Some of the toughest questions Elena Kagan will face in her Supreme Court confirmation hearings this coming week will focus on her actions during the military recruiting controversy while she was dean of Harvard Law School.
The issue does not lend itself to 10-second sound-bite questions or responses. But it is an area that could reveal something important about Ms. Kagan and what kind of Supreme Court justice she might become.
In 2004, Kagan barred military recruiters from using the law school’s office of career services to meet with students interested in military service. She took the action to enforce the school’s longtime policy of shunning prospective employers who discriminate based on sexual orientation.
The action was controversial because it came at a time when the United States was at war in both Iraq and Afghanistan. By November 2004, 1,410 coalition forces had died in Iraq, and 196 had been killed in Afghanistan.
To many Americans – including those with family and friends on overseas deployments – any effort to restrict military recruitment endangers US service members and the country.
In her statement announcing that military recruiters would be barred from the school’s office of career services, Kagan said: “I am gratified by this result, and I look forward to the time when all law students have the opportunity to pursue any legal career they desire.”
White House: Recruiters always had access
Immediately after her Supreme Court nomination was announced, the White House moved to counter queries on military recruiting with a coordinated response: At no time were recruiters barred from the law school campus.
Administration officials and other Kagan supporters stressed that a student veterans group agreed to help facilitate student access to military recruiters during this period.
The clear suggestion was that Kagan’s policy change had no real impact on military recruiters. But the recent release of 850 pages of Defense Department documents tells a different story.
Polite and patient military recruiters were told by Harvard officials to call back later. They received this response again, and again, for weeks until the recruiting season had ended.
“The Army was stonewalled at Harvard. Phone calls and emails went unanswered,” an Army recruiter said in a March 2005 memo. “The [career services director] refused to inform students that we were coming to recruit and the [career services director] refused to collect resumes or provide any other assistance.”
One Air Force recruiter’s memo concludes: “We shouldn’t allow [Harvard Law School] to play this game.”
Critics view Kagan’s stance in seeking to limit the access of military recruiters on the law school campus as a reflection of antimilitary bias. Supporters see it as a manifestation of her deeply held belief that the Pentagon’s “don’t ask, don’t tell” policy banning gay men and lesbians from serving openly in the military is a civil rights travesty.
“Ms. Kagan … kicked the military out of [Harvard’s] campus recruitment office,” he said in a speech on the Senate floor. “She gave big law firms full access to recruit bright young associates, but obstructed the access of the military as it tried to recruit bright young JAG officers to support and represent our soldiers as they were risking their lives for our country. It was an unjustifiable decision.”
'Kagan disregarded the law'
Senator Sessions added: “Ms. Kagan disregarded the law in order to obstruct military recruitment during a time of war.”
Defense Department documents show that Kagan’s efforts to hinder military recruiting immediately attracted the attention of Defense Secretary Donald Rumsfeld, among other Pentagon officials. “What can we do about that?” Mr. Rumsfeld asked in a memo to his general counsel.
Even later, after the US Supreme Court ruled in favor of the Defense Department’s position, Pentagon officials worried that Kagan might encourage students to organize noisy protests to disrupt military recruiters on campus.
“We’re all searching for a way to limit the polarizing nature of [the opponents to military recruiting] who now rattle sabers over an intent to shout down the military,” one memo says. “Dean Kagan is a case in point … as she reportedly ‘encouraged students to demonstrate against the presence of recruiters … [and to] express their views clearly and forcefully.’ ”
Two controversial policies
At the heart of the military recruiting issue are two controversial policies. The US military has long discriminated against homosexuals, forcing anyone who openly acknowledges that they are gay or lesbian to leave the armed services. In protest of that policy, Harvard and many other universities have taken action to ban or limit the ability of the military to recruit on campus.
Harvard requires all potential recruiters to agree not to discriminate against its students based on sexual orientation. Those who agree to that policy are granted full access to the school’s office of career services. Those who don’t are denied access.
Concerned that such school policies might undermine military recruitment, Congress passed the Solomon Amendment in 1996. The law threatens the withdrawal of federal funding from any university that denies military recruiters access to students on campus that is equal with all other prospective employers.
Harvard negotiated a compromise in which military recruiters would gain access to students interested in military service through a student social organization of military veterans. But the recruiters were still barred from the career services office.
After the 9/11 terrorist attacks with US forces deploying abroad, the Pentagon took a much tougher stance on the recruiting issue, insisting that the military be granted the same access as other recruiters. If not, universities would start losing federal funding, officials warned.
At Harvard, that meant the entire university might lose $328 million in federal funding. In August 2002, the law school reversed its policy. For the first time in decades it allowed military recruiters to use the career services office like every other prospective employer.
Kagan inherited the changed policy when she became dean of the law school in 2003. She made no secret of her opposition to allowing military recruiters equal access to students.
'I abhor the military's discriminatory policy'
“This action causes me deep distress, as I know it does a great many others,” she said in a 2003 message to the law school. “I abhor the military’s discriminatory recruitment policy.”
In the meantime, a group of law schools and faculty members filed a lawsuit challenging the constitutionality of the Solomon Amendment.
A federal judge threw the suit out, but a panel of the Third US Circuit Court of Appeals in Philadelphia agreed with the law schools. On Nov. 29, 2004, the panel voted 2 to 1 that the Solomon Amendment violated the First Amendment rights of the law schools and that any efforts by the government to enforce the amendment must halt.
Kagan and others celebrated the legal victory. At the Pentagon, with two wars under way, the ruling prompted concern.
Here is where the story gets a bit complicated.
When an appeals court issues an opinion, that doesn’t mean the opinion takes immediate effect. The government appealed the Third Circuit’s decision to the US Supreme Court. To facilitate the appeal, the Third Circuit stayed its ruling, and postponed its suggestion that an injunction be issued against enforcement of the Solomon Amendment.
Nonetheless, the day after the Third Circuit opinion, Kagan announced that the law school would return to its prior policy of sharply limiting the access of military recruiters.
“This return to our prior policy will allow [the office of career services] to enforce the law school’s policy of nondiscrimination without exception, including to the military services,” she said.
Defense Secretary Rumsfeld gets involved
It is at this point that Defense Secretary Rumsfeld fired off his memo to the Pentagon’s general counsel.
In her statement, Kagan said that the Third Circuit ruling had “enjoined the enforcement of the Solomon Amendment.” That statement is true but misleading given that the case would almost certainly be appealed. If appealed, the force of the decision would likely be stayed pending the outcome of the appeal.
That’s what happened. Despite Kagan’s actions, the Solomon Amendment remained in full force.
“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.”
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.