Harvard law professor’s defense of Kagan doesn’t hide her anti-military animus

I’d like to analyze a Harvard’s law prof’s defense of a Harvard law dean.  The Prof (and ex-dean himself) is Robert Clark, who wrote an op-ed in the WSJ defending Supreme Court nominee Elena Kagan’s approach to the military during her tenure as dean of Harvard Law.  He spells out the facts, which I’ll accept as true (although with significant omissions), that he contends proves that Kagan loves the military.  If his opinion piece passes for legal analysis at HLS . . . well, they’re all Obamas there, I guess.

Clark begins by explaining that, when Kagan came on board as dean of Harvard Law, Harvard already had a long-standing policy barring any recruiting by employers who hadn’t signed onto a statement that they didn’t discriminate:

As dean, Ms. Kagan basically followed a strategy toward military recruiting that was already in place. Here, some background may be helpful: Since 1979, the law school has had a policy requiring all employers who wish to use the assistance of the School’s Office of Career Services (OCS) to schedule interviews and recruit students to sign a statement that they do not discriminate on the basis of race, gender, sexual orientation, and so on.

(Just FYI, I have a big problem with forcing employers to sign that kind of stuff as a precondition for recruiting.  I don’t think Harvard should be narrowing the pool of prospective employers for their students who are, after all, adults.  Even more than being mere adults, since they’re graduates of Hah-vahd Law, one would think they’d learned a little about analyzing their own needs and the type of employer they wanted.  Had I been in charge, I would simply have required that all comers inform prospective employees what their non-discrimination policies are.  But then again, unlike a liberal, I prefer more information, not less.  But back to Clark’s Kagan narrative. . . .)

In the early years after Harvard started censoring prospective employers, the military circumvented its inability to sign this statement (a Congressionally imposed inability, I might add), by appearing on campus as the guest of a school organization:

For years, the U.S. military, because of its “don’t ask, don’t tell” policy, was not able to sign such a statement and so did not use OCS. It did, however, regularly recruit on campus because it was invited to do so by an official student organization, the Harvard Law School Veterans Association.

Eventually, the Air Force, fed up by its second class treatment, challenged Harvard for violating the 1996 Solomon Amendment (which, like “don’t ask, don’t tell,” passed during a Democratic administration).  That Amendment says that a school can’t take federal money and than ban the American military from its campus. (Or as we used to say in Texas, you dance with them what brung ya’.)

The symbolic effect of this special treatment of military recruiters was important, but the practical effect on recruiting logistics was minimal. In 2002, however, the Air Force took a hard line with Harvard and argued that this pattern did not provide strictly equal access for military recruiters and thus violated the 1996 Solomon Amendment, which denies certain federal funds to an education institution that “prohibits or in effect prevent” military recruiting. It credibly threatened to bring an end to federal funding of all research at the university.

The Law School is so damn rich, Clark says, it could survive without federal money, but other colleges at Harvard might have been hurt by losing your and my taxpayer dollars.  Although it violated every liberal principle in the faculty’s collective body, Harvard Law bowed to Mammon and gave the military a pass on its (Democratically mandated) inability to sign the school’s (Nanny state) non-discrimination pledge. The liberals, of course, made their usual “we love the military” speech, even as they sought to undercut its efficiency.

This penalty would not have hurt the law school, which has virtually no such funding. But it would have hurt other schools at Harvard, principally the medical school and the school of public health. It would have eliminated about 15% of the university’s operating budget.

After much deliberation with the president of Harvard and other university officials, we decided to make an exception for the military to the school’s nondiscrimination policy. At the same time, I, along with many faculty and students, publicly stated our opposition to the military’s policy, which we considered both unwise and unjust, even as we explicitly affirmed our profound gratitude to the military. Virtually all law schools affiliated with large universities did the same.

Kagan rolled with this new policy favoring the military, but complained about it vociferously. That is, at the beginning of each recruiting season, she went out of her way to pay lip service to the military, and then to attack it for following a “don’t ask, don’t tell” policy — a policy, I might add, enacted by a Democratic Congress and signed by Bill Clinton, her former employer:

When Ms. Kagan became dean in July of 2003, she upheld this newer policy. Military recruiters used OCS services, but at the beginning of each interviewing season she wrote a public memorandum explaining the exception to the school’s nondiscrimination policy, stating her objection to “don’t ask, don’t tell,” and expressing her strong view that military service is a noble and socially valuable career path that should be encouraged and open to all of our graduates.

Kagan was not happy with the Solomon Amendment’s dictates, something made clear the moment the opportunity arose for her to block the military from Harvard Law.  When the Third Circuit said that the Solomon Amendment was unconstitutional, Kagan immediately kicked the military off campus again, depriving it off access to some of America’s best and brightest during time of war:

In November 2004, however, the Third Circuit Court of Appeals found that the Solomon Amendment infringed improperly on law schools’ First Amendment freedoms. So Ms. Kagan returned the school to its pre-2002 practice of not allowing the military to use OCS, but allowing them to recruit via the student group.

Unfortunately for Kagan, the U.S. Supreme Court ultimately concluded that the Solomon Amendment was constitutionally sound and held that, unless schools taking federal money give access to the U.S. military, they can kiss their dollars good-bye. Despite the largest endowment in America, Harvard chose free money over principles, and once again opened its doors (complaining bitterly all the while):

Yet this reversion only lasted a semester because the Department of Defense again threatened to cut off federal funding to all of Harvard, and because the U.S. Supreme Court reversed the Third Circuit’s decision. Once again, military recruiters were allowed to use OCS, even as the dean and most of the faculty and student body voiced opposition to “don’t ask, don’t tell.”

From this story, Clark reaches what is, to me, a bizarre conclusion (emphasis mine):

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. Quite the opposite is true.

Do you think Clark’s conclusion makes sense.  As I read his own words, he is describing a woman who, at every opportunity, tried to block the military — a military at war — from having access to people who are presumably the nation’s top law students.  She did so because she doesn’t agree with a federal policy put into place by her own own political party and signed by her former boss, Bill Clinton. Not only that, when she was forced to give the military access to these students, she repeatedly voiced her hostility to the military’s program, ignoring the fact that the military was constrained by a political compromise enacted under the aegis of her Democratic party.  Would you remind me where this falls into the “not hostile to the U.S. military” category?

And while I’m at it, let me add a few salient facts that Clark conveniently forgot to mention in his little narrative.

First, as Clark’s narrative tells, every year when Kagan reluctantly allowed military recruiters onto campus, she sent out a formal announcement bemoaning the fact that she was forced to do so.  These were no dry statements.  They were emotionally charged, and the emotions hit the wrong target:

Consider these words in particular from her letters to “All Members of the Harvard Law School Community”: On Oct. 6, 2003, Kagan explained that she abhorred “the military’s discriminatory recruitment policy….The military’s policy deprives many men and women of courage and character from having the opportunity to serve their country in the greatest way possible. This is a profound wrong — a moral injustice of the first order.” On Sep. 28, 2004: “…the military’s recruitment policy is both unjust and unwise. The military’s policy deprives…” etc. And on March 7, 2006: “I hope that many members of the Harvard Law School community will accept the Court’s invitation to express their views clearly and forcefully regarding the military’s discriminatory employment policy. As I have said before, I believe that policy is profoundly wrong — both unwise and unjust…,” etc.

Notice, time and again: “the military’s discriminatory recruitment policy,” “the military’s policy,” “the military’s recruitment policy,” “the military’s discriminatory employment policy.”

But it is not the military’s policy. It is the policy of the U.S. Government, based on legislation passed in 1993 by (a Democratic) Congress, signed into law and implemented by the Clinton administration, legislation and implementation that are currently continued by a Democratic administration and a Democratic Congress. It is intellectually wrong and morally cowardly to call this the “military’s policy.” Wrong for obvious reasons. Cowardly because it allowed Kagan to go ahead and serve in the Clinton administration that enforced this policy she so detests, and to welcome to Harvard as Dean former members of that administration, as well as Senators and Congressmen who actually voted for the law–which is more than the military recruiters whom Kagan sought to ban did.

Even liberal commentators, most notably Peter Beinart, who deeply disapproves of “don’t ask, don’t tell,” have recognized that Kagan loaded, aimed, and then shot the wrong target:

The military, like Congress, the courts and the presidency, is one of our defining public institutions. To question its moral legitimacy is not like questioning the moral legitimacy of General Electric. And that’s exactly what banning the military from campus does. It suggests that Harvard thinks not just that the military’s anti-gay policy is immoral (which it emphatically is) but that the institution itself is immoral. It’s like refusing to sing the national anthem because you’re upset at the Bush administration’s torture policies or refusing to salute the flag because of the way Washington responded to Hurricane Katrina. It’s a statement of profound alienation from your country, and will be received by other Americans as such.

Beinart’s absolutely right.  He recommends that Kagan apologize, but I don’t think an apology will cut the mustard with Americans who recognize in her a profound disdain for the military, one that can’t be swept away with a muttered, “I’m sorry I said that.”

Second, Clark’s narrative also misses the fact that Kagan didn’t just complain about the Solomon Amendment — she acted upon her complaint.  By doing so, as Scott Johnson explains, she proved herself to be in a clear minority as a legal thinker (although comfortably in lockstep with America’s Ivory Tower elites):

When the Supreme Court accepted the Department of Defense’s appeal from the Third Circuit decision, Kagan got on board. She was one of 40 Harvard Law School professors who signed a friend-of-the-court brief written by Walter Dellinger supporting the FAIR plaintiffs.

In the brief Dellinger argued that the Solomon Amendment applied only to schools that specifically prohibited military access on campus, not to schools’ whose policies simply had the (allegedly) incidental effect of doing so. Dellinger distinguished the law schools’ contemporary anti-discrimination policies from Vietnam-era academic anti-military policies.

Dellinger’s argument based on the language of the Solomon Amendment was, to say the least, strained, and the Supreme Court gave it the back of its hand in the Court’s 8-0 opinion upholding the Solomon Amendment. Even Justice Stevens rejected it.

Here we have Kagan herself, as Dean of the Harvard Law School, signing off on a brief making an argument so far out that not a single member of the Supreme Court found it worthy of adherence. This would seem to provide some evidence for the proposition that Kagan’s views lie somewhere outside the mainstream of Supreme Court jurisprudence.

Perhaps the institutional imperatives to which she gave voice as dean of the Harvard Law School overrode her common sense. For other reasons, Kagan has noted she didn’t write the brief; she merely signed it.

Kagan’s side decisively lost the FAIR case in the Supreme Court. I wrote while the case was pending in the Supreme Court that some lawsuits deserve a fate worse than failure. While decent military recruiters suffered the rudeness of their purported betters at Yale Law School and elsewhere in silence, the armed services of the United States were (and are) actively defending the freedom of those schools from peril. The rank ingratitude of those who should know better is a disgrace that deserves to be widely recognized as such.

So, not only does Clark’s conclusion that Kagan is a proud supporter of the American military fail to mesh with his own facts, it also fails to mesh with the facts he excluded from his summary of her approach to the military.

Kagan is certainly not a rabid anti-military person.  As far as we know, she never took to the streets, and she never said anything intemperate.  Nevertheless, during her war-time tenure as Harvard Law’s dean, she actively worked against the military, in violation of rather explicit federal law.  In addition, when the opportunity came along, she signed her name to a brief so contrary to constitutional law that even the liberal jurists on the Supreme Court could not support her position.  (This might not be surprising.  She seems to be careless and unprepared when it comes to acting like a lawyer, something worth considering in light of her Supreme Court nomination.)

Although this post touches heavily upon “don’t ask, don’t tell,” it is not about the merits of that government policy.  It is, instead, about the fact that Kagan’s defenders will obfuscate the record to hide the fact that, as Michael Gerson has said, “many Americans will find her acts offensive”:

During a pastel career, Kagan made one neon decision — to ban military recruiters from the Office of Career Services when she was dean of Harvard Law School, based on her strong opposition to the “don’t ask, don’t tell” policy. Legal experts understand that this is a controversy at many law schools. Kagan will explain that she followed the law and the ruling of the courts, even while arguing to overturn the policy.

I suspect, however, that many Americans will find her actions offensive — with far more intensity than the White House expects. Kagan not only took this controversial action, she publicly attacked the policy as “deeply wrong,” “unwise and unjust” and “a moral injustice of the first order.” It will be hard to downplay an issue on which Kagan has a history of grandstanding. Blocking military recruiters may seem normal in academic circles, but it will seem radical in much of the country — like banning the American flag from campus to protest some policy disagreement with the government. This controversy will add to a broader narrative that “Manhattan’s liberal, intellectual Upper West Side” is disconnected from the views and values of Middle America.