Bench Memos

NRO’s home for judicial news and analysis.

On Robert Clark on Kagan and the Military


In today’s Wall Street Journal, Robert C. Clark, Elena Kagan’s predecessor as Harvard law school dean, offers his defense of Kagan’s treatment of military recruiters.  A few comments:

1.  Clark undertakes to defend Kagan from the general charge that (as he summarizes the charge) 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’ll highlight that my own critique (like that of many other folks) does not rest on Kagan’s subjective attitude toward the military.  Rather, as I’ve put it:

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.

Clark’s piece does not undertake to address this category of critique.

2.  Clark’s core defense of Kagan is that she “basically followed a strategy toward military recruiting that was already in place.”  That’s evidently true of her initial course of action as dean, beginning in 2003:  While vehemently condemning Don’t Ask, Don’t Tell as “a profound wrong—a moral injustice of the first order,” Kagan permitted military recruiters to avail themselves of the resources of the law school’s jobs office, lest, under the Solomon Amendment, Harvard lose its hundreds of millions of dollars in federal funding.  That approach followed the course that Clark had adopted in 2002. 

But Clark’s account appears to obscure the change that occurred in November 2004, when, in the aftermath of a Third Circuit ruling against the Solomon Amendment, Kagan barred the military recruiters from making use of the law school’s jobs office.  Clark presents that change as a return to the law school’s “pre-2002 practice.”  But what had changed since 2002, by Clark’s own account, is that the military no longer accepted what Clark euphemistically calls the law school’s “special” (i.e., discriminatory) treatment of it.  In other words, the pre-2002 practice evidently occurred with the military’s acquiescence.  What Kagan did is exclude the military recruiters over their vigorous objections.

Kagan’s own account of her November 2004 decision to bar the military recruiters from the law school’s jobs office is that she “hope[d] … that the Department [of Defense] would choose not to enforce its interpretation of the Solomon Amendment while the Third Circuit opinion stood.”  Only after DOD refused to acquiesce did she (in September 2005) permit military recruiters to make use of the law school’s jobs office.

3.  Clark contends that the “practical effect on recruiting logistics” of barring military recruiters from using the law school’s job’s office was “minimal” since the military could still recruit via the law school’s veterans association.  But the reality appears to have been very different from Clark’s account.  Here’s Tom Goldstein on the veterans association’s response to Kagan’s November 2004 decision (emphasis added):

The veterans group responded that it would attempt to coordinate recruitment to some extent by email, but it cautioned that it had “declined interim options to establish formal liaison relationships, sponsor regular on-campus military recruiting fairs, coordinate interviews extensively, or perform other equivalent functions. Given our tiny membership, meager budget, and lack of any office space, we possess neither the time nor the resources to routinely schedule campus rooms or advertise extensively for outside organizations, as is the norm for most recruiting events. Moreover, such copious involvement would dramatically constrict our ability to organize other, non-recruiting events.  The above email address falls short of duplicating the excellent assistance provided by the HLS Office of Career Services. We sincerely hope, however, that it satisfies some needs of our interested classmates and that they feel entirely comfortable in approaching us as peers.”

In other words, it appears that Kagan’s decision to bar military recruiters from using the law school job’s office was, in practice, the substantial equivalent of kicking them off the campus altogether.  By rough analogy:  Kagan didn’t even permit military recruiters on the back of the bus; rather, she told them to go hitch a ride. 

Tags: Whelan


Sign up for free NRO e-mails today:

Subscribe to National Review