Elena Kagan's Position On Iraqi War In Question

Most prominently, a handful of Republican Senators and conservative commentators have attempted to portray Kagan as “anti-military” due to her opposition to “Don’t Ask Don’t Tell” during her tenure as Dean of Harvard Law School, citing her continuation of Harvard’s non-discrimination policy that required employers using the recruiting services provided by the Office of Career Services to agree not to discriminate based on sexual orientation or other criteria. Of course Kagan’s opposition to the policy was in no way anti-military -- just as opposition today from figures such as General Colin Powell or Joint Chiefs of Staff Chairman Admiral Mike Mullen is rooted in admiration for all those who serve, so too was Kagan’s. Indeed, Brigadier General Patrick Finnegan, dean of the academic board at West Point, described such characterizations of Kagan as “ludicrous.”

A common claim from these critics is that the military was “banned” from the campus altogether during Kagan’s tenure as Dean – in fact, not only was the military allowed to continue to recruit in classrooms on campus and through the Harvard Law Students Veterans Association, a review of the recruitment figures has shown that recruitment kept completely on pace with previous years during Kagan’s time. Even more absurdly, some have claimed that Kagan’s upholding of Harvard’s nondiscrimination policy somehow violated the law – in fact, there has never been a law requiring that campuses allow military recruiters, only that the government was empowered to deny federal funds if military recruiters were not given access, so this claim is preposterous on its face. As the New York Times reported, “Her management of the recruiting dispute shows her to have been, above all, a pragmatist, asserting her principles but all the while following the law.”

But again, these false talking points obscure the broader truth that throughout her career Kagan has been known for her admiration and support of those who serve our country. This view has been echoed by those who have met her even briefly, such as Republican Senator Scott Brown, as well as those who have known her for years such conservative Harvard Professor Robert C. Clark. See for yourself:

• Iraq War Veterans & Harvard Law Students Erik Swabb, Geoff Orazem, & Hagan Scotten: “During Her Time As Dean, [Kagan] Has Created An Environment That Is Highly Supportive Of Students Who Have Served In The Military.” “As Iraq War veterans who currently attend Harvard Law School, we believe that Flagg Youngblood's referring to Dean Elena Kagan as an ‘anti-military zealot’ is a gross mischaracterization (‘Solicitor general flimflam,’ Op-Ed, Friday). Like Mr. Youngblood, we support military recruiting on campus and hope that the Obama administration vigorously defends the Solomon Amendment. However, this position has not diminished our appreciation for Miss Kagan's embrace of veterans on campus. During her time as dean, she has created an environment that is highly supportive of students who have served in the military. For the past three years, Miss Kagan has hosted a Veterans Day dinner for all former service members and spouses. She pioneered this event on her own initiative, which has meant a great deal to students. Indeed, every year, Miss Kagan makes a point to mention the number of veterans in the first-year class during her welcome address to new students. Under her leadership, Harvard Law School has also gone out of its way to highlight our military service, publishing numerous articles on the school Web site and in alumni newsletters. These are not actions of an ‘anti-military zealot,’ and greater care should be exercised before someone is labeled as such. ERIK SWABB, GEOFF ORAZEM, HAGAN SCOTTEN” [Washington Times, 2/5/09]
   
• Brigadier General Patrick Finnegan, West Point Military Academy: It Is “Ludicrous That Anyone Would Criticize” Elena Kagan As “Antimilitary.”  “Conservative critics have derided [Kagan] as antimilitary and have predicted she would be an ‘activist judge’ bent on imposing her personal views on the Constitution. … But supporters of Kagan, the US solicitor general, say her role in the law school’s complicated history with the military has been oversimplified and misinterpreted. They also dismiss accusations of an antimilitary bias. . . . At West Point, Kagan gave a ‘memorable and sincere’ talk in which she thanked the cadets for volunteering to defend her freedom, said Brigadier General Patrick Finnegan, dean of the academic board. She also discussed Article VI of the Constitution, which requires American officers to swear a loyalty oath, not to a leader, but to the Constitution. Finnegan detected no hint of antimilitary bias from Kagan. ‘I’d find it ludicrous that anyone would criticize her in that way,’ he said.”  [Boston Globe, 5/12/10]
   
• Senator Scott Brown: Elena Kagan “Is Supportive Of The Men And Women Who Are Fighting To Protect Us And Very Supportive Of The Military As A Whole.” “Sen. Scott Brown (R-Mass.) met with Elena Kagan this afternoon and took the opportunity to ask about her attempt to bar military recruiters from Harvard Law School. Kagan's move to bar recruiters from a campus facility – because, she said, the military's ‘Don't ask, don't tell’ policy was discriminatory and ‘profoundly wrong’ – has emerged as the biggest conservative talking point against her nomination. Brown, however, seemed satisfied with the solicitor general's explanation. ‘She answered it, I felt, very honestly, and it 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 told reporters after the meeting. ‘I do not feel that her judicial philosophy will be hurting men and women who are serving,’ Brown added. The Massachusetts Republican would not say whether he will support Kagan.” [The Hill, 5/6/10]
   
• Conservative Professor Robert Clark, Former Dean of Harvard Law School: “It Would Be Very Wrong To Portray Elena Kagan As Hostile To The U.S. Military. Quite The Opposite Is True”   “With the announcement of Elena Kagan as nominee for the open seat on the Supreme Court, comments both sound and foolish are sure to flood the media. … In the foolish category, we are already hearing a replay of an attack critics used against her when she was being considered for her current position as solicitor general. That attack goes something like this: During her time as dean of Harvard Law School (2003-2009), Ms. Kagan showed herself to be antimilitary—an extremist bent on harming the military's efforts to hire some of the best law school graduates in the country. … As dean, Ms. Kagan basically followed a strategy toward military recruiting that was already in place. ...Outside observers may disagree with the moral and policy judgments made by those at Harvard Law School. But it would be very wrong to portray Elena Kagan as hostile to the U.S. military. Quite the opposite is true.” [WSJ, 5/11/10]
   
• Supreme Court Expert Tom Goldstein: “There Is No Evidence That Kagan Harbors Any Hostility Towards The Military.” “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. . . . There is no evidence that Kagan harbors any hostility towards the military. She hosted dinners at Harvard for veterans. Her email to the student body, quoted above, takes care to state her respect for the military, a topic about which she has spoken clearly. For example, when she was invited to give the distinguished Evening Lecture at West Point (available here), General Kagan explained that she was ‘in awe of [the cadets’] courage and dedication’ and recognized that ‘my security and freedom and indeed everything else I value depend on all of you.’ Kagan explained that in light ‘of the vital role the military plays in the well-being of the country,’ she was ‘grieved’ at the conflict between the military and law schools, including her ‘personal[]’ belief ‘that the exclusion of gays and lesbians from the military is both unjust and unwise.’ It was precisely because of her respect for the military that she ‘wish[ed] devoutly that these Americans could join this noblest of all professions and serve their country in this most important of ways.’” [SCOTUS Blog, 5/8/10]
   
• Walter Dellinger, Former Head of the Office Of Legal Counsel: “No Action Kagan Took As Dean Remotely Suggests Anything But The Greatest Respect For The Military”. “The nomination of an anti-military leftist to the Supreme Court would make for a riveting story. But in the case of Elena Kagan, it's just not true. When Kagan became dean of Harvard Law School in 2003, Harvard, like virtually every other law school, had a long-standing policy that the assistance of its placement office was available only to employers that would interview and consider hiring any student. … On the basis of this unremarkable application of an established anti-discrimination policy, Kagan has been accused of harboring an ‘anti-military’ animus. … [T]he anti-discrimination policies applied before, during and after Kagan's tenure as dean were in no way intended to single out the military but were applied in an evenhanded way to all prospective employers. … No action Kagan took as dean remotely suggests anything but the greatest respect for the military. Even when the law school's anti-discrimination policy effectively precluded placement-office assistance to military recruiters, she permitted student veteran groups to use law-school premises to facilitate military recruitment of Harvard students. At no point were military recruiters ever barred from the campus or banned from recruiting Harvard law students. And military veterans who entered Harvard Law School when Kagan was dean have praised her efforts to ensure they were welcomed and respected for their service.” [Washington Post, 5/14/10]
   
• Supreme Court Commentator Stuart Taylor:   Elena Kagan “Did Not ‘Ban’ Military Recruiters from the Campus” and Has Expressed Her Admiration for the Men and Women Who Serve.   In an October 2007 speech to the cadets at West Point, Kagan said, "I am in awe of your courage and your dedication," and, "I know how much my security and freedom and indeed everything else I value depend on all of you." Some facts: Kagan did not "ban" military recruiters from the campus, as many critics have erroneously said. Before, during, and after her deanship in 2003-2008, the Harvard Law School Veterans Association provided military recruiters access to classrooms and other campus space for recruiting events, with the law school's approval. [National Journal, 5/15/10]