05/11/2010 (11:12 am)
President Obama’s nominee-apparent for the Supreme Court seat being vacated by John Paul Stephens is facing her first public examination, to be carried out by commentators in the public arena. It addresses an incident stretching from 2002 through 2004, in which Ms. Kagan, first as law professor and then as Dean of the Harvard Law School, publicly and through litigation opposed US military recruitment on the Harvard University campus. The incident has produced an Internet blogstorm addressing the question, “Is Elena Kagan anti-military?”
A brief, on-the-surface examination of the event itself suggests that the answer is “No,” or at least (to be more precise) “That incident by itself is not sufficient proof of the claim.” Robert C. Clark, himself Dean of Harvard’s law school from 1999 – 2003, explains the mechanics of the scuffle in the Wall Street Journal today. Harvard University disapproved of the military’s “Don’t Ask, Don’t Tell” policy because it violated their placement office’s non-discrimination policy, which included “sexual orientation” among the things against which potential employers ought not discriminate. The Air Force objected on the basis of a law called the Solomon Act, which denies federal funding to universities that do not permit military recruiters on campus. Harvard had compromised by permitting the military to recruit through student organizations rather than through its placement office, compromising their principles to keep their federal funds, but the Air Force pressed its objection hoping to recruit with the help of Harvard’s Office of Career Services.
Dean Kagan cooperated with a legal challenge to the Solomon Act which claimed, in FAIR v. Rumsfeld, that the act was unconstitutional on 1st Amendment grounds. When the Solomon Act was declared unconstitutional by the 3rd Circuit and the decision was appealed by the Department of Defense to the US Supreme Court, Kagan signed a Friend of the Court brief supporting the plaintiffs and upholding the 3rd Circuit’s opinion. That opinion regarding the Solomon Act was overturned 8-0 by the US Supreme Court, vindicating PowerLine attorney Scott Johnson’s assessment that the argument Kagan endorsed was, “to say the least, strained.”
William Kristol at The Weekly Standard adds the relevant point that Harvard’s, and Kagan’s, opposition was not to the military but to standing US law. “Don’t Ask, Don’t Tell” was not an administrative policy produced by the military, it was a policy adopted by a Democrat-controlled Congress in 1993 and signed by a Democrat President. So, Harvard really had no legal grounds on which to refuse military recruiters access to their placement office — unless they were willing to refuse federal funds.
Personally, I detest the practice of the federal government giving funds for education, specifically because it gives it leverage to demand things that universities should be free to decide for themselves. If it’s morally necessary for universities to allow military recruitment (and I think it is,) we should pass a law saying so, and not rely on turning major universities into whores, pretending to leave them free but making them compromise themselves for money.
But that aside, what’s clear from the incident has less to do with the military than it has to do with Ms. Kagan’s pro-gay activism. She first flouted federal law, then involved herself in a legally tendentious challenge to that law, for the sake of what she regards as gay civil rights. In doing so, she staked out a position to the left of even the left-most of the Supreme Court’s Associate Justices, and to the left of the mainstream of the Democratic party, which passed the Solomon Act. While she has every right to engage in public activism of this sort, we have every right to ask whether we want to appoint such a partisan to the highest court of the land. On the Supreme Court, we need dispassionate defenders of the law, not advocates for partisan goals; if Ms. Kagan is a partisan advocate, she should be one, and refuse the nomination.
Moreover, we should not abandon the possibility of an anti-military bias so easily. Stereotypes facilitate information exchange; there are certain things one can take for granted about people of particular political stripe unless they explicitly say otherwise. For instance, conservatives are apt to favor limits on abortion, liberals to oppose them. There are exceptions, but unless we hear them we properly assume the general case.
Kagan is a progressive. We can infer from that that she believes the following about the military, unless we hear otherwise:
- Money spent on military recruiting, training, and equipping would be better spent on social programs, without exception.
- Any military action is presumed to be completely explained by its benefit to some Republican constituency group, and has no benefit whatsoever for national defense, unless initiated by a Democratic President.
- America’s military opponents are simply ordinary citizens engaged in perfectly justified and even patriotic defense of their homeland, and to fight them is to face endless war and certain defeat, Just Like Vietnam®.
- The American military turns ordinary, decent citizens into depressive, reflexive murderers, but no similar influences affect America’s adversaries, for which reason American servicemen are presumed guilty of any atrocity attributed to them, while fighters for America’s adversaries never are.
- True American patriots will engage in active opposition to any American military operation, even to the point of embarrassing the US unjustly in the eyes of the world, handing to our enemies information vital to our national security, crippling the US’ ability to act, and even visiting America’s military enemies and declaring one’s support for them. Such destructive activism is called “reasoned debate,” and no criticism of such “debate” is permitted.
- It is completely consistent for those who behave in the fashion described by bullet points (1) – (5) to declare publicly, “I completely support America’s soldiers, and honor their commitment,” and to be believed. To doubt such a declaration is evil.
- Give Peace A Chance. Om. Pass the tofu.
Has anybody produced anything suggesting that Ms. Kagan does not hold to all points in that list, right down to the tofu? To the contrary, Kristol believes that for Ms. Kagan to mistakenly assign to “the military” a policy that was passed by the Congress and signed by the President, suggests precisely the sort of animus against the military that the above list describes. And I agree. Ms. Kagan may be an intellectual heavyweight, but let’s assume she feels more or less what Democrats have advocated openly concerning the military.
Ed Whalen posted a sensible list of objections to Kagan’s nomination at The Corner, which I recommend as a general introduction to the issues concerning the nomination. Aside from those and her near-certain support for existing, anti-federalist abortion law, I oppose her nomination because she’s an anti-military, pro-gay partisan, not a defender of dispassionate law.