That’s the title of the Washington Post’s front-page story about Elena Kagan’s treatment of the military at Harvard. My reaction is, of course she did.
Ambitious leftists with legal training always pursue at least two paths. They vote “present” on tough bills; they are “for it before they were against it;” and they would have voted with the majority if it was close, but thought the minority had the better argument.
In this instance, Kagan pursued the path of not allowing the military to recruit its law students on an equal basis with all other potential employers. And she did so in the face of a law that prohibited such discriminatory treatment. At the same time, the Post reports, she asked the small group of military veterans in the student body to arrange for interested students to have recruiting interviews.
The student-veterans declined. One of them explained that he did not want to be a party to “ushering in the military through the back door.” “If you’re going to take a stand against [don't ask, don't tell], take it; don’t play games,” he argued.
According to the Post, this was a first year student. Plainly, he had not yet learned the ways of Harvard and of the modern liberal lawyer.
From the Post’s article, something of an apology on Kagan’s behalf, we also learn that Harvard may well have been the only law school that stopped welcoming military recruiters after the Third Circuit declared the Solomon Amendment unconsititutional. The Third Circuit’s order was stayed pending appeal to the Supreme Court and thus had no legal effect.
In the Supreme Court case, Kagan signed on to a brief attacking the constitutionality of the Solomon Amendment [see correction below]. The position she espoused was so weak that not one Supreme Court Justice adopted it. The constitutionality of the Solomon Amendment was upheld by a unanimous vote.
The Post also offers us this glimpse of Kagan:
One alumnus, at the time a few months into his first year of law school, remembers asking the dean whether the law linking federal aid to military recruiting might have an analogy: the Federal Highway Administration did not give states money if their legal drinking age was lower than 21. The students broke into laughter. Kagan bristled, saying that never before as dean had she felt mocked, according to several people who were there.
“The room dropped several degrees, and we had to sort of defuse the situation,” said the student, who was a leader of the group and is now a federal employee. He assured Kagan that the laughter was not directed at her.
I guess it’s difficult to have a sense of humor when you’re busy triangulating yourself on an issue this important to you.
CORRECTION: I should have remembered, as Scott reminds me, that the brief Kagan signed in the Solomon Amendment case argued that law schools didn’t violate the Solomon Amendment because they treated the military the same as they did other employers. It was an argument confined to the statutory language of the amendment. The Supreme Court blew it off in the first few pages of its analysis.