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Myths and Falsehoods about Elena Kagan

Posted by on Jun. 27, 2010 at 1:52 PM
  • 6 Replies

Myth: Kagan banned military recruiters from Harvard

CLAIM: Kagan "defied" the law and banned military recruiters from Harvard. Phyllis Schlafly claimed in her March 31 syndicated column that Kagan "defied the Solomon Amendment" -- a statute requiring schools to provide the same access to military recruiters that they provide to other potential employers or lose federal funding. Fox News' Sean Hannity falsely claimed that Kagan led an effort to "kick military recruiters off of the college campus."

REALITY: Kagan consistently followed the law, and Harvard students had access to military recruiters during her entire tenure as dean. 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. Moreover, Kagan consistently followed existing law regarding access to military recruiters. Kagan briefly restricted (but did not eliminate) access to recruiters only after the U.S. Court of Appeals for the 3rd Circuit ruled that law schools could do so. As The New York Times explained in a May 6 article:

[Kagan's] management of the recruiting dispute shows her to have been, above all, a pragmatist, asserting her principles but all the while following the law, so that Harvard never lost its financing.


[E]ven when she ... 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. [emphases added]

Moreover, during her confirmation hearing as solicitor general in 2009, Kagan pledged to defend the Solomon Amendment.

CLAIM: Kagan's actions and statements on "Don't Ask, Don't Tell" and military recruiters were extremist and hypocritical. In an April 18 article, The Washington Post noted that Kagan had called the military's "Don't Ask, Don't Tell" policy "a profound wrong -- a moral injustice of the first order" and said her decision to continue allowing military recruiters to access Harvard's career center "causes me deep distress. ... I abhor the military's discriminatory recruitment policy." The Post quoted Ed Whelan suggesting that Kagan's quote was somehow "extreme":

"For someone who has been so guarded on so many issues, she used strikingly extreme rhetoric. 'Moral injustice of the first order' would seem fit for something like the Holocaust," said Ed Whelan, president of the conservative Ethics and Public Policy Center. "This is one issue that provides some jurisprudential clues as to how much her reading of the law will be biased by her policy views. If she is the nominee, that is an angle that I would press."

Whelan has separately claimed that the fact that Kagan relented to Bush administration pressure to allow military recruiters to access the career center is evidence that Kagan is a hypocrite who engaged in "cheap and contemptible moral posturing."

REALITY: Kagan's objections to DADT are mainstream, and her willingness to comply with and, as solicitor general, defend the Solomon Amendment demonstrates devotion to the rule of law. Kagan's moral objection to "Don't Ask, Don't Tell" is hardly "extreme." For example, Adm. Mike Mullen, the chairman of the Joint Chiefs of Staff, has suggested that the ban on openly gay service members compromises the military's "integrity." Moreover, Kagan's decision to abide by the Solomon Amendment doesn't indicate hypocrisy; it indicates a commitment to the rule of law.

FACT: Kagan allowed military recruiters access to Harvard Law School's Office of Career Services. In the 1980s and 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, 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.

FACT: After an appellate court -- including a Reagan appointee -- ruled Solomon Amendment unconstitutional, Kagan prohibited Harvard's career office from working with recruiters for one semester. In 2004, a three-judge panel of the 3rd Circuit held 2-1 in FAIR v. Rumsfeld that the Solomon Amendment violated First Amendment free-speech rights: "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." Judge Walter Stapleton, a Reagan appointee, joined the majority opinion in the case. Following the 3rd Circuit's ruling, Kagan revoked the military's exemption from Harvard's non-discrimination policy and reinstated the restrictions against military recruitment through OCS for one semester in 2005. After the Bush administration threatened to revoke Harvard's federal funding, Kagan once again granted military recruiters access to OCS. In 2006, the Supreme Court reversed the 3rd Circuit decision.

FACT: 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.


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.

FACT: Harvard's non-discrimination policy applied to all employers, not just the military. As Supreme Court expert and attorney Tom Goldstein noted 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."

FACT: Dozens of law professors, other law schools, and the Cato Institute argued against government's interpretation of Solomon Amendment. Kagan's legal actions and statements regarding "Don't Ask, Don't Tell" were by no means extreme. As Media Matters 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.

FACT: Numerous law schools restricted military recruiters' access because of the discriminatory "Don't Ask, Don't Tell" policy. 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.

FACT: Mullen said DADT compromises military's "integrity." While conservatives like Whelan have claimed Kagan's rhetoric opposing the ban on openly gay service members is somehow extreme, Mullen has similarly argued that the policy compromises the military's "integrity." In February 2 Senate testimony, Mullen stated:

Mr. Chairman, speaking for myself and myself only, it is my personal belief that allowing gays and lesbians to serve openly would be the right thing to do. No matter how I look at the issue, I cannot escape being troubled by the fact that we have in place a policy which forces young men and women to lie about who they are in order to defend their fellow citizens.

For me, personally, it comes down to integrity -- theirs as individuals and ours as an institution.

I also believe that the great young men and women of our military can and would accommodate such a change. I never underestimate their ability to adapt.

FACT: Kagan pledged to defend Solomon Amendment as solicitor general despite her personal views. In a written statement during her confirmation process for solicitor general, Kagan wrote:

As I stated at my confirmation hearing, I know well the facts and issues involved in Rumsfeld v. FAIR, 547 U.S. 47 (2006), and I feel confident in saying that had I been Solicitor General at the time that the 3rd Circuit held the Solomon Amendment unconstitutional, I would have sought certiorari in the Supreme Court, exactly as then-Solicitor General Paul Clement did. A fortiori, now that the Supreme Court has upheld the Solomon Amendment, if confirmed I would vigorously defend it against constitutional challenge. I would not recuse myself from participating in or personally arguing such a case because I would feel confident in my ability to supply such a defense given the responsibilities and role of the Solicitor General. I understand that role as representing the interests of the United States, not my personal views. I indeed think that I would enjoy, as well as be deeply honored by, the Solicitor General's position if I am fortunate enough to be confirmed. The advocate's role is frequently to put aside any interests or positions other than those of her clients. And as I hope I expressed at my confirmation hearing, I would take enormous pride in representing and advancing the interests of the United States as a client -- even if I would not myself have voted for every one of its statutes. [emphasis added]


by on Jun. 27, 2010 at 1:52 PM
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by Ruby Member on Jun. 27, 2010 at 1:53 PM

Myth: Kagan is "anti-military"

CLAIM: Kagan is an "anti-military loon" with "hostility to the U.S. military." Bill Kristol wrote on The Weekly Standard's blog that Kagan's position on military recruiters at Harvard reflected "hostility to the U.S. military," and Gateway Pundit blogger Jim Hoft called Kagan an "anti-military loon."

REALITY: Kagan's support of the military is well established. Kagan has repeatedly praised the military -- describing it as the "noblest of all professions" -- even while opposing the "Don't Ask, Don't Tell" policy. Military veterans at Harvard Law have affirmed Kagan's support for the military.

FACT: Kagan repeatedly praised military, cadets in West Point speech. In an October 17, 2007, speech at the United States Military Academy at West Point, New York, Kagan repeatedly praised the military, stating: "I am in awe of your courage and your dedication, especially in these times of great uncertainty and danger." She went on to say:

I don't accept many outside speaking invitations; this may be the only talk of this kind that I'll give this year. I accepted this invitation primarily to thank all of you senior cadets -- and to wish you godspeed as you go forward to serve your country and your fellow citizens in the greatest and most profound way possible.


In part because of these connections, still more because of the vital role the military plays in the well-being of our country, I have been grieved in recent years to find your world and mine, the U.S. military and U.S. law schools, at odds -- indeed, facing each other in court -- on one issue. That issue is the military's don't-ask-don't-tell policy. Law schools, including mine, believe that employment opportunities should extend to all their students, regardless of their race or sex or sexual orientation. And I personally believe that the exclusion of gays and lesbians from the military is both unjust and unwise. I wish devoutly that these Americans too could join this noblest of all professions and serve their country in this most important of all ways.


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.

FACT: 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 [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."

FACT: 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 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."


Myth: Kagan is "radical"

CLAIM: Kagan is a "radical" who is "outside the mainstream." Conservatives have indicated they will brand any Obama Supreme Court nominee -- including Kagan -- as a radical. For example, conservative activist Richard Viguerie has reportedly said, "The more quickly we can identify [the nominee] as an ideological liberal, the easier it is for us to communicate to the American people how radical the president is and the nominee is." Similarly, Fox News' Glenn Beck has said that President Obama is going to pick a "radical" nominee. In a March 19, 2009, Family Research Council Action press release, Tony Perkins claimed that Kagan "is well outside the mainstream of public opinion and to the left even of President Obama."

FACT: Kagan is considered to be relatively moderate. Reuters noted on May 7 that Kagan is "considered one of the more moderate choices on Obama's short list of potential court nominees."

FACT: Numerous conservatives have praised Kagan.

  • NRO's Daniel Foster praised Kagan as being "well-respected by just about everybody on both sides." In an April 9 post on The Corner, National Review Online news editor Daniel Foster wrote that Kagan "is well-respected by just about everybody on both sides."
  • Bush assistant AG: "Kagan combines principle, pragmatism, and good judgment better than anyone I have ever met." In a letter supporting Kagan's nomination for solicitor general, Jack Goldsmith -- former assistant attorney general for the Office of Legal Counsel during the Bush administration -- stated: "It might seem over the top to say that Kagan combines principle, pragmatism, and good judgment better than anyone I have ever met. But it is true."
  • Starr, Olson and bipartisan group of former solicitors general: Kagan held in "high regard" by "persons of a wide variety of political and social views." In a letter sent by people who "serv[ed] as Solicitor General over the past quarter century, from 1985 to 2009," Charles Fried, Kenneth Starr, Drew Days, Walter Dellinger, Seth Waxman, Theodore Olson, Paul Clement, and Gregory Garre stated:

The well-deserved stature that Kagan has achieved in the legal profession will enhance her tenure as Solicitor General, ensuring that, within the executive branch, her voice and the conclusions reached by the Solicitor General will be accorded the highest respect. The extraordinary skill she has demonstrated in bringing to Harvard an impressive array of new scholars, her ability to manage and lead a complex institution, and the high regard in which she is held by persons of a wide variety of political and social views, suggest that she will excel at the important job of melding the views of various agencies and departments into coherent positions that advance the best interests of the national government.

  • Former Bush lawyer Berenson lauded Kagan's "fair-minded consideration of competing views." From a letter by former Bush administration associate White House counsel Bradford Berenson supporting Kagan's solicitor general nomination:

Her legal acumen is more than equal to the task she faces, as reflected in her scholarship. The spirit of toleration and fair-minded consideration of competing views she brought to the Deanship reflect the sort of temperament and judgment that will inspire confidence in the Justices of the Supreme Court as well as the private parties with whom she will need to interact as SG. The same institutional loyalty that has enabled her to put Harvard Law School's interests ahead of her own will undoubtedly cause her to do likewise in service of the United States.

Steve Hayes: Kagan is "persuasive to people who might not otherwise be predisposed to agree with her." On the May 7 edition of Fox News' Special Report, Fox News contributor Steve Hayes stated that Kagan is "someone who can make convincing and compelling arguments and marshal her arguments in a way that is persuasive to people who might not otherwise be predisposed to agree with her. And I think you're seeing that to a certain extent in the sort of half-embrace that she's getting from some conservatives, particularly conservative academics."


by Ruby Member on Jun. 27, 2010 at 1:57 PM

and there's more, if anyone cares to check it out:

by on Jun. 27, 2010 at 2:01 PM

 You Are The Woman    #1 Trophy  You Rock  Bravo!  Laughing 1  Raise The Roof 1  

by Gold Member on Jun. 27, 2010 at 2:43 PM


by on Jun. 27, 2010 at 7:04 PM


by Ruby Member on Jun. 27, 2010 at 7:27 PM


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