Elena Kagan’s most notable foray into public life was kicking military recruiters off of Harvard’s campus.
President Obama’s latest choice for the Supreme Court has held a number of high-profile jobs over the years, but she has left a relatively thin paper trail, with one major exception. As the dean of Harvard’s law school, Kagan fought to bar military recruiters from the university’s campus. Her reasoning? Even with two wars in progress, she contended, Don’t Ask, Don’t Tell should disqualify the US military from having any association with the school. “I abhor the military’s discriminatory recruitment policy,” she said, describing it as a “moral injustice of the first order.”
Critics say Kagan’s legal arguments on the matter are so preposterous that they raise doubts about her ability to serve on the bench. And indeed when the Supreme Court later rejected her position on military recruiting at Harvard, it did so unanimously.
Beginning in 2004, Kagan changed established Harvard policy and barred recruiters from the school’s career center. The Pentagon responded by invoking the Solomon Amendment, a 1994 law that explicitly requires universities that receive federal funding to allow military representatives at least as much access to campus as any other group. With Harvard’s $400 million in annual grants on the line, Kagan was forced to surrender.
But she kept fighting. Kagan and the university filed an amicus brief arguing that Harvard’s policy did not amount to discrimination against the military. The university, claimed the brief, does “not single out military recruiters for disfavored treatment: Military recruiters are subject to exactly the same terms and conditions of access as every other employer.
SOLICITOR GENERAL ELENA KAGAN NOMINATED TO HIGH COURT
Either way, the Supreme Court was not impressed. Not only did the justices dismiss Kagan’s arguments, not a single liberal on the court offered a word of support. Souter, Ginsburg, Breyer and John Paul Stevens (the man Kagan would replace), all agreed with the majority decision written by Chief Justice Roberts.