This morning, President Obama nominated Solicitor General Elena Kagan to the position of Associate Justice on the Supreme Court, the fifth woman to ever be officially nominated for the position. If confirmed, Kagan — a former legal adviser on domestic policy in the Clinton Administration and former Dean of Harvard Law School — will be the youngest Supreme Court Justice replacing its oldest member, Justice John Paul Stevens.
While the administration anticipates a relatively smooth confirmation process — after all, Kagan was recently confirmed for Solicitor General by a vote of 61-31, attracting the support of seven Republicans — conservative critics will focus on her strong opposition to the military’s Don’t Ask, Don’t Tell policy during her tenure as dean. The American Family Association and Focus on the Family have criticized “Ms. Kagan’s extreme rhetoric,” warning conservative Senators that it’s “highly likely that she also favors same-sex marriage, both as a matter of policy and as a supposed federal constitutional right.” Immediately following the White House’s announcement of Kegan’s nomination, the RNC issued a statement, questioning her “opposition to allowing military recruiters access to her law school’s campus” and signaling that conservatives will interpret Kagan’s view of the policy as constitutionality unsound and an affront to military values. “Her support for the homosexual agenda is so strong that it clouds her ability to think impartially on the subject,” one conservative blogger wrote.
The genesis of these attacks rests in Harvard’s nondiscrimination policy — first adopted in 1979 — which requires “any employer using the Office of Career Services for recruiting to sign a statement indicating that it did not discriminate on the basis of sexual orientation or certain other criteria; pursuant to that policy, the law school banned military recruiters from using the Office of Career Services” but allowed the military to recruit from the HLS Veterans Association.
In 1996, however, Congress passed what is known as the Solomon Amendment, denying “federal funding to any university that did not allow military recruiters access to its campus.” The issue came to a head in 2002, when the Defense Department “stiffened the Solomon Amendment, threatening to cut off funding if any part of a school barred military recruiters.” Harvard responded by making an exception for the military and when Kagan became dean in 2003, she “joined fifty-three other faculty members in signing an amicus brief” in support of overturning the amendment. “In November 2004, a divided panel of the Third Circuit” ruled in their favor and Kagan “reinstated Harvard Law School’s original nondiscrimination policy. The Supreme Court disagreed however and upheld the Solomon amendment. When the federal government threatened “to withhold all federal aid from Harvard,” Kagan rescinded the prohibition.
Here is how she explained the predicament during her confirmation hearings for Solicitor General:
KAGAN: As dean of Harvard Law School, I felt a responsibility to apply and defend the School’s longstanding nondiscrimination policy, which prohibits our Office of Career Services from assisting any organization (not just the military) that discriminates in employment. At the same time, I worked to ensure that military recruiters in fact had available an alternative and effective method of access to our students. My statements and actions defending the Law School’s general nondiscrimination policy did not sweep more broadly. The position I took does not entail a view on the exclusion of ROTC from college campuses, and I never expressed a position on the exclusion of ROTC from Harvard.
Indeed, Kagan expressed her strong opposition to the policy — “I believe the military’s discriminatory employment policy is deeply wrong – both unwise and unjust,” she wrote in an email to students — but eventually deferred to the Supreme Court.
Significantly, Kagan’s opposition to the DADT policy echoes the words Joint Chiefs of Staff Chairman Admiral Mike Mullen, who also sees the policy as incongruous with the military’s mission and values. “We have in place a policy that forces young men and women to lie about who they are in order to defend their fellow citizens,” Mullen told Congress earlier this year. “For me, personally, it comes down to integrity: Theirs as an individual, ours as an institution.”
Kagan seems to agree. “The importance of the military to our society – and the great service that members of the military provide to all the rest of us – heightens, rather than excuses, this inequity,” Kagan wrote. “The Law School remains firmly committed to the principle of equal opportunity for all persons, without regard to sexual orientation. And I look forward to the time when all our students can pursue any career path they desire, including the path of devoting their professional lives to the defense of their country.” As a justice on the court, Kagan can help ensure that this happens sooner rather than later.