Bench Memos

Washington Post Article on Kagan and Solomon Amendment—Part 2

As promised in my Part 1 post, let me explain why I find today’s Washington Post article—“Kagan pursued two paths on ‘don’t ask’ at Harvard”—far more damning of Kagan and her defenders than of Kagan’s critics:

1.  Here’s the article’s primary narrative:  “Kagan was pursuing two courses at once: While staking out a tough stance against the recruiting, because of the military’s ban on gay men and lesbians serving openly, she simultaneously maneuvered to facilitate it behind the scenes.” 

In other words, as I’ve expressly assumed to be the case (see, e.g., point 2 here) Kagan wasn’t acting on the basis of a subjective animus against the military.  Rather, just as I’ve contended, she evidently didn’t believe her own extremist rhetoric about Don’t Ask, Don’t Tell— “a profound wrong—a moral injustice of the first order”—and was instead engaging in cheap moral posturing.

Cheap to her, that is.  Symbols matter.  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.  That symbolic message from a dean of one of the nation’s leading law schools isn’t trivial, and I agree with Peter Beinart, the liberal former editor of the New Republic, that it amounted, as an objective matter, to “a statement of national estrangement,” of Kagan’s “alienating [her]self from the country.” 

2.  Kagan’s defenders (see point 3 here) have sought to obscure how inferior the treatment of military recruiters was when Kagan booted them out of the law school’s jobs office.  Consistent with my account, here’s what the Post’s article states about the role of the student veterans association:

In the end, the club decided its members would welcome questions from students considering military careers but would not do more. “We took the request in good faith and, at the end of the day, thought, ‘Hey, the military has its own recruiters,’ ” the former leader said.

The article does assert that “Kagan’s decision [to boot military recruiters from the jobs office] had no impact on the number of people entering the military”:  

In that spring of 2005, five graduates joined, more than any other year of the decade, according to Mark Weber, assistant dean for career services.

Set aside the fact that it’s impossible to know whether more graduates would have joined the military if Kagan hadn’t kicked the recruiters out of the jobs office.  The more relevant question is whether more graduates would have joined the military if Kagan also hadn’t engaged in her strident and extremist rhetoric against Don’t Ask, Don’t Tell.  It’s of course impossible to say for certain, but do you think that any law firms recruiting on campus would think that their recruiting efforts were unimpaired if Kagan had vociferously condemned them for engaging in “a profound wrong—a moral injustice of the first order”? 

It’s also not usually the case that we excuse wrongful and illegal conduct on the ground that it might not have had any material effect.  We wouldn’t rush to say, for example, of a company that engaged in racial discrimination in hiring during one year:  “The racial discrimination had no impact on the number of racial minorities that joined the company, as the number was higher than for any other year.”

3.  The article reveals that Kagan may have been the only [update:  or perhaps the article means the first?] law school dean who used the Third Circuit’s ruling as an excuse to discriminate against military recruiters (for background, see my point 2 here):

Boston College law professor Kent Greenfield, who founded the law school coalition, which ultimately lost its case at the Supreme Court, said he thinks that Harvard was the only school that stopped welcoming recruiters right after the 3rd Circuit ruling, although no one kept complete track.

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