Elena Kagan: No Friend of the Military



Peter Wehner


Elena Kagan may be a brilliant constitutional scholar and first-rate legal mind — but if she is, she has done a mighty fine job of hiding her intellectual light under a bushel. She has left almost no paper trail and has made no significant, or even particularly notable, contributions to our understanding of law, legal theory, or the Constitution. She appears to have been a bright, able, and well-liked dean of Harvard Law School. But President Obama’s claim that “Elena is widely regarded as one of the nation’s foremost legal minds” is – let’s be generous here – quite an overstatement.

There is, however, one issue on which Kagan has planted her flag. As dean, Kagan created roadblocks for the military in its effort to recruit on Harvard’s campus because of the policy to keep opening gay people from serving in the military.

“I abhor the military’s discriminatory recruitment policy,” Kagan wrote in 2003. It is a “profound wrong — a moral injustice of the first order.” She went on to say that, “I believe the military’s discriminatory employment policy is deeply wrong — both unwise and unjust.”

These are hardly the words of an individual who has shown an “openness to a broad array of viewpoints,” who has demonstrated “fair-mindedness,” or who has the habit of “understanding before disagreeing,” which is how Obama describes Kagan. One may believe (as I now do) that it is right to repeal Don’t Ask, Don’t Tell while still acknowledging the arguments that led the military to embrace the policy.

In any event, Kagan followed through on her beliefs. As dean of Harvard Law School, she signed her name to an amicus brief in support of a lawsuit challenging the 1996 Solomon Amendment, which bans federal funding to universities that refuse to allow military recruiters on campus. The constitutional and statutory arguments made by Kagan and others were unanimously rejected by the Supreme Court.

On this matter, and on this matter alone, Kagan decided to play the role of political activist. And the notion that Kagan basically followed a strategy toward military recruiting that was already in place is simply wrong. In 2004, Kagan reinstated Harvard’s prior policy banning the military from using the main career office while permitting access through the student veterans group.

As my Ethics and Public Policy Center colleague Ed Whelan puts it,

“it appears that Kagan’s decision to bar military recruiters from using the law school job’s office was, in practice, the substantial equivalent of kicking them off the campus altogether. By rough analogy: Kagan didn’t even permit military recruiters on the back of the bus; rather, she told them to go hitch a ride.”

It’s revealing, is it not, that Kagan directed all of her wrath at the military rather than the Clinton administration, where she worked as both associate counsel to Bill Clinton and then as deputy assistant to the president for domestic policy; or Congress, which after all were responsible for passing and signing into law the Solomon Amendment.

It’s certainly true that both President Clinton and Congress were reflecting the views and preferences of the military. Still, the executive and legislative branches were the action-forcing bodies when it came to passing a policy Kagan characterized in extraordinarily harsh language — yet she uttered nary a word of condemnation against either of them. It was the military, and only the military, that was the object of her furious assault.

One can draw some reasonable inferences from this fact.

Peter Beinart, the former editor of the liberal New Republic magazine, drew this conclusion from Kagan’s actions:

“If Solicitor General Elena Kagan gets the nod, conservatives will beat the hell out of her for opposing military recruitment on campus when she was dean of Harvard Law School. And liberals should concede the point; the conservatives will be right.”

The United States military is not Procter & Gamble. It is not just another employer. It is the institution whose members risk their lives to protect the country. You can disagree with the policies of the American military; you can even hate them, but you can’t alienate yourself from the institution without, in a certain sense, alienating yourself from the country. Barring the military from campus is a bit like barring the president or even the flag. It’s more than a statement of criticism; it’s a statement of national estrangement.

What was really on display in Harvard Law School v. Military Recruiters was the clash of two institutions: the academy, where Kagan has spent most of her adult life (Princeton University, the University of Chicago, and Harvard Law School); and the United States armed services.

Dean Kagan was mirroring the ethos of the institution she represented and that appears to have profoundly shaped her views and sensibilities. And among the characteristics of America’s universities in general, and its Ivy League schools in particular, the military is not particularly well regarded or particularly well treated.

It is ironic that President Obama, who argues that a “keen understanding of how the law affects the daily lives of the American people” is an important qualification for a Supreme Court justice, would nominate someone who looks down on the public institution the American people most look up to: the military. (I don’t find persuasive the claim by Kagan supporters that she hates the sins of the military but loves the sinner, given that her rhetorical attacks were isolated on the armed services rather than on politicians whose support she might eventually need. And I rather doubt the military felt the soothing, warm embrace of Dean Kagan, either.)

As between Harvard and the Army, as between Princeton and the Marines, most of the public, I think, will side with the latter. They comprise, after all, an institution that merits our esteem. The military is open to new thinking and encourages debating different ideas. It believes in performance and accountability. It foregoes moral preening. It has by and large created racial harmony within its ranks by not obsessing on racial differences. And while acknowledging that our country is far from perfect, they have veneration for America and its achievements.

The contrast between the military and some of our elite universities therefore could hardly be more dramatic. Mr. Obama has nominated for the Supreme Court a person who sided with the latter against the former.

Welcome to Elena Kagan’s America.

Thanks to David, down in the swamps of Florida, for this one.


One Response

  1. Kagan Should Not Be Confirmed

    Being a graduate from an Ivy League school is not a negative. The negative is that the Supreme Court is losing Educational Diversity amongst its members. A very simple example could be vanilla ice cream. Everyone likes vanilla ice cream. The problem arises when you limit your diet exclusively to vanilla ice cream. You get lots of calcium, but you lose out on all of the other needed vitamins and minerals to live a healthy productive life. The same can be said about losing the diversity of knowledge and diverse perspectives that people from other institutions can provide. The majority of the Supreme Court Judges should not be Ivy League graduates.

    I am of the opinion that Supreme Court decisions may be considered biased, due to their common Ivy League education, and they are engaging in discrimination, by limiting the Court to Ivy League Graduates.

    The following applies to Kagan, just as it did to Sotomajor.

    This editorial was created by 160 Associated Press readers under a Creative Commons Share-Alike Attribution License 3.0 using MixedInk’s collaborative writing tool. For more about how it was created, see here. It can be republished only if accompanied by this note.

    Obamas Appointment of Sotomayor Fails to Offer Educational Diversity to Court.

    Sotomayor does not offer true diversity to our Supreme Court. The potential power of Sotomayor’s diversity as a Latina Woman, from a disadvantaged background, loses its strength because her Yale Law degree does not offer educational diversity to the current mix of sitting Judges. Once she walked through the Gates of Princeton and then Yale Law School she became educated by the same Professors that have educated the majority of our current Supreme Court Justices, and our Presidents.

    Diversity in education is extremely important. We need to look for diversity in our ideas, and if our leaders are from the same educational background, they lose the original power of their ethnic and gender diversity. The ethnic and gender diversity many of our current leaders possess no longer brings a plethora of new ideas, only the same perspective they learned from their common Ivy League education. One example of the common education problem is that Yale has been heavily influenced by a former lecturer at Yale, Judge Frank, who developed the philosophy of Legal Realism. Frank argued that Judges should not only look at the original intent of the Constitution, but they should also bring in outside influences, including their own experiences in order to determine the law. This negative interpretation has influenced both Conservatives and Liberals graduating from Yale. It has been said that Legal Realism has infested Yale Law School and turned lawyers into political activists.

    A generation of appointees with either a Harvard or Yale background, has the potential to distort the proper interpretation of our Constitution. America needs to decentralize the power structure away from the Ivy League educated individual and gain from the knowledgeable and diverse perspectives that people from other institutions can provide. We should appoint Supreme Court Justices educated from amongst a wider group of Americas Universities.

    Harvard –

    Chief Justice John Roberts
    Anthony Kennedy
    Antonin Scalia
    Stephen Breyer
    Ruth Bader Ginsburg (Harvard, Columbia)


    Samuel Alito – Yale JD 1975
    David Souter
    Clarence Thomas – Yale JD 1974
    Sonia Sotomayor – Yale JD 1979

    Northwestern Law School.

    Justice John Paul Stevens

    The Presidents we have elected for the last twenty years, have themselves been Harvard or Yale educated. This has the potential to create an even more closed minded interpretation of our laws.

    Yale – Bush Sr. – 4 years
    Yale Law – Clinton – 8 years
    Yale – Bush, Jr. – 8 Years
    Harvard Law – Obama – 4 – 8 years

    When we consider that our Nation has potentially twenty – eight years of Presidential influence from these two Universities, as Americans, we should look long and hard at the influence Yale and Harvard have exerted on our nation’s policies. Barack Obama promised America Change, but he has continued the same discriminatory policy by appointing a Yale graduate over many qualified candidates that graduated from other top Colleges and Universities in America.

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