By Walter Dellinger
Friday, May 14, 2010; A15
The nomination of an anti-military leftist to the Supreme Court would make for a riveting story. But in the case of Elena Kagan, it's just not true.
When Kagan became dean of Harvard Law School in 2003, Harvard, like virtually every other law school, had a long-standing policy that the assistance of its placement office was available only to employers that would interview and consider hiring any student. Employers that insisted on "pre-screening" students for high grades or other criteria were not eligible for the school's placement assistance, nor were recruiters who declined to hire students on the basis of race, sex, religion or sexual orientation. The placement office, in other words, is there to serve the career aspirations of all students.
Under Kagan's predecessor at Harvard, the highly respected corporate scholar Robert C. Clark, military recruiters acknowledged that they were not able to comply with the school's generally applicable anti-discrimination policy and could not use the placement office's services. In 2002, the Bush administration asserted that a federal provision called the Solomon Amendment required the law school to grant military recruiters an exemption from its anti-discrimination policy. Faced with a threatened cutoff of federal funds to the whole university, Clark announced that the placement office would begin assisting military recruiters. When Kagan became dean in 2003, she continued this practice.
In November 2003, the U.S. Court of Appeals for the 3rd Circuit held that the Solomon Amendment was unconstitutional, which meant there was no longer an enforceable, federally mandated exception to the law school's anti-discrimination policy. Kagan announced that military recruiters were once again ineligible for assistance from the school's placement office. In the fall of 2004, after the Justice Department challenged the 3rd Circuit decision and the Supreme Court agreed to review the lower court's ruling, Kagan announced that the school would once again comply with the government's demand for placement-office support for military recruiters.
On the basis of this unremarkable application of an established anti-discrimination policy, Kagan has been accused of harboring an "anti-military" animus. Some critics have falsely equated Harvard's anti-discrimination policy with the anti-military and anti-ROTC policies favored by some campus leftists in the 1970s. Those policies, however, were categorically different: They were directed at the military. In contrast, the anti-discrimination policies applied before, during and after Kagan's tenure as dean were in no way intended to single out the military but were applied in an evenhanded way to all prospective employers.
It was also far from clear that Harvard even violated the Solomon Amendment. That law withheld federal funding from any school that has a policy of denying military recruiters access to the campus "in a manner equal in quality and scope" to other recruiters. Neither the text of the law nor its history (targeting anti-ROTC and anti-military rules) compelled the conclusion that the law was violated by an anti-discrimination policy applicable to all recruiters.
When some groups challenged the constitutionality of the Solomon Amendment, Kagan joined a majority of her faculty colleagues in a friend-of-the-court brief that I drafted as their counsel, urging the court to exercise judicial restraint and avoid ruling on the constitutional issue by simply holding that it was not clear that Congress intended to preclude the evenhanded application of anti-discrimination policies. There were no dissents from the chief justice's opinion dismissing this statutory argument. We knew that it would be a difficult sell for the court because the actual party to the case wanted to seek a constitutional ruling, a course we thought imprudent and unwise. As the oral argument showed, a number of justices thought the Harvard brief raised a very serious question. For today's debate, the key point about the brief that Kagan joined is that it urged a prudent course, arguing that "sound principles of judicial restraint counsel that this Court should resolve the question of statutory coverage before turning, only if necessary, to constitutionality."
No action Kagan took as dean remotely suggests anything but the greatest respect for the military. Even when the law school's anti-discrimination policy effectively precluded placement-office assistance to military recruiters, she permitted student veteran groups to use law-school premises to facilitate military recruitment of Harvard students. At no point were military recruiters ever barred from the campus or banned from recruiting Harvard law students. And military veterans who entered Harvard Law School when Kagan was dean have praised her efforts to ensure they were welcomed and respected for their service.
Separately, it is true that as dean, Kagan expressed strong personal opposition to the "don't ask, don't tell" restrictions on service by gays and lesbians in the military. But that is not an anti-military position. Rather, it is the position now shared by many senior military leaders and the commander in chief.
The writer, a partner at O'Melveny & Myers, was head of the Office of Legal Counsel in the Clinton administration.