Elena Kagan’s sparse writings and cautious statements during a 24-year legal career provide little ammunition for opponents of her Supreme Court nomination. But potential foes are zeroing in on her short-lived ban on military recruiting at one of the nation’s elite law schools.
As dean of Harvard Law School in 2004, Kagan, like leaders of other major law schools, kicked out Pentagon recruiters because of the “don’t ask, don’t tell” law that bars openly gay and lesbian members of the armed forces.
Kagan reversed course when the federal government threatened to withdraw funding from Harvard, but apologized to students and called the military policy “unwise and unjust.”
Kagan’s stance as dean, and her support for a subsequent legal challenge to the funding cutoff, quickly became a focus of conservative criticism Monday when President Barack Obama nominated his one-time University of Chicago faculty colleague — now the government’s top litigator as U.S. solicitor general — to the Supreme Court.
The Senate must closely scrutinize Kagan’s decision to “personally and aggressively restrict the U.S. military’s ability to recruit some of the brightest law students in the country,” said Sen. Jeff Sessions of Alabama, ranking Republican on the Senate Judiciary Committee, which will consider the nomination.
Conservative commentator Curt Levey said Kagan’s view that the government funding cutoff would be illegal positioned her “to the left of even the (Supreme) Court’s most liberal justices on the issue of gay rights and the First Amendment.”
Republicans briefly raised the issue last year after Obama nominated Kagan as the Justice Department’s solicitor general, but did not try to block her confirmation. The stakes are higher, however, for a Supreme Court confirmation.
The dispute involved two laws: the 1993 “don’t ask, don’t tell” statute, which excludes openly gay or lesbian service members, and the 1996 Solomon Amendment, which barred federal funding to any institution that denied equal access to military recruiters.
The amendment was seldom enforced until 2001, when the Bush administration threatened to cut off funds to any college whose law school restricted military recruitment.
Harvard, which stood to lose $328 million in federal aid, opened its doors to armed-forces recruiters the following year. It had previously barred them under a 1979 university policy denying access to employers who discriminated based on sexual orientation. The Association of American Law Schools adopted a similar policy in 1990.
Kagan became dean in 2003, and at first maintained military recruiters’ access to the law school. But she barred them after a federal appeals court declared in 2004 that the Solomon Amendment appeared to violate law schools’ freedom of speech by forcing them to spread an anti-gay message they opposed.
The Bush administration appealed to the Supreme Court while renewing its warning of a funding cutoff. Kagan, whose school was not involved in the court case, re-admitted military recruiters before the high court issued a ruling, an action she told Harvard students she regretted.
“I believe the military’s discriminatory employment policy is deeply wrong — both unwise and unjust,” she said in a message to the student body. “And this wrong tears at the fabric of our own community by denying an opportunity to some of our students that others of our students have.”
Kagan and other law-school professors signed a brief urging the Supreme Court to overturn the Solomon Amendment’s funding ban, but the court unanimously upheld the law in March 2006. Military recruiters don’t impose their message on law schools, which remain free to criticize government policy, Chief Justice John Roberts said in the court ruling.
Kagan has taken pains since then to stress her support for the armed forces while opposing its policy on gays and lesbians. In a recent speech at West Point, she expressed awe at the cadets’ courage and dedication while lamenting the continuing conflict between the military and law schools.
Meanwhile, the Justice Department is defending “don’t ask, don’t tell” in a federal court in Riverside, Calif., despite Obama’s opposition to the policy.
Kagan — who promised senators last year to defend the law if it was challenged — does not handle lower-court proceedings such as the Riverside case. But it is likely to come up at her confirmation hearing.
Mindful of the sensitivity of the military issue, the Obama administration dispatched Ron Klain, Vice President Joe Biden’s chief of staff, to defend Kagan on Monday.
Any suggestion that Kagan is anti-military, Klain told McClatchy News Service, is “ridiculous and absurd.”
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