- The Washington Times - Wednesday, May 12, 2010

At her first opportunity to do so, Supreme Court nominee Elena Kagan banned military recruiters from campus during her tenure as dean of Harvard Law School, in protest over the Pentagon’s policies on gays.

Ms. Kagan’s defenders insist the nominee was simply following the law as it worked its way through the courts, but Ms. Kagan banned the recruiters as soon as an appeals court in 2004 struck down a law tying federal funding to allowing military recruiting on campus. She acted despite the court’s order that the ruling not take effect until the Supreme Court reviewed the case.

The episode offers one of the few insights into Ms. Kagan’s thinking on any issue and promises to be a focal point of what is shaping up to be a relatively low-key confirmation battle to replace retiring Justice John Paul Stevens.

“I think it’s not a small matter, and when she was a dean of Harvard we had 900 people killed in Iraq and Afghanistan and they were not permitted to come on the Harvard campus to recruit JAG officers because she believed that President Clinton’s ‘don’t ask, don’t tell’ policy was wrong,” Sen. Jeff Sessions, an Alabama Republican who will lead his party’s questioning during Ms. Kagan’s confirmation hearing, said Tuesday during an interview on Fox News.

The Harvard recruiting decision also has opened Ms. Kagan to criticism from some conservative pro-military voices.

Elaine Donnelly of the Center for Military Readiness this week came out against the nomination, focusing squarely on the Harvard Law School episode.

“It is unfortunate that President Obama has chosen to replace the only military veteran on the Supreme Court with extensive wartime experience with a nominee whose only significant record indicates deliberate hostility and opposition to laws protecting the culture and best interests of the American military,” she said.

Harvard Law School grudgingly allowed military recruiters to use its career services offices because of a law that cut off federal funding for universities that banned recruiters. When the lower court overturned the law, Ms. Kagan acted immediately.

“I believe the military’s discriminatory employment policy is deeply wrong — both unwise and unjust,” Ms. Kagan wrote in a 2005 e-mail to faculty and students announcing the ban.

Robert Clark, who preceded Ms. Kagan as dean of Harvard Law School, noted in a Wall Street Journal Op-Ed Tuesday that he had instituted the compromise recruitment arrangement at the school the year before Ms. Kagan took over in 2003.

“Outside observers may disagree with the moral and policy judgments made by those at Harvard Law School. But it would be very wrong to portray Elena Kagan as hostile to the U.S. military,” he wrote.

Ms. Kagan relented a few months later when the federal government threatened to pull Harvard’s public funding. The Supreme Court subsequently overturned the lower court and upheld what is known as the “Solomon Amendment,” the law that tied federal funding to allowing military recruiters on campus.

Ms. Kagan, 50, has spent most of her career in academia and, unlike every other Supreme Court nominee in the past four decades, she has never served as a judge. She offered few hints about her views during her 2009 confirmation as solicitor general — she called abortion and gun rights legally settled matters.

With a thin paper trail with which to evaluate her views, the military recruitment issue has become a focal point.

The White House launched a full-throated defense of Ms. Kagan’s handling of the situation Tuesday, a day after President Obama formally named her as his replacement for 90-year-old Justice Stevens, who is retiring after 35 years on the bench.

“There’s people that either don’t know or are unwilling to understand the facts,” White House press secretary Robert Gibbs said during Tuesday’s briefing. “The military had, through a student organization, access to Harvard Law School students and the semester in which they did not have access to the office of career services actually saw an increase in the number of Harvard Law School students that joined the military.”

Mr. Clark wrote that the law school’s policy since 1979 was to require recruiters from all professions to sign a statement pledging that they did not discriminate in order to be allowed to use the career services office.

Mr. Clark wrote that because of the ban on openly gay service members, military recruiters did not sign the statement and were not allowed to use the career services office. They did recruit on campus, however, with the help of the Harvard Law School Veterans Association.

That arrangement changed in 2002 when the Air Force asserted that Harvard’s policy ran afoul of the Solomon Amendment, enacted in 1996.

• Ben Conery can be reached at bconery@washingtontimes.com.

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