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Elena Kagan is a pragmatic moderate because she only briefly obstructed the work of military recruiters at Harvard Law School in defiance of the law.
Or so her defenders maintain. They want to make a blot on her record into a qualification for the court, a sign of her judiciousness and common sense. Rather than embrace this argument, Kagan would be better served by apologizing for her participation in Harvard’s indefensible discrimination against the military at a time of war.
Beginning in the late 1970s, Harvard Law School banned military recruiters from its Office of Career Services. The policy was in keeping with the anti-military ethos of Harvard, which has long excluded ROTC, although the school justified it on anti-discrimination grounds — gays couldn’t serve in the military.
In the mid-1990s, Congress did two things. It passed the law that became “Don’t Ask, Don’t Tell,” the policy forbidding openly gay people from serving in the military. And it passed the Solomon Amendment, denying federal funds to schools that bar military recruiters. Harvard Law loosened up in response, allowing military recruiters on campus through the good offices of the Harvard Law School Veterans Association.
Initially, the military approved of the arrangement. In 2002, though, it told Harvard Law School that it would have to allow full, equal access, or Harvard would lose its federal funds. Deciding that keeping hundreds of millions of dollars was the better part of valor, the school backed down. It gave the military access to the Office of Career Services like every other recruiter.
This is the status quo that Elena Kagan inherited when she became dean in 2003 — and assiduously worked to overturn. She blasted “Don’t Ask, Don’t Tell” as “a moral injustice of the first order.” That would presumably put it on par with the worst crimes in world history.
When the Third Circuit Court of Appeals said in 2004 that the Solomon Amendment was “reasonably likely” to be unconstitutional, Kagan immediately used it as an excuse to reinstate strictures on military recruiters — never mind that Harvard isn’t in the Third Circuit, or that the court blocked its own ruling from taking effect.
When the military again threatened to cut off Harvard’s funds, Kagan backed off, an implicit admission that she was on shaky ground. In 2006, the Supreme Court upheld the Solomon Amendment and rejected an argument against it in an amicus brief from Kagan by a stinging 8–0 margin.
Rather than admitting that this was not Kagan’s finest moment, her defenders positively tout it. Vice President Joe Biden says she was right to disadvantage military recruiters, even though he himself voted for “Don’t Ask, Don’t Tell.” On ABC News, Biden said that after the Supreme Court decision, “she immediately reinstated” recruiters. This bowdlerizes the record to suggest that Kagan was scrupulously following the law, when she acted in defiance of it until called on it by the military.
If Harvard really found “Don’t Ask, Don’t Tell” as offensive as Kagan said, it could have rejected all federal funds, or at least any defense-related funds, in protest. It was Congress, after all, that passed the law. Instead, Harvard was happy to disassociate itself from the military that pays the ultimate price to defend us, so long as it had to pay no price for its self-regarding moral pose.
It is foolish of Democrats to import the mores of Harvard Yard into the national political debate by defending Kagan’s stance; what’s admirably levelheaded and cautious in the context of Cambridge is bizarre to most of the country.
Republicans have attacked Kagan as “anti-military.” No one can know her true motives. She may have genuinely been outraged by “Don’t Ask, Don’t Tell” despite a high esteem for the military, or she may have appeased the Harvard mob out of sheer careerism. If the latter motive still drives her, she should express her regret for the whole sorry business and change the subject as quickly as possible.
– Rich Lowry is editor of National Review. © 2010 by King Features Syndicate.