Times editorial, op-ed advance false claim that Kagan is anti-military

Editorial: “It's obvious where her heart is -- and that's not with Americans in uniform.” A May 18 Washington Times editorial falsely claimed Kagan “bann[ed] military recruiters from Harvard Law School” and then stated that "[i]t's obvious where her heart is -- and that's not with Americans in uniform." From the editorial:

Ms. Kagan did her best to use the powers of her office to try to keep military recruiters off campus in time of war. As Newt Gingrich said, it was “an act unbecoming an American.” Like the ROTC ban, this is a litmus test issue. Ms. Kagan was not being pragmatic; she was waging a personal moral struggle, and military recruiters paid the price. She instituted the ban the first chance she had, and after the Supreme Court ruling, she grudgingly reinstituted the policy she fought against. It's obvious where her heart is -- and that's not with Americans in uniform.

Schlichter: “Kagan's empathy clearly did not extend to the officers that her school treated with such disrespect.” In a May 18 Washington Times op-ed, Kurt Schlichter, a right-wing lawyer, suggested that Kagan has “too little” empathy for the military and asserted that “there was only one reasonable conclusion” that a “young captain could draw” from Kagan's actions: "[T]hat Harvard and those within it hold those who wear a uniform of the United States military in contempt." From the op-ed:

Empathy would require that Ms. Kagan place herself in the position of the “despised and downtrodden,” as her mentor Justice Thurgood Marshall put it. And who could possibly be more despised than a United States Army officer assigned to recruiting duties at Harvard Law School?

Did Dean Kagan put herself in his place before enforcing her law school's repugnant ban on military recruiters? Did she imagine the feelings inside that young captain, perhaps limping from the fragments still in his leg from an improvised explosive device that hit his convoy outside Ramadi, as he walked through Harvard's gates? Did she consider the stares he drew at the training academy from the liberal elite, the palpable contempt directed at him as one whose mere presence Harvard had officially designated as morally unworthy?

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Did she put herself in the captain's place as he watched representatives of every other federal government agency treated with dignity and respect? Did she think about how there was only one reasonable conclusion that the young captain could draw - that Harvard and those within it hold those who wear a uniform of the United States military in contempt?

Ms. Kagan's empathy clearly did not extend to the officers that her school treated with such disrespect. The fact is that while she barely has any paper trail at all, her behavior at Harvard makes it safe to assume that what empathy she does have is reserved solely for the designated victim constituencies that pass muster within the Harvard Law School faculty lounge.

Kagan's support for the military is well established

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 veterans also stated that their support for military recruiting at the school “has not diminished our appreciation for Miss Kagan's embrace of veterans on campus.” The Harvard Law Record later reported on the veterans' letter, quoting Iraq veteran Geoff 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.”

Republican Sen. Brown: Kagan is “very supportive of the military as a whole.” The Hill reported on May 13 that Sen. Scott Brown (R-MA) stated after meeting with Kagan and discussing the military recruiter issue: "[I]t was very clear to me after we spoke about it at length that she is supportive of the men and women who are fighting to protect us and very supportive of the military as a whole." Brown added, “I do not feel that her judicial philosophy will be hurting men and women who are serving.”

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 “Don't Ask, Don't Tell” 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: It's “just wrong” that gays and lesbians “cannot perform what I truly believe to be the greatest service a person can give for their country.” 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 [against gay troops] more, not less, repugnant," a sentiment she reiterated in a 2005 letter offering “background” on the school's position on military recruiting on campus. In October 2004, Kagan reportedly said in protest of the ban on openly gay troops: “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.”

Military recruitment did not suffer during Kagan's tenure

Harvard's data show that Kagan's actions did not hurt military recruitment. The notion that military recruitment was hurt by Kagan's actions is contradicted by data Media Matters for America obtained from Harvard Law School's public information officer. The prohibition on Harvard Law's Office of Career Services (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.

Kagan did not ban military recruiters from Harvard Law campus

Harvard students had access to military recruiters during Kagan's entire tenure as dean. Contrary to the claim that Kagan “banned” military recruiters from Harvard Law School, throughout Kagan's tenure as dean, Harvard law students had access to military recruiters -- either through Harvard Law's OCS 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 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.

Former Harvard Law dean debunked claim that Kagan banned military recruiters. In a May 11 Wall Street Journal op-ed, Robert C. Clark -- Kagan's predecessor as dean of Harvard Law School -- explained:

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.

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.

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.

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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.

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.

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.

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.”