Kristol falsely claims Kagan has a “hostility to the U.S. military,” says “don't confirm”

Kristol wrote in a May 10 entry on the Weekly Standard blog, headlined “An Anti-Military Justice?”:

For me, the key obstacle to Elena Kagan's confirmation is pt. 5 in Ed Whelan's NRO post, which is also the question raised by Peter Berkowitz in these pages several years ago and by Peter Beinart just recently: Her hostility to the U.S. military.

Hostility? Isn't that harsh? Kagan has professed at times her admiration for those who serve in the military, even as she tried to bar military recruiters from Harvard Law School. But how does one square her professed admiration with her actions--embracing an attempt to overturn the Solomon Amendment that was rejected 8-0 by the Supreme Court--and her words?

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Many important people are complicit in what Kagan regards as the “moral injustice of the first order” of Don't Ask, Don't Tell. The only ones Kagan sought to make pay a price were those serving the ranks of the military.

So Kagan needs to be asked: Why doesn't this reflect hostility to the military?

Military veterans, Kagan's own words reject notion that Kagan is hostile to the military

Iraq War veterans: Characterization of Kagan as anti military “a gross mischaracterization”. In a letter to the Senate Judiciary Committee criticizing as “a gross mischaracterization” a Washington Times op-ed that described Kagan as an “anti-military zealot,” three Iraq War veterans who were Harvard law students at the time wrote: “As Iraq War veterans who currently attend Harvard Law School, we wanted to inform the Committee of Dean Kagan's strong record of welcoming and honoring veterans on campus.” The veterans also wrote a letter to The Washington Times that stated, in part, that while they opposed the restrictions on military recruiters, “During [Kagan's] time as dean, she has created an environment that is highly supportive of students who have served in the military.”

Kagan: Military service “the greatest service a person can give for their country.” In an October 2004 article, the Harvard Law Record quoted Kagan stating that she opposed Don't Ask, Don't Tell because: “What the United States government is essentially saying to gays and lesbians is that they cannot participate in, they cannot contribute to this incredibly important mission. These men and women, notwithstanding their talents, their conviction, their courage, cannot perform what I truly believe to be the greatest service a person can give for their country. And that's just wrong, that's just flat out wrong.”

Kagan consistently followed the law on military recruiters while allowing students access to them

Kagan allowed military recruiters access to Harvard Law School's Office of Career Services. In the 1990s, based on its anti-discrimination policy, Harvard Law School refused to allow military recruiters to use the school's Office of Career Services (OCS) because of the military's discriminatory Don't Ask, Don't Tell policy. In 2002, after the Bush administration threatened federal funding at Harvard under the Solomon Amendment, Kagan's predecessor as dean created an exception to Harvard's anti-discrimination policy and allowed military recruiters access to OCS. When Kagan became dean in 2003, she continued to allow military recruiters access to OCS.

When Solomon Amendment was ruled unconstitutional, Kagan prohibited Harvard's career office from working with military recruiters for a semester. In a 2-1 ruling in 2004, a three-judge panel on the 3rd Circuit ruled that “The Solomon Amendment requires law schools to express a message that is incompatible with their educational objectives, and no compelling governmental interest has been shown to deny this freedom.” Following this ruling, Kagan reinstated the ban on military recruitment for one semester in 2005. When the Bush administration threatened to revoke Harvard's federal funding, Kagan reinstated access. The Supreme Court reversed the 3rd Circuit's decision in 2006.

During that one semester, students still had access to military recruiters via the Harvard Law School Veterans Association. The New York Times noted on May 6 that “even when [Kagan] ... briefly barred the military from using the law school's main recruitment office, she continued a policy of allowing the military recruiters access to students.” As Kagan explained in a September 2005 letter to her colleagues:

The Law School's anti-discrimination policy, adopted in 1979, provides that any employer that uses the services of OCS to recruit at the school must sign a statement indicating that that it does not discriminate on various bases, including sexual orientation. As a result of this policy, the military was barred for many years from using the services of OCS. The military retained full access to our students (and vice versa) through the good offices of the Harvard Law School Veterans Association, which essentially took the place of OCS in enabling interviews to occur.

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I reinstated the application of our anti-discrimination policy to the military (after appropriate consultation with University officials) in the wake of the Third Circuit's decision; as a result, the military did not receive OCS assistance during our spring 2005 recruiting season.

Kagan pledged to defend Solomon Amendment during solicitor general confirmation hearings. Kagan wrote in her written statement during confirmation hearings:

A fortiori, now that the Supreme Court has upheld the Solomon Amendment, if confirmed I would vigorously defend it against constitutional challenge.

Kristol previously “endorsed” Kagan

Kristol endorsed Kagan's nomination, then said Republicans “should oppose” her to spark a “debate.” On the April 11 edition of Fox News Sunday, Kristol said that he “endorsed” Kagan but that “I think most Republicans would oppose her and, honestly, should oppose her, with respect and with deference to her, you know, impressive academic credentials, because she will be a reliable liberal vote, and I think Republicans should want to have a serious debate on the Constitution.”