How Elena Kagan worked to limit military recruiting at Harvard
Elena Kagan, Supreme Court nominee, said she 'abhorred' the Pentagon's 'don't ask, don't tell' policy banning gays from serving openly. In her confirmation hearings, critics will focus on her efforts to limit military recruiting at Harvard.
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“Ms. Kagan denied military recruiters access even though the law still required access,” Sen. Orrin Hatch said in a speech on the Senate floor. “She could have opposed the military’s policy in various ways, but chose to do so in a way that undermined military recruitment during wartime.”Skip to next paragraph
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Kagan’s quick reversal of the school’s military recruiting policy raises a question among her critics. Why did she move so fast to repeal the policy rather than wait for the outcome of the appeal? they ask.
Was it her best legal judgment that the Third Circuit was so unassailably correct that there was no need to wait – and no risk to Harvard’s $328 million in funding?
Or was it an attempt to use a window of legal uncertainty – a pause in the process – to make a political point that might placate gay and lesbian students and other constituencies at Harvard strongly opposed to offering any concessions to the military?
The confirmation hearings in the week ahead may provide an opportunity for Kagan to explain her decision to change the policy. More important, the hearings may give her a chance to explain whether the episode provides any insight into how she’d approach her job as a justice.
Kagan's political preferences and policy agenda
Her critics see in this story line a looming danger. Would a Justice Kagan be inclined to bypass the established deliberative appellate process in favor of fast action that supports her political preferences and policy agenda? critics ask.
“She did everything she could, including defying federal law and making legal arguments that even Justice [John Paul] Stevens could not accept, to pursue her political objective,” Senator Hatch told the Senate.
By the fall of 2005, Kagan’s policy switch was overruled by the president of Harvard University after the Pentagon threatened to cut off funding to Harvard for its ongoing violation of the Solomon Amendment.
In announcing the reversal, Kagan repeated her opposition to the military’s discriminatory policy toward gay service members. “This wrong tears at the fabric of our own community by denying an opportunity to some of our students that other of our students have,” she said.
“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,” Kagan said.
The following year, the US Supreme Court reversed the Third Circuit and upheld the constitutionality of the Solomon Amendment. The vote was 8 to 0.