- The Washington Times - Wednesday, May 19, 2010

Recently, President Obama nominated former Harvard Law School Dean Elena Kagan for a lifetime appointment to the U.S. Supreme Court. This appointment has drawn criticism from both the left and the right, especially from those who serve in uniform - U.S. soldiers.

This criticism stems from Ms. Kagan’s 2005 decision to ban military Judge Advocate General (JAG) officers from entering Harvard Law School to meet and speak with law students who wanted to meet with the military recruiters because they were interested in becoming JAG officers. Why did she gag military lawyers? Because she disagreed with an existing federal statute that prohibited openly gay members from serving in the military.

It is common for news reporters to say Ms. Kagan objected to the Clinton administration’s “Don’t Ask, Don’t Tell policy.” But, that isn’t quite right. It is more than a “policy.” It is federal statute. The military didn’t write the law; it simply followed it - and Ms. Kagan gave them the boot for doing so.

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What’s more, Ms. Kagan clearly understood that this federal law was constitutional at the time, even before the Supreme Court ruled on the issue. In fact, the plaintiff’s brief, filed in Rumsfeld v. Fair (2006), stipulated that the “Don’t Ask, Don’t Tell” law was constitutional. So, Ms. Kagan wanted to prevent military lawyers from meeting on campus with willing students because the military followed a law she stipulated was constitutional.

Ms. Kagan objected to another federal law that said that if a university discriminated against military recruiters, then the federal government would cut off federal grants. She could have legally barred the military recruiters if she was willing to reject the federal money. Instead, she wanted to have her cake and eat it, too: She insisted that the federal government must continue giving federal grants to Harvard while Harvard discriminated against the military because it was complying with a federal statute (“Don’t Ask, Don’t Tell”) that she stipulated was constitutional.

Our Supreme Court has not been unsympathetic to homosexual rights in other contexts. But in this case, not a single justice agreed with Elena Kagan. All nine justices, in a unanimous Supreme Court opinion, held that the statute was constitutional. In essence, it said that simply disliking an existing federal law does not afford one a license to ignore it while demanding that the government give you money.

Supreme Court justices are appointed to interpret the Constitution. They hold the awesome responsibility of setting aside their personal views when deciding whether a law is constitutional. The concern here is that nominee Kagan’s record shows a propensity to make decisions based on what she would like the law to be instead of what the law is.

Chief Justice John Roberts, in his confirmation hearings, likened a Supreme Court justice to an umpire, who calls balls and strikes but doesn’t get into the game. Elena Kagan is less like the umpire, and more like the baseball fan who recently ran onto the field and interrupted the Philadelphia Phillies game. What happened to that fellow? He was tased. While I don’t think we should go around tasing Supreme Court nominees, I do think it warrants a little closer look at Ms. Kagan’s record and her suitability to serve on the high court.

The problem isn’t just Ms. Kagan’s lapse in judgment. The context is important, too. At the time of her gag order, the United States was embroiled in two wars and it was recruiting JAG officers to serve. JAGs deploy, too. I know - I used to be one. I served alongside a JAG officer from Harvard. Denying JAG officers and willing Harvard law students the opportunity to meet and talk about opportunities to serve in the military is not fair to the military - and it is not fair to law students who are interested in serving their country. It is, quite plainly, discrimination.

Kyndra Miller Rotunda is a visiting assistant professor of law at Chapman Law School, lecturer at Berkeley Law School, former JAG officer and author of “Honor Bound: Inside the Guantanamo Trials” (Carolina Academic Press, 2008).

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