Gingrich uses falsehoods to claim Kagan is “anti-military” and should be withdrawn

Gingrich claims Kagan “single[d] out the military” for a policy that was Clinton's. On the May 16 edition of Fox News Sunday, Fox contributor Newt Gingrich called for President Obama to withdraw Elena Kagan's nomination, stating:

GINGRICH: I think the president should withdraw her. I think the -- you don't need a whole lot of hearings. The very fact that she led the effort, which was repudiated unanimously by the Supreme Court to block the American military from Harvard Law School -- we're in two wars. And I see no reason why you would appoint an anti-military Supreme Court justice or why the Senate would confirm an anti-military Supreme Court justice. [...] GINGRICH: The American military didn't have a policy. The Congress of the United States and the Clinton administration she served in had a policy. And for her to single out the military was an extraordinarily myopic position, and if you read what they said at the time it was consistently focused on the military. And I just think at a time when we have two wars, that's a very inappropriate behavior for somebody to end up as a justice of the Supreme Court.

Kagan did not block the military from campus

Harvard students had access to military recruiters during Kagan's entire tenure as dean. Contrary to Gingrich's claim that Kagan tried to “block the American military from Harvard Law School,” throughout Kagan's tenure as dean, Harvard law students had access to military recruiters -- either through Harvard's Office of Career Services or through the Harvard Law School Veterans Association. Kagan became dean of Harvard Law in June 2003 and continued the school's policy of granting the military a special exception to its nondiscrimination policy so that the military could work with the law school's Office of Career Services (OCS).

In accordance with the nondiscrimination policy, Kagan barred OCS from working with military recruiters for the spring 2005 semester after the U.S Court of Appeals for the 3rd Circuit ruled that law schools could legally do so. During that one semester, students still had access to military recruiters via the Harvard Law School Veterans Association. During the fall 2005 semester, after the Bush administration threatened to revoke Harvard's federal funding, Kagan once again granted military recruiters access to OCS.

Harvard's data show that Kagan's actions did not adversely affect military recruitment. The notion that military recruitment was adversely affected by Kagan's actions is contradicted by data Media Matters obtained from Harvard Law School's public information officer. The prohibition on Harvard Law's OCS working with military recruiters existed during the spring 2005 semester, meaning that it could have affected only the classes of 2005, 2006, and 2007. However, the number of graduates from each of those classes who entered the military was equal to or greater than the number who entered the military from any of Harvard's previous five classes.

Military had a long-standing policy of discrimination against gay troops

Military's discriminatory policies existed prior to Clinton and DADT law. In April 1993 -- prior to the introduction of “Don't Ask, Don't Tell” in July -- The New York Times reported in anticipation of President Clinton's attempt to lift the ban on gays in the military that "[a]s things have stood, homosexuals could serve so long as they could hide." It went on to explain that Department of Defense regulations adopted in 1982 “allow a heterosexual to have homosexual sex and to be exonerated -- so long as he or she states that the incident was a lapse. Gay and lesbian soldiers, by contrast, are discharged just for identifying themselves as such.”

Because of the military's discriminatory policy, Harvard restricted military recruiters prior to enactment of DADT. A November 11, 1982, Harvard Crimson article makes clear that military recruiters were restricted in their access to Harvard Law School under the school's nondiscrimination policy long before the introduction of “Don't Ask, Don't Tell” or Kagan's tenure as dean in July of 1982 because of policies within the military. From the article:

Recently proposed changes in Defense Department regulations could end a simmering controversy between the army and six universities -- including Harvard -- whose law schools do not permit military recruiting. The dispute started last May, when a high-ranking army official warned the institutions that they could lose any future defense contracts if they continued to keep army recruiters off their law campuses. All six schools enforced the ban because the army violates their on-campus recruiting policies by refusing to accept homosexuals and handicapped persons for military service.

Kagan did not “single out” the military

Kagan: Anti-discrimination policy applied to “any employer that uses the services of OCS.” Kagan did not, as Gingrich claims, “single out the military,” but rather briefly ended the military recruiter exception (created in 2002) to Harvard Law School's broad anti-discrimination policy. In a September 20, 2005, letter, Kagan stated:

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.

In 2002, the then-Dean of the Law School, Robert Clark, in consultation with other officers of the University, reluctantly created an exception from the law school's general anti-discrimination policy for the military. The Dean took this action because of a new ruling by the Department of Defense stating that unless the Law School lifted its ban, the entire University would lose federal funding under a statute known as the Solomon Amendment. (This amendment denies federal funds to an educational institution that “prohibits or in effect prevents” military recruiting.)

[...]

I continued this exception in effect, for the same reasons, through the 2003 and 2004 fall recruiting seasons. In the meantime, a consortium of law schools and law school faculty members (FAIR) brought suit challenging the Defense Department's policy on constitutional grounds. Harvard Law School is not a member of FAIR, but 54 faculty members, including me, filed an amicus brief in that suit articulating different, statutory grounds for overturning the Department's policy. In November 2004, the Court of Appeals for the Third Circuit issued a decision in the FAIR case, holding that the Defense Department's policy violates First Amendment freedoms. The Supreme Court granted review of this decision; the Third Circuit's ruling is stayed pending the Supreme Court's decision, which is expected later this year. (Much the same group of HLS faculty members, including me, will file an amicus brief tomorrow in the Supreme Court litigation. I also understand that the University expects to join an amicus brief filed by Yale and other universities.) Although the Supreme Court's action meant that no injunction applied against the Department of Defense, 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. My hope in taking this action was that the Department would choose not to enforce its interpretation of the Solomon Amendment while the Third Circuit opinion stood. Over the summer, however, the Department of Defense notified the University that it would withhold all possible funds if the Law School continued to bar the military from receiving OCS services. As a result, I have decided (again, after appropriate consultation) that we should lift our ban and except the military from our general non-discrimination policy. This will mean that the military will receive OCS assistance during the fall 2005 recruiting season.

Robert C. Clark: Military was not able to sign nondiscrimination statement required of “all employers” seeking use of OCS. Kagan's predecessor as Harvard Law School dean, Robert C. Clark, wrote in a May 11 Wall Street Journal op-ed:

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. 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.

Goldstein: Harvard anti-discrimination policy “predates Kagan's tenure as dean” and “was not directed at the military.” Supreme Court expert and attorney Tom Goldstein wrote in a May 8 SCOTUSblog post: “Some commentators have claimed that Kagan's position on the Solomon Amendment reflects an anti-military bias. That criticism is unsound. Harvard's position -- which predates Kagan's tenure as dean -- was not directed at the military but instead is a categorical nondiscrimination rule applicable to all potential employers. It is a position that is widely shared among American law schools.”

Kagan is not anti-military

Kagan at West Point: “I know how much my security and freedom and indeed everything else I value depend on all of you.” During Kagan's October 17, 2007, speech at the United States Military Academy at West Point, New York, Kagan stated: “I am in awe of your courage and your dedication, especially in these times of great uncertainty and danger. I know how much my security and freedom and indeed everything else I value depend on all of you.” Kagan further stated that she has been “grieved” by DADT because she “wish[es]” that gays and lesbians “could join this noblest of all professions and serve their country in this most important of all ways.” Kagan added:

But I would regret very much if anyone thought that the disagreement between American law schools and the US military extended beyond this single issue. It does not. And I would regret still more if that disagreement created any broader chasm between law schools and the military. It must not. It must not because of what we, like all Americans, owe to you. And it must not because of what I am going to talk with you about tonight -- because of the deep, the fundamental, the necessary connection between military leadership and law. That connection makes it imperative that we -- military leaders and legal educators -- join hands and be partners.

Kagan has repeatedly praised the military even while opposing DADT. In an October 6, 2003, email announcing that Harvard Law School would allow military recruiters on campus, Kagan wrote that "[t]he importance of the military to our society -- and the extraordinary service that members of the military provide to all the rest of us -- makes this discrimination [DADT] more, not less, repugnant," a sentiment she reiterated in a 2005 letter offering “background” on the school's position on military recruiting on campus.

At an October 2004 rally protesting against military recruitment on campus, Kagan reportedly said: “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.” In a 2008 statement on the military recruiting issue, Kagan wrote, “The military is a noble profession, which provides extraordinary service to each of us every day.”

Veterans at Harvard Law, conservative legal blog have rejected claim that Kagan is “anti-military.”

• Harvard Law veterans: “Kagan has great respect for the military.” Responding to a January 30, 2009, Washington Times op-ed by Flagg Youngblood labeling Kagan an “anti-military zealot,” three Iraq war veterans attending Harvard Law School wrote in a letter to the editor that Kagan has “created an environment that is highly supportive of students who have served in the military,” and that "[u]nder her leadership, Harvard Law School has also gone out of its way to highlight our military service." The Harvard Law Record later reported on the veterans' letter, quoting Orazem as saying, “Kagan has great respect for the military.” ·

• Conservative legal blog: No reason to believe Kagan is hostile to the military. At Volokh Conspiracy, a group blog run by mostly conservative law professors, George Mason University Law professor Ilya Somin wrote: “I don't see any reason to believe that [Kagan's decision on military recruiters] reflects a general hostility towards the armed forces.”

Gingrich previously called for Sotomayor to withdraw

Gingrich previously smeared Sotomayor as a “racist” and said she should withdraw. During his Fox News Sunday appearance, Gingrich stated that Obama "should withdraw" Kagan's nomination. In 2009, Gingrich posted a tweet stating, “White man racist nominee would be forced to withdraw. Latina woman racist should also withdraw.”