Elena Kagan’s treatment of military recruiters while dean of Harvard Law School was supposed to be an insignificant blip during her Supreme Court confirmation. Vice President Joe Biden, for instance, brushed aside the suggestion that she did anything wrong in a recent TV interview.
But a closer look at the timeline of events reveals Kagan mounted an unprecedented legal challenge to bar recruiters from visiting the Cambridge campus.
Today the Washington Post adds new details of the struggle Kagan faced: appeasing gay activists on campus vs. satisfying the military’s desire to recruit top talent. The article sheds light on Kagan’s interactions with the Harvard Law School Veterans Association.
Author Amy Goldstein introduces new information to the story through a series of interviews with former students, but also leaves out some important facts.
The Harvard Law School website has a treasure trove of information that spells out exactly what happened — and more importantly, when it happened — during Kagan’s time as dean.
The first myth, taken verbatim from Goldstein’s article: “Kagan inherited the recruiting controversy when she became dean in 2003.” That’s simply not true. In reality, Kagan inherited a policy from former Dean Robert Clark that gave military recruiters full, unfettered access to campus. Clark reversed Harvard’s long-standing policy opposing military recruiters on July 29, 2002, because the U.S. Air Force threatened the university’s federal funding two months earlier. It’s spelled out in detail in a Harvard news release.
The second (and more important) myth involves what happened after the 3rd U.S. Circuit Court of Appeals ruled on the constitutionality of the Solomon Amendment, a law Congress passed in 1996 giving the Pentagon the authority to deny federal funds to universities that prohibit military recruitment on campus. The appeals court, on Nov. 29, 2004, instructed a district court in New Jersey to issue a preliminary injunction suspending enforcement of the law.
Goldstein writes: “In November 2004, the U.S. Court of Appeals for the 3rd Circuit said the law linking federal aid to recruiting help was unconstitutional. Kagan announced that Harvard would no longer provide such help.”
What Goldstein fails mention is that the court’s decision didn’t even apply to Massachusetts, which is located in the 1st U.S. Circuit. This is the same mistake Biden made in his interpretation of events.
In other words, Kagan was under no legal requirement to reinstate Harvard’s ban on military recruiters. She made the decision on her own.
Sen. Jeff Sessions (R-AL) took note of the left’s desire to ignore the facts. He said on Monday:
I think it’s time we get these facts straight. It is a significant matter, a very significant matter, and it is a matter of significance such that whoever comments about it, whether it’s the Vice President of the United States even, they should be accurate.
As more details emerge about this episode in Kagan’s career, it’s imperative the Senate Judiciary Committee press her on it.