with Harvard's pre-existing nondiscrimination policy, she barred the school's Office of Career Services (OCS) from working with military recruiters for the spring 2005 semester after the U.S Court of Appeals for the 3rd Circuit ruled that law schools could legally do so. During that one semester, students still had access to military recruiters via the Harvard Law School Veterans Association. During the fall 2005 semester, after the Bush administration threatened to revoke Harvard's federal funding, Kagan once again granted military recruiters access to OCS.

Harvard's data show that Kagan's actions did not adversely affect military recruitment. The notion that military recruitment was adversely affected by Kagan's actions is contradicted by data Media Matters obtained from Harvard Law School's public information officer. The prohibition on Harvard Law's OCS working with military recruiters existed during the spring 2005 semester, meaning that it could have affected only the classes of 2005, 2006, and 2007. However, the number of graduates from each of those classes who entered the military was equal to or greater than the number who entered the military from any of Harvard's previous five classes.

Robert C. Clark debunked claim that Kagan banned military recruiters. In a May 11 Wall Street Journal op-ed, Robert C. Clark -- Kagan's predecessor as dean of Harvard Law School -- explained:

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.

[...]

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.”