Published May 13, 2010
Elena Kagan may be a brilliant constitutional scholar and first-rate legal mind — but if she is, she has done a mighty fine job of hiding her intellectual light under a bushel. She has left almost no paper trail and has made no significant, or even particularly notable, contributions to our understanding of law, legal theory, or the Constitution. She appears to have been a bright, able, and well-liked dean of Harvard Law School. But President Obama's claim that “Elena is widely regarded as one of the nation's foremost legal minds” is — let's be generous here — quite an overstatement.
There is, however, one issue on which Kagan has planted her flag. As dean, Kagan created roadblocks for the military in its effort to recruit on Harvard's campus because of the policy to keep opening gay people from serving in the military.
“I abhor the military's discriminatory recruitment policy,” Kagan wrote in 2003. It is a “profound wrong — a moral injustice of the first order.” She went on to say that, “I believe the military's discriminatory employment policy is deeply wrong — both unwise and unjust.”
These are hardly the words of an individual who has shown an “openness to a broad array of viewpoints,” who has demonstrated “fair-mindedness,” or who has the habit of “understanding before disagreeing,” which is how Obama describes Kagan. One may believe (as I now do) that it is right to repeal Don't Ask, Don't Tell while still acknowledging the arguments that led the military to embrace the policy.
In any event, Kagan followed through on her beliefs. As dean of Harvard Law School, she signed her name to an amicus brief in support of a lawsuit challenging the 1996 Solomon Amendment, which bans federal funding to universities that refuse to allow military recruiters on campus. The constitutional and statutory arguments made by Kagan and others were unanimously rejected by the Supreme Court.
On this matter, and on this matter alone, Kagan decided to play the role of political activist. And the notion that Kagan basically followed a strategy toward military recruiting that was already in place is simply wrong. In 2004, Kagan reinstated Harvard's prior policy banning the military from using the main career office while permitting access through the student veterans group. As my Ethics and Public Policy Center colleague Ed Whelan puts it, “it appears that Kagan's decision to bar military recruiters from using the law school job's office was, in practice, the substantial equivalent of kicking them off the campus altogether. By rough analogy: Kagan didn't even permit military recruiters on the back of the bus; rather, she told them to go hitch a ride.”
It's revealing, is it not, that Kagan directed all of her wrath at the military rather than the Clinton administration, where she worked as both associate counsel to Bill Clinton and then as deputy assistant to the president for domestic policy; or Congress, which after all were responsible for passing and signing into law the Solomon Amendment.
It's certainly true that both President Clinton and Congress were reflecting the views and preferences of the military. Still, the executive and legislative branches were the action-forcing bodies when it came to passing a policy Kagan characterized in extraordinarily harsh language — yet she uttered nary a word of condemnation against either of them. It was the military, and only the military, that was the object of her furious assault.
One can draw some reasonable inferences from this fact.
Peter Beinart, the former editor of the liberal New Republic magazine, drew this conclusion from Kagan's actions:
If Solicitor General Elena Kagan gets the nod, conservatives will beat the hell out of her for opposing military recruitment on campus when she was dean of Harvard Law School. And liberals should concede the point; the conservatives will be right.
The United States military is not Procter & Gamble. It is not just another employer. It is the institution whose members risk their lives to protect the country. You can disagree with the policies of the American military; you can even hate them, but you can't alienate yourself from the institution without, in a certain sense, alienating yourself from the country. Barring the military from campus is a bit like barring the president or even the flag. It's more than a statement of criticism; it's a statement of national estrangement.
What was really on display in Harvard Law School v. Military Recruiters was the clash of two institutions: the academy, where Kagan has spent most of her adult life (Princeton University, the University of Chicago, and Harvard Law School); and the United States armed services.
Dean Kagan was mirroring the ethos of the institution she represented and that appears to have profoundly shaped her views and sensibilities. And among the characteristics of America's universities in general, and its Ivy League schools in particular, the military is not particularly well regarded or particularly well treated.
It is ironic that President Obama, who argues that a “keen understanding of how the law affects the daily lives of the American people” is an important qualification for a Supreme Court justice, would nominate someone who looks down on the public institution the American people most look up to: the military. (I don't find persuasive the claim by Kagan supporters that she hates the sins of the military but loves the sinner, given that her rhetorical attacks were isolated on the armed services rather than on politicians whose support she might eventually need. And I rather doubt the military felt the soothing, warm embrace of Dean Kagan, either.)
As between Harvard and the Army, as between Princeton and the Marines, most of the public, I think, will side with the latter. They comprise, after all, an institution that merits our esteem. The military is open to new thinking and encourages debating different ideas. It believes in performance and accountability. It foregoes moral preening. It has by and large created racial harmony within its ranks by not obsessing on racial differences. And while acknowledging that our country is far from perfect, they have veneration for America and its achievements.
The contrast between the military and some of our elite universities therefore could hardly be more dramatic. Mr. Obama has nominated for the Supreme Court a person who sided with the latter against the former.
Welcome to Elena Kagan's America.
Peter Wehner is a senior fellow at the Ethics and Public Policy Center in Washington, D.C. He served in the Bush White House as director of the office of strategic initiatives.