- The Washington Times - Tuesday, February 10, 2009

ANALYSIS/OPINION:

Erik Swabb, Geoff Orazem and Hagan Scotten (“In defense of Elena Kagan,” Mailbox, Thursday) missed the point of Flagg K. Youngblood’s Op-Ed column opposing the nomination of Harvard Law School Dean Elena Kagan to be solicitor general (“Solicitor general flim-flam,” Jan. 30).

The writers appreciate Miss Kagan’s support for campus veterans at dinners and speaking occasions, but senators reviewing her nomination need to consider the implications of her active opposition to a law dubbed the Solomon Amendment. This law mandates that if a college or university receives federal funds, it must provide campus access for ROTC programs and military recruiters on an equal basis.

In 2005, Miss Kagan and 53 other law-school faculty members filed an amicus brief supporting litigation asking the courts to declare the Solomon Amendment unconstitutional. The U.S. Court of Appeals for the 3rd Circuit agreed with that position, but the Supreme Court overruled on a unanimous vote.

The outcome of this case could have been different if Miss Kagan had been the solicitor general instead of a law professor endorsing a losing argument. Absent an appeal, the circuit court ruling would have nullified the Solomon Amendment by judicial fiat, without any review by the Supreme Court.

The solicitor general also reviews all cases decided adversely to the government in the lower courts to determine whether they should be appealed and, if so, which position should be taken. In view of the far-reaching powers invested in this office, senators should question Miss Kagan closely to determine her legal philosophy.

For example, we need to know whether Miss Kagan still endorses the amicus argument that the military is no different from other employers. If this is her view, will she respect Supreme Court precedents recognizing the principle of “deference” to the executive branch and Congress on matters of regulation and law affecting the military? Questions are even more important because Miss Kagan has been mentioned as a possible future nominee for the U.S. Supreme Court.

ELAINE DONNELLY

President

Center for Military Readiness

Livonia, Mich.

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