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Objections to Kagan

published July 15, 2010

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Senator McCain of Arizona is the latest Republican to publicly announce his intention to vote against Kagan. His announcement came in the form of an Op Ed piece in USA Today.

His explanation is disingenuous at best and flat out dishonest at worst. In it he continues to repeat the most pervasive of the criticisms against Kagan, and although widely repeated it bears little if any resemblance to fact. I'm speaking, of course, of the issues surrounding her denial of Harvard Law School's Office of Career Services (OCS) to the military because of the military's policy on homosexuality.

There are two common lines of attack that stem from this situation: First, that she broke the law, and second, that she is anti-military.

In order to understand what happened and why any claims that she broke the law are dishonest attacks, it's important to understand both the law in question and the timeline. The law at issue is 10 USC § 983, frequently referred to as the Solomon Amendment. The operative part of the law says in subsection 2(b) ''Denial of Funds for Preventing Military Recruiting on Campus.

- No funds described in subsection (d)(1) may be provided by contract or by grant to an institution of higher education (including any subelement of such institution) if the Secretary of Defense determines that that institution (or any subelement of that institution) has a policy or practice (regardless of when implemented) that either prohibits, or in effect prevents -

(1) the Secretary of a military department or Secretary of Homeland Security from gaining access to campuses, or access to students (who are 17 years of age or older) on campuses, for purposes of military recruiting in a manner that is at least equal in quality and scope to the access to campuses and to students that is provided to any other employer ''

It's important to note right off the bat that barring military recruiters from campus is not a violation of the law, period. As Dean of Harvard Law School, Elena Kagan could have barred all forms of military recruiting from the campus and the claim that she broke the law would still be dishonest. Of course, that's not what she did. It is up to the government to first make a finding that the recruitment practices at a given school fail to meet the standard and then to cut off funding - but even if that happens, nobody has broken the law.

But that's not the end of the story. Let's look at the timeline. The policy to ban military recruiters from the OCS predates Kagan's term as Dean of the school. For years, the school required military recruiters to work through student organizations instead of the OCS. It wasn't until 2002, the year before Kagan took over as Dean, that the Air Force objected. Rather than risk losing funding by fighting the Air Force's interpretation of the Solomon Amendment, Harvard decided to allow the military to use the OCS. This remained the policy of the school under Kagan until 2004 when the 3rd Circuit Court of Appeals issued a temporary injunction barring enforcement of the law. At that point, it was entirely rational for the Dean of Harvard Law School to believe that the Solomon Amendment no longer had any force or effect, and Kagan reinstated the policy that had been in place for years before her term as dean. For a United States Senator to say that someone relying on a 3rd Circuit decision on an issue that had not yet been addressed by the Supreme Court is breaking the law is dishonest.

When Kagan reinstated the old policy, she still allowed recruiters to operate on campus through student groups. The law does not require that the military recruiter have the exact same access to students, only that it is ''in a manner that is at least equal in quality and scope”. Determining what is and is not equal in ''quality and scope” can be difficult, but the fact that military recruitment increased during this period is certainly indicative.

Eventually the Supreme Court heard the case and ruled 8-0 that the law is constitutional, overruling the 3rd Circuit. At that point, Harvard once again permitted military recruiters to use the OCS. But even if it had not, neither Kagan nor the school could be said to be breaking the law. The law permits a school to deny military recruiters access to students, and both Vermont Law School and William Mitchell College of Law continue to do so.

As to the charge that Kagan is anti-military... I suppose reasonable people can differ on whether or not Kagan meant it when she publicly praised the military both as an institution and a career choice while serving as Harvard's Dean. As a veteran and an adamant opponent of the ''don't ask, don't tell” policy, I choose to take her at her word, but those who are inclined to distrust her from the outset will likely ascribe other motivations to her public remarks.

Senator McCain knows better. His justification for voting against Kagan has less to do with military recruiting than with a primary challenge from the right.

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