May 27, 2010 | Commentary on Legal Issues, Rule of Law

Elena Kagan and the Military

As the dean of Harvard Law School, Elena Kagan opened her arms to big law firms hoping to recruit the newest crop of Ivy League lawyers searching for six-figure salaries. Harvard’s status as one of America’s best law schools made it a natural place to find top talent.

But for recruiters wearing military uniforms, Kagan had a starkly different message: You’re not welcome here. Even though the military’s JAG Corps relies on law school graduates for its ranks, Kagan mounted an unprecedented legal challenge to bar these recruiters from visiting the Cambridge campus.

The White House has tried to shrug off Kagan’s legal warfare on military recruiters as an insignificant blip during her Harvard tenure. Vice President Joe Biden even distorted the truth to justify Kagan’s position.

But the facts tell a different story. Biden tried to spin Kagan’s position as consistent with the law. But it’s quite clear that Kagan was determined to undermine the Pentagon’s plan to have military recruiters on campus when, shortly after setting foot on campus, she challenged the Solomon Amendment.

The issue has surfaced as one of the most significant events in Kagan’s career. Sen. Jeff Sessions (R-AL), ranking member on the Judiciary Committee, spoke at length about it Monday, saying Kagan is “scarred by her open mistreatment of the military and her disregard for a very clear law.” He promised to make it an issue during Kagan’s confirmation hearings in late June.

At issue is what Kagan did, and when, upon assuming the deanship at Harvard Law.

On May 11, Biden argued Kagan simply followed legal decisions and the actions of her predecessor.
“Let me put this quickly in perspective,” the vice president said. “For 20 years before she came there, military recruiters were not allowed on the campus in the same way other recruiters were.”

Biden continued: “Then we passed the law called the Solomon Amendment, before she got there, saying that, no, no, you had to let military recruiters on. You couldn’t do that. So military recruiters were on. Then, in fact, what happened was the 3rd Circuit Court of Appeals said Solomon Amendment was unconstitutional. She was then dean. She went back to the previous 20-year practice at Harvard, 20+ years. Then the Supreme Court said, ‘Nope, Solomon Amendment saying they have to be allowed on campus is correct.’ She immediately reinstated them.”

In reality, Kagan inherited a policy from former Dean Robert Clark that gave military recruiters full, unfettered access to campus. Clark reversed Harvard’s long-standing policy opposing military recruiters on July 29, 2002, because the U.S. Air Force threatened the university’s federal funding two months earlier.

Kagan took over as dean on July 1, 2003. Then on Jan. 12, 2004, she joined 53 other faculty members in signing an amicus brief seeking to restrict military recruiters. Biden conveniently forgot to mention that.

Even more significant is that the amicus brief addressed a case in the 3rd Circuit unrelated to Harvard. But Kagan, determined to undo Harvard’s policy, still joined forces with the faculty to challenge the Solomon Amendment.

As the dean of Harvard Law School, Elena Kagan opened her arms to big law firms hoping to recruit the newest crop of Ivy League lawyers searching for six-figure salaries. Harvard’s status as one of America’s best law schools made it a natural place to find top talent.

But for recruiters wearing military uniforms, Kagan had a starkly different message: You’re not welcome here. Even though the military’s JAG Corps relies on law school graduates for its ranks, Kagan mounted an unprecedented legal challenge to bar these recruiters from visiting the Cambridge campus.

The White House has tried to shrug off Kagan’s legal warfare on military recruiters as an insignificant blip during her Harvard tenure. Vice President Joe Biden even distorted the truth to justify Kagan’s position.

But the facts tell a different story. Biden tried to spin Kagan’s position as consistent with the law. But it’s quite clear that Kagan was determined to undermine the Pentagon’s plan to have military recruiters on campus when, shortly after setting foot on campus, she challenged the Solomon Amendment.

The issue has surfaced as one of the most significant events in Kagan’s career. Sen. Jeff Sessions (R-AL), ranking member on the Judiciary Committee, spoke at length about it Monday, saying Kagan is “scarred by her open mistreatment of the military and her disregard for a very clear law.” He promised to make it an issue during Kagan’s confirmation hearings in late June.

At issue is what Kagan did, and when, upon assuming the deanship at Harvard Law.

On May 11, Biden argued Kagan simply followed legal decisions and the actions of her predecessor.
“Let me put this quickly in perspective,” the vice president said. “For 20 years before she came there, military recruiters were not allowed on the campus in the same way other recruiters were.”

Biden continued: “Then we passed the law called the Solomon Amendment, before she got there, saying that, no, no, you had to let military recruiters on. You couldn’t do that. So military recruiters were on. Then, in fact, what happened was the 3rd Circuit Court of Appeals said Solomon Amendment was unconstitutional. She was then dean. She went back to the previous 20-year practice at Harvard, 20+ years. Then the Supreme Court said, ‘Nope, Solomon Amendment saying they have to be allowed on campus is correct.’ She immediately reinstated them.”

In reality, Kagan inherited a policy from former Dean Robert Clark that gave military recruiters full, unfettered access to campus. Clark reversed Harvard’s long-standing policy opposing military recruiters on July 29, 2002, because the U.S. Air Force threatened the university’s federal funding two months earlier.

Kagan took over as dean on July 1, 2003. Then on Jan. 12, 2004, she joined 53 other faculty members in signing an amicus brief seeking to restrict military recruiters. Biden conveniently forgot to mention that.

Even more significant is that the amicus brief addressed a case in the 3rd Circuit unrelated to Harvard. But Kagan, determined to undo Harvard’s policy, still joined forces with the faculty to challenge the Solomon Amendment.

On Nov. 29, 2004, the 3rd U.S. Circuit Court of Appeals ruled 2-1 that a district court in New Jersey should issue a preliminary injunction suspending enforcement of the Solomon Amendment. The appeals court didn’t address Kagan’s statutory argument and its decision didn’t even apply to Massachusetts (located in the 1st Circuit), but the very next day, Nov. 30, 2004, Kagan chose to reinstate Harvard’s ban on military recruiters.

Biden suggested otherwise, implying the 3rd Circuit had jurisdiction over Harvard. It did not. Biden also failed to mention that on Jan. 20, 2005, the 3rd Circuit refused to enforce its decision even for the New Jersey district in question, pending a decision from the U.S. Supreme Court. Kagan didn’t care. She kept Harvard’s ban in place.

Less than a month later, on Feb. 18, 2005, the Harvard Law School Veterans Association announced it would help students “investigate career opportunities” in the military. Kagan began to gradually shift her position. But even then, as the Veterans Association warned it couldn’t provide assistance on par with the career services office, Kagan played tough with the recruiters.

In fact, it wasn’t until the Sept. 20, 2005 — after the Pentagon threatened to halt the school’s federal funding if it continued to defy the law — that Kagan finally backed down. That wasn’t the last thing she had to say, however. The following day, on Sept. 21, 2005, with the case now before the Supreme Court, Kagan again filed an amicus brief with 39 colleagues from Harvard Law. The Supreme Court soundly rejected her argument, ruling 8-0 on March 6, 2006, to uphold the constitutionality of the Solomon Amendment.

“Ms. Kagan’s conduct may have been applauded by some in the progressive circles of academia, but the American people I think will be uneasy about it,” Sessions said.

Biden’s defense of Kagan also troubles Sessions. “I think it’s time we get these facts straight,” Sessions said of Biden’s remarks. “It is a significant matter, a very significant matter, and it is a matter of significance such that whoever comments about it, whether it’s the Vice President of the United States even, they should be accurate.”

With so little else to examine — Kagan has no judicial record and little experience as a lawyer — she needs to come clean on her treatment of military recruiters.

Robert Bluey directs the Center for Media and Public Policy at The Heritage Foundation.

About the Author

Robert B. Bluey Vice President, Publishing and Editor in Chief
The Daily Signal

First appeared in the New Ledger