Media again distort Kagan's record on opposition to “Don't Ask, Don't Tell”

Peter Beinart distorts Kagan's record to claim Kagan's actions were “a bit like barring the president or even the flag.” From an April 19 Daily Beast blog post by Peter Beinart titled “Elena Kagan's Achilles' Heel”:

If Solicitor General Elana [sic] Kagan gets the nod, conservatives will beat the hell out of her for opposing military recruitment on campus when she was dean of Harvard Law School. And liberals should concede the point; the conservatives will be right.

“I abhor the military's discriminatory recruitment policy,” wrote Kagan in 2003. It is “a profound wrong-a moral injustice of the first order." So far, so good. Not allowing openly gay and lesbian Americans into the military is a grave moral injustice and it is a disgrace that so many Republicans defend the policy to this day. But the response that Kagan favored banning military recruiters from campus-was stupid and counterproductive. I think it showed bad judgment.

The United States military is not Procter and Gamble. It is not just another employer. It is the institution whose members risk their lives to protect the country. You can disagree with the policies of the American military; you can even hate them, but you can't alienate yourself from the institution without in a certain sense alienating yourself from the country. Barring the military from campus is a bit like barring the president or even the flag. It's more than a statement of criticism; it's a statement of national estrangement.

I doubt that's how Kagan or her fellow administrators meant it. But it is certainly the way it has been received. It's no coincidence that most Ivy League schools banned ROTC in the late 1960s, at exactly the moment liberalism was committing hara-kiri. The perception that liberals are unpatriotic stems from that moment in time and from actions just like that. And while the charge is and always has been unfair, banning recruiters from campus does suggest a somewhat impoverished understanding of patriotism. Yes, dissent is patriotic, as liberals love to declaim, but assent is an important part of patriotism too. Saying you show your love for your country only through criticism is like saying you show your love for your spouse only through criticism. It isn't likely to go over well.

NRO's Whelan highlights Beinart's anti-Kagan blog post. In an April 26 National Review Online post headlined “Liberals Versus Elena Kagan,” Whelan quoted three paragraphs of Beinart's post and stated: “Peter Beinart, former editor of the New Republic, has joined the ranks of those raising alarms about the possible nomination of Elena Kagan to the Supreme Court. But his take (emphasis added) is strikingly different from the far Left's.”

After court ruling, Kagan briefly placed some restrictions on military recruiters

Kagan's decision to briefly reinstate restrictions on military recruiters followed Third Circuit decision stating that the law requiring full access was unconstitutional. In 2004, a three-judge panel of the U.S. Court of Appeals for the 3rd Circuit held 2-1 in FAIR v. Rumsfeld that the Solomon Amendment -- which stated that universities that do not provide access to military recruiters cannot receive certain federal money -- violated First Amendment free-speech rights. Judge Walter Stapleton, a Reagan appointee, joined the majority opinion in the case. Stapleton had previously been appointed to a federal district court judgeship by President Nixon. Kagan subsequently reinstated the ban against military recruitment through OCS for one semester in 2005 after the 3rd Circuit held that the law was unconstitutional. Kagan explained that she took the action because the military's Don't Ask, Don't Tell policy violated Harvard's non-discrimination policy.

While restrictions were in place, military recruiters had access to Harvard Law students through school's veterans association. 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.

[...]

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.

Dozens of other law professors, other law schools, and the Cato Institute argued against the government's interpretation of the Solomon Amendment. As Media Matters for America has documented, Kagan joined a brief filed on behalf of 40 Harvard law professors arguing against the government's interpretation of the Solomon Amendment. Briefs filed on behalf of 100 other law professors also argued against the Solomon Amendment or the government's interpretation of that amendment, as did other organizations including the Cato Institute.

Other law schools have had policies that accorded with Harvard's. The Joint Appendix filed in connection with the appeal of FAIR v. Rumsfeld to the Supreme Court contains statements from numerous law professors detailing their law schools' attempts to restrict military recruiters' access to career services offices. Following the 3rd Circuit's decision, in addition to Harvard, Yale and New York Law School also reportedly reinstituted their restrictions against military recruiters. In addition, at least one other school had a more restrictive policy than Harvard. According to the FAIR v. Rumsfeld complaint, from 1989-2002, at Whittier Law School, "[m]ilitary recruiters were not permitted to post recruiting information, speak at school-sponsored events, sit at tables, access student/alumni addresses, leave material visible in any library area, or interview on campus. If a student expressed interest in a military JAG [Judge Advocate General] career, the director of career services would refer the student to a recruiting office."

Kagan testified that she would have defended Solomon Amendment had she been Solicitor General at time of case

In response to a written question from the Senate Judiciary Committee regarding the Solomon Amendment, Kagan stated:

As I said at my hearing, I know well the procedural posture, facts, and arguments in the case, and I am sure that had I been Solicitor General at the time the Third Circuit decision came down, I would have asked the Supreme Court to review the decision. (Similarly, I would have sought appellate review in the Third Circuit had the district court held the Solomon amendment unconstitutional.) Indeed, this would have struck me as an easy case: a federal statute had been invalidated on constitutional grounds and there were clearly reasonable arguments that could be made in its defense. Those arguments, of course, would only be stronger today, in any future challenge to the Solomon Amendment, given the Supreme Court's emphatic decision upholding that statute's constitutionality. My approach to cases involving challenges to 10 U.S.C. § 654, the statute involving the don't-ask-don't-tell policy, would be the same. In this context, unlike in Rumsfeld v. FAIR, I do not know and cannot discuss the facts, procedural posture, and arguments associated with any particular case. But I can say that in any case attacking the constitutionality of 10 U.S.C. § 654, I would apply the usual strong presumption of constitutionality and give full weight to the factors supporting this presumption, such as the prior appellate court decisions upholding the statute and the doctrine of judicial deference to legislation involving military matters.