CNN is reporting that tonight, during an interview on John King USA, Defense Secretary Robert Gates will reiterate his support for repealing the military’s Don’t Ask, Don’t Tell policy (DADT) and argue that lawmakers should wait for the Pentagon to complete its review before rescinding the policy. Gates has expressed a similar sentiment in a letter to House Armed Services Committee Chairman Ike Skelton (D-MO), and his tone has drastically chilled any chance of ending the policy before the end of the year. But during tonight’s interview, he will go one step further, suggesting that a quick repeal would be “a stupid way to do change”:

“I know there’s some that are suspicious out there that this is some kind of effort to slow roll this process,” Gates says in an interview set to air Monday on CNN’s John King, USA. “But as I said in that testimony, I’ve led several huge public institutions and I’ve led change in every one of them and there’s a smart way to do change, and there’s a stupid way to do change. This one has to be done smartly.

“And I think it’s only fair as we get ready to make this change that we give our force the opportunity to tell us how they feel about it, for us to find out their concerns, for us to identify the challenges we’re going to face if Congress does change the law, and how we will go about doing that, and how we will mitigate negative consequences by what we hear from the force. And so I’ve said this is not about whether, but about how, and that continues to be our position.”

Legislating a change to the policy before the military’s review was done “would send a very negative signal to men and women in uniform that their views on this and how it should be done, don’t matter,” Gates added.

Of course the real world experiences of our allies — all whom have acted swiftly to allow gay and lesbian service members to serve openly — suggests that the opposite is true; acting quickly is “a smart way to do change.” As Larry Korb details in a new memo, “Our allies’ experiences repealing similar bans, as well as our own experience in implementing “Don’t Ask, Don’t Tell,” suggest that a drawn-out process is unnecessary and that the military’s recommendations do not need to be completed before Congress exercises its legal authority to overturn the law”:

Three of the United States’ closest allies—Israel, Canada, and the United Kingdom—have successfully removed all restrictions on gays and lesbians in their armed forces since the early 1990s. All three countries made quick, successful transitions to policies of open service…Contrary to what Gates and Mullen set forth in their letter, our allies’ experiences suggest that repeal will be a straightforward process and that a swift policy reversal sends the appropriate signal that both uniformed and civilian military leaders are on board with the decision.

Moreover, Gates’ frame for repeal presents a false choice. He’s suggesting that Congress can either repeal the policy recklessly, without consulting the military, or wait until the Pentagon reviews how best to implement a new nondiscrimination policy before proceeding. But there is a third option: delayed implementation. Sen. Joe Lieberman (I-CT) has already proposed legislation that lays out a timeline for repeal and sets benchmarks for the Pentagon’s ongoing review. This kind of model places Congress and the Pentagon on two separate tracks — Congress passes legislation to repeal the policy, but the repeal isn’t fully carried out until the military is ready to act.

In fact, when “the United States adopted ‘Don’t Ask, Don’t Tell’ in October of 1993, the Pentagon had not yet issued “final rules on how to implement the policy until December. And DOD was still making adjustments to the implementation policy in early 1994.” In that instance, the Department of Defense had ample opportunity to issue new guidelines even after Congress acted, but by Gates’ standard, the government acted in “a stupid way.”

Republicans have responded to Elena Kagan’s nomination to the Supreme Court with a mix of caution and concern. While pledging to conduct a fair and honest hearing, the party has said that the nominee will need to “demonstrate that she is committed to upholding the vision of our Founding Fathers, who wrote a Constitution meant to limit the power of government, not expand it.” To ensure that Kagan is “dedicated to applying the law equally and impartially to all, not promoting a particular ideological agenda or legislating from the bench,” the GOP has promised to “thoughtfully examine Kagan’s qualifications and legal philosophy before she is confirmed to a lifetime appointment.” Kagan’s views on health care reform and federal mandates are of particular interest to the GOP:

- SEN. JOHN BARRASSO (R-WY): “The other issue is the health care bill that’s come out — there’s a mandate everybody in the country has to buy a product. That’s a 10th amendment issue… she is going to have to make a decision if she’s on the court about how that goes forward with these 20 states suing.” [TP, 5/10/2010]

- REP. JOHN BOEHNER (R-OH): “On this, and other issues – including the Constitutional questions arising from Washington Democrats’ new health care law – Solicitor General Kagan deserves a fair hearing on her qualifications, and her commitment to fairness, the rule of law, and interpreting the Constitution as written.” [GOPLeader, 5/10/2010]

- GOP.COM: A research document published by the GOP asks, “Where Does Kagan Stand As Health Care Overhaul Faces Variety Of Legal Challenges?” [GOP, 5/10/2010]

But the GOP can’t ask Kagan to be both a constitutional originalist and an opponent of the new health care law. In fact, given the long-standing Supreme Court precedent surrounding the federal government’s ability to regulate interstate commerce, should Kagan agree with Republicans’ claims that the lawsuits violate the 10th amendment, she would be seen as a judicial activist.

The Supreme Court affirmed this precedent as recently as 2005. In Gonzales v. Raich, Justice Anthony Scalia “joined a 6-3 ruling that said Congress could regulate marijuana that was neither bought nor sold on the market but rather grown at home legally for sick patients.” “The regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself ‘substantially affect interstate commerce,” Scalia wrote. “Moreover, as the passage from Lopez quoted above suggests, Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce.”

Therefore, if Kagan were to support the frivolous health care lawsuits, she wouldn’t just be breaking years of Supreme Court precedent. She would also be committing the conservative’s cardinal sin of disagreeing with Scalia.

Moments ago, Sen. Jeff Sessions (R-AL), the ranking Republican on the Judiciary Committee, appeared on CNN to express his doubts about the nomination of Solicitor General Elena Kagan to fill the vacancy on the Supreme Court created by the retirement of Justice John Paul Stevens. Pressed by the anchor to explain what he finds so “troubling” in her record, Sessions misrepresented her opposition to the Solomon amendment — the measure which cuts off federal funding to colleges that don’t allow the military to recruit on their campuses — to portray her as an activist justice. Sessions presented Kagan as unilaterally opponent of the DADT policy and suggested that Kagan personally barred military recruiters from campus:

SESSIONS: The thing I was personally involved with was the Solomon Amendment. What happened was a number of law schools, Harvard being, I think, a leader when she was there, would not allow the military recruiters to come on to the law school to recruit jag officers for the military because she didn’t agree with the ‘Don’t ask, Don’t Tell’ policy that president Clinton had adopted. They just wouldn’t let them come on campus. We had 1,000 soldiers killed defending free speech and the right of Harvard to exist in freedom during that period of time. So I think that would be something that would be asked [...] she felt this was discriminatory, but it was the established policy of the United States, President Clinton’s policy and she could work to change that, but I don’t think it was acceptable. I do not believe it was acceptable for her to say you can’t even come on our campus because I disagree with your policy.

Watch it:

In reality, when Kagan became Dean of Harvard Law School in 2003, she maintained existing Harvard policy, which had already carved out a special exception for the military from the University’s 1979 nondiscrimination policy. That policy required “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,” but Harvard made an exception for military recruiters in 2002 (it allowed recruiters to operate from an alumni operation before then) to protect its stream of federal funding. Kagan, along with half of Harvard’s legal faculty, signed an amicus brief in support of overturning the amendment and “in November 2004, a divided panel of the Third Circuit” ruled in their favor. Kagan “reinstated Harvard Law School’s original nondiscrimination policy,” only to rescind the prohibition after the Supreme Court upheld the Solomon amendment.

Far from leading the charge against Solomon in the courts, moreover, Kagan argued that “the case should be resolved on statutory grounds,” rather than through a constitutional challenge. Her attempts to overturn the policy may have been driven by her opposition to DADT, but they were also supported by the University’s long-standing nondiscrimination policy.

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.