Bench Memos

Kagan and DADT

Pres. Barack Obama has chosen to replace the only military veteran on the Supreme Court with extensive wartime experience* with a nominee whose only significant record indicates hostility and opposition to laws protecting the culture and best interests of the American military. Senators considering this nomination should question the flawed logic and anti-military attitude that Elena Kagan expressed by signing an amicus brief challenging the Solomon Amendment in the 2006 case Rumsfeld v. Fair.

In addition, Elena Kagan’s record as solicitor general should be considered a serious problem. In her current capacity, Kagan failed to appeal the problematic procedural ruling of the Ninth Circuit Court of Appeals in a case challenging the 1993 law stating that homosexuals are not eligible for military service (Witt v. Department of the Air Force).

As reported by Ed Whelan in Bench Memos on May 19, 2009, Kagan’s irresponsible failure to appeal the Ninth Circuit’s rogue ruling in the Witt case contradicted assurances she had given to Sen. Jeff Sessions (R., Ala.) in a post-confirmation hearing letter to Sen. Arlen Specter (then-R., Pa.) dated March 18, 2009. Her decision will impose additional burdens on Department of Justice lawyers defending the 1993 law, requiring them to show that the presence in the Air Force of former nurse Margaret Witt had been detrimental to unit cohesion and combat effectiveness.

Contrary to most news reports and commentaries, there is no “Don’t Ask, Don’t Tell” (DADT) law. Legislative history indicates that members of Congress considered then-president Bill Clinton’s DADT proposal, but realized that it was indefensible in federal court. Instead, they voted for the current law (Section 654, Title 10, U.S.C.), which states that homosexuals are not eligible to serve in the military. The Clinton administration imposed the DADT policy on the military anyway, with administrative regulations announced on December 23, 1993. Differences between the 1993 law and the administrative policy DADT have contributed to confusion ever since.

* Justice Alito has ROTC background and served on active duty (U.S. Army Signal Corps) for a few months, but spent most of his time in the military as a member of the inactive Reserve. Justice Kennedy served in the California National Guard in 1961. Unlike the others, Justice Stevens served on active duty in a time of war — as a Navy cryptologist in the Pacific, 1941-1945. He may be a liberal, but he declared in an interview that the Supreme Court would benefit from a member with military experience. This is an excerpt from an interview with Jeffrey Toobin in the New Yorker:

Veterans of the Second World War dominated American public life for decades, but Stevens is practically the last one still holding a position of prominence. He is the only veteran of any kind on the Court. (Kennedy served briefly in the National Guard; Thomas received a student deferment and later failed a medical test during Vietnam.) “Somebody was saying that there ought to be at least one person on the Court who had military experience,” Stevens told me. “I sort of feel that it is important. I have to confess that.”

Elaine Donnelly is president of the Center for Military Readiness.