Bench Memos

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Media Matters’ Distortion of Kagan’s Record on Solomon Amendment


I don’t have time to try to keep up with all of the distortions and illogic that Media Matters generates, but let me respond briefly to its recent post titled “Whelan pushes false comparison to paint Kagan as anti-military”:

1.  Media Matters quotes my observation (in point 5 of my initial summary post on Kagan) that “Kagan treated military recruiters worse than she treated the high-powered law firms that were donating their expensive legal services to anti-American terrorists.”*  Media Matters doesn’t dispute that my observation is accurate, but it maintains that my “comparison is flawed because [Harvard’s] anti-discrimination policy directed Kagan’s decision on military recruiters.” 

Earth to Media Matters:  Federal law—in the form of the Solomon Amendment—takes priority over Harvard law school policy.  If Harvard wanted to continue to receive federal funds, it had to comply with the Solomon Amendment.

2.  Media Matters maintains that “Kagan consistently followed the law.”  That’s simply false.  When she barred military recruiters from the law school’s jobs office in the aftermath of the Third Circuit’s ruling, she violated the Solomon Amendment.  As she has acknowledged, the Third Circuit’s proposed injunction against the Defense Department’s interpretation of the Solomon Amendment never went into effect.  In her words, 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.”  But it did so (and she finally acquiesced).  In the end, the Supreme Court unanimously agreed with the Defense Department’s interpretation.

What Kagan did do was manage things so that her noncompliance with the Solomon Amendment didn’t trigger the loss of federal funds to Harvard.  But that’s not the same thing as following the law.

3.  Media Matters states that “[s]tudents still had access to military recruiters via the Harvard Law School Veterans Association,” but Media Matters hides from its foolishly trusting readers how inferior that access was.  As I have explained (in point 3 here)—and as Media Matters would know from one of the posts it links to in support of a separate point—the veterans association made clear that it had “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” and that the e-mail address that it could provide obviously “falls short of duplicating the excellent assistance provided” by the law school’s jobs office.  As I’ve put it, 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. 

4.  I have little interest in probing Kagan’s subjective attitude towards the military.  My basic charge is that—in a time of war, no less—she elevated her own ideological commitment to gay rights above what Congress, acting on the advice of military leaders, had determined best served the interests of national security.  Irrespective of her attitude toward the military, her commitment to gay rights was evidently stronger than her commitment to the law. 

* I say “terrorists” rather than “suspected terrorists” in this context because I’m aware of nothing to suggest that the law firms’ continued access to the law school’s jobs office turned on whether the individuals the law firms were representing were in fact terrorists or not.


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