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The Politics of Kagan and the Military

The main attack that appears to exist against Elena Kagan at the moment has to do with her actions as Dean of the Harvard Law School and policies concerning military recruiters.

The basic position is well represented by Newt Gingrich’s statement today Fox News Sunday (as transcribed by HuffPo):

“I think the president should withdraw it,” he said. “You don’t need a 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.”

Now, a fair-minded assessment of the public record on Kagan and this subject makes it rather difficult to conclude that Kagan is “anti-military” but, rather, that she was opposed to the don’t ask/don’t tell policy.  Now, there is little doubt that this will be used to score points in some corners of our politics.  However, given that the sitting Secretary of Defense (you know, the one originally appointed by George W. Bush) wants the policy to go away, then it is unclear that we have some evidence of radicalism on Kagan’s part.  And indeed, given shifting public attitudes on homosexuality in general, I am not so sure that the political points to be scored here are as significant as some Republicans may think.   In fact, a recent poll places public support for homosexuals serving openly in the military at 75%.

In terms of what Kagan actually did as Dean, I would recommend Robert Clark’s piece in the WSJ.  Clark was Kagan’s predecessor as Dean and also one of her former professors:  Kagan and the Military: What Really Happened.

To wit:

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.

[...]

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.

If anything, it needs to be made clear that there is a difference between not allowing military direct access to resources of the Law School and whether or not the military was allowed to recruit on Harvard’s campus.  Indeed, I was watching an interview with Mitch McConnell on MTP this morning, he seemed to conflate campus, writ large, and the Law School.  These are not the same thing.  Indeed, a lot of the reporting is mushy on this point, as it often makes it sound as if Kagan was blocking the military from Harvard itself.  Although, in fairness, several have noted that the military did recruit elsewhere on the campus.

Still, from a purely political point-of-view, it seems to me that the entire issue is a weak one and it will mainly resonate with people who are already predisposed to oppose any Obama nominee, but will have very little significance in the overall process.

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About Steven L. Taylor
Steven L. Taylor is Professor and Chair of Political Science at Troy University. His main areas of expertise include parties, elections, and the institutional design of democracies. He is the author of Voting Amid Violence: Electoral Democracy in Colombia and is currently working on a comparative study of the US to 29 other democracies. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging at PoliBlog since 2003. Follow Steven on Twitter

Comments

  1. TangoMan says:

    Now, a fair-minded assessment of the public record on Kagan and this subject makes it rather difficult to conclude that Kagan is “anti-military” but, rather, that she was opposed to the don’t ask/don’t tell policy.

    In order to perform a fair-minded assessment of this sort one has to actually look at the sophistication of thinking displayed by the critic. I think that many people familiar with the military would be comfortable taking the position that the military is a culture that is distinct and that it isn’t a complete reflection of the broader, or host, culture from which its members are drawn. So, when, in the context of this culture, the issue of “Don’t Ask, Don’t Tell” arises, the arguments for and against are anchored on different philosophical and practical issues than the same issue being discussed in the liberal enclave of Cambridge. Did Kagan show any understanding of this or did she just hold her position in order to please her stakeholders?

    If she showed no recognition of this point, then that doesn’t bode well for her performance on future cases that may come before the court and have bearing on military conduct or culture. If she’s of the mindset that the military MUST completely replicate the culture that shapes Kagan’s insulated little world, then her viewpoint will likely do damage to the nation’s interests.

    given that the sitting Secretary of Defense (you know, the one originally appointed by George W. Bush) wants the policy to go away

    I don’t recall the SecDef making that opinion known contemporaneously to Kagan’s pronouncements. If he did, then your point might have some merit. The fact that he serves at the pleasure of a liberal President might have some bearing on the SecDef’s position today.

    All that said, I’d rather have a weak intellect like Kagan replacing Stevens rather than someone who could do more damage to the nation with their liberal viewpoints and who is better equipped to make a persuasive case to convince some of the other justices to shift their votes.

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  2. I don’t recall the SecDef making that opinion known contemporaneously to Kagan’s pronouncements. If he did, then your point might have some merit. The fact that he serves at the pleasure of a liberal President might have some bearing on the SecDef’s position today.

    Yes, but the politics of Kagan are the politics of right now and it is difficult to cast Kagan as “anti-military” if the SecDef is basically in agreement with her on the issue of DADT.

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  3. anjin-san says:

    I think that many people familiar with the military would be comfortable taking the position that the military is a culture that is distinct and that it isn’t a complete reflection of the broader, or host, culture from which its members are drawn.

    I am sure back in the 40s when a lot of folks were saying blacks in the military should only be allowed latrine duty or KP, they made a very similar point.

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  4. TangoMan says:

    Yes, but the politics of Kagan are the politics of right now and it is difficult to cast Kagan as “anti-military” if the SecDef is basically in agreement with her on the issue of DADT

    Certainly true on the surface, but the point I wanted to convey with my initial comment was how and why Kagan came to hold that position. The fact that at present she and SecDef both hold the same position doesn’t tell us much of substance on the issue of how she thinks.

    Sometimes it helps to use extreme examples to make a point, so here’s one. Environmentalism is very important today and it was a mostly fringe position half a century ago, yet Hitler was really into environmentalism. Does that fact that Hitler and environmentalists holding the same position tell us anything about how they arrived at their positions? I think not.

    If Kagan was advocating for full gay integration back in 2003 and in 2006 SecDef Gates was opposing, then we should be looking at the question of how they each reasoned to get to the positions that they held. If SecDef laid out his reasons for opposing and Kagan had been a Justice and had been asked to decide the issue of DADT, it’s likely that she would have overruled the SecDef objections and voted to eliminate restrictions because she held her view to be more important than the view of a person who is more familiar with the ramifications associated with the issue.

    By examining how she thinks we get a clearer picture of her analytic sophistication. If she was holding her position on DADT because it appealed to the sensitivities of her Harvard community and she attached no importance to the viewpoint of how professionals, and/or, leadership in the military thought it would impact the culture specific to the military, then that paints a pretty dim picture of Kagan’s intellectual life.

    That said, I’m happy for a dimmer liberal bulb to be elevated to the Court than the alternative of a brighter bulb.

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  5. Eric Florack says:

    Now, a fair-minded assessment of the public record on Kagan and this subject makes it rather difficult to conclude that Kagan is “anti-military” but, rather, that she was opposed to the don’t ask/don’t tell policy.

    Bandwagon arguments aside, a casual observation of the rulings of the Supreme Court in the matter would suggest that they saw the assessment of the speaker (and others) as eminently fair.

    That said, I think Tangoman has it nailed.

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  6. Grewgills says:

    That said, I’m happy for a dimmer liberal bulb to be elevated to the Court than the alternative of a brighter bulb.

    Her intellectual heft is not a criticism that any of her rational critics on either side of the aisle have made. Regardless of ideological positions virtually everyone recognizes that she is brilliant.

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  7. An Interested Party says:

    All that said, I’d rather have a weak intellect like Kagan replacing Stevens rather than someone who could do more damage to the nation with their liberal viewpoints and who is better equipped to make a persuasive case to convince some of the other justices to shift their votes.

    That said, I’m happy for a dimmer liberal bulb to be elevated to the Court than the alternative of a brighter bulb.

    My my, such sour grapes…I’m sure some liberals comforted themselves in this same way when Clarence Thomas got on the Supreme Court…

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  8. TangoMan says:

    Her intellectual heft is not a criticism that any of her rational critics on either side of the aisle have made.

    I believe you to be mistaken on your claim. There have been some pretty trenchant criticisms of Kagan’s abilities as SG when she argued Citizens before the Court. Some of the legal blogs examined the reaction of the Justices via the questions asked of her. She didn’t represent herself that well.

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  9. anjin-san says:

    She didn’t represent herself that well.

    I would imagine that the learning curve for the job of SG is extraordinarily steep. Think for a moment who one is getting one’s feet wet in front of. Even if this is true, it in no way proves a lack of brainpower. You have to do better than that.

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  10. TangoMan says:

    I would imagine that the learning curve for the job of SG is extraordinarily steep. Think for a moment who one is getting one’s feet wet in front of. Even if this is true, it in no way proves a lack of brainpower. You have to do better than that.

    She loses either way on this count. 1.) If she really was a top notch intellect** then she’d have recognized her own shortcomings and delegated the case to a competent staff attorney. 2.) She didn’t recognize her own deficiencies and this lack of self-awareness reflects poorly on her as does her sub-par performance.

    **Putting partisan battles aside, shouldn’t that really be the goal here?

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  11. anjin-san says:

    1.) If she really was a top notch intellect** then she’d have recognized her own shortcomings and delegated the case to a competent staff attorney. 2.) She didn’t recognize her own deficiencies and this lack of self-awareness reflects poorly on her as does her sub-par performance.

    Spoken like someone who is too timid to jump into the deep end of the pool. This country was not built by people who spent every day of their lives playing it safe.

    Besides, you have not even come close to proving that her performance was in fact, sub-par. All you have done is say you read somewhere on a blog that it was. A pretty sub-par performance on your part I would say. This is not Fox News, where you can simply say “some are saying” and a bunch of peanut heads will take that as the gospel…

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  12. Grewgills says:

    Tango,
    So some disagree with how she argued a single case that she was dropped into relatively late in the game, therefor she is a dim bulb. That’s pretty weak tea.
    Summa from Princeton
    Magna from Harvard for her JD
    Tenured at U of Chicago Law School in 4 years
    Everywhere she has studied or worked her supervisors, colleagues, and students (regardless of ideology) raved about her sharp intellect
    Yup, she’s and idiot.

    Do you really believe what you write or are you just trying to provoke a reaction?

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  13. [...] that AP merely rewrote his blog post.   OTB dutifully passed on Somin’s analysis, with a follow-up two days before AP’s story.  I’m afraid AP doesn’t deserve much credit [...]

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