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Harvard Law's Profile in Courage

A Commentary By Debra J. Saunders

Friday, May 14, 2010

Forget "advise and consent." When President Obama nominated U.S. Solicitor General Elena Kagan to serve on the U.S. Supreme Court, the Dems just wanted a good liberal who won't embarrass them during Senate confirmation hearings, while the Repubs started trying to figure out whether it's safe to try to Bork her.

Why bother? With 59 Democrats in the Senate and a record of working well with conservatives as Harvard Law School dean, Kagan seems destined to land on the Big Bench.

The most the opposition can do is make Kagan squirm -- and squirm she should.

Let her explain all of the thinking that went into the Harvard Law School "anti-discrimination" policy that banned military recruiters from campus because of the federal policy of "don't ask, don't tell."

So far, the best defense came from her predecessor at Harvard, Robert C. Clark, in Tuesday's Wall Street Journal. Clark wrote that the law school's recruitment policy, adopted in 1979, required employers who wished to recruit students to pledge not to discriminate based on race, gender or sexual orientation, but it never kept military recruiters off campus. The policy did deny the military the ability to recruit through the school's Office of Career Services, but allowed a student veterans organization to bring in military recruiters.

Sic transit academia. Clark wrote that policy's "symbolic effect" was "important," but its "practical effect on recruiting logistics was minimal."

I'll put Clark's views in plain English: During most of Kagan's tenure from 2003 to 2009, Harvard University gave the military a one-finger salute, then let recruiters in through the back door.

You're supposed to feel better about the "ban" -- I should note Kagan has called it a "ban" -- because it didn't really ban anything.

When the Bush administration threatened to withhold federal funds from Harvard University in accordance with the 1996 Solomon Amendment -- which requires colleges to grant military recruiters the same access as other employers or forfeit federal funds -- the law school relented and opened the door for the university to continue receiving federal funds.

But Kagan did not go gently. She sent out a strongly worded memo denouncing the government's "don't ask, don't tell" policy as "deeply wrong -- both unwise and unjust." No doubt, the memo had an important symbolic effect as well.

Kagan also signed a law school professors' amicus brief that argued the Solomon Amendment abridged free speech rights, which the U.S. Supreme Court soundly rejected 8-0 in 2006.

In 2007, Kagan delivered a speech at West Point. She told cadets she was "in awe of your courage and dedication" -- proof, say supporters, that she supports the military.

That's big of her. She backed a policy that marginalized men and women carrying out a law that was enacted by her old boss, President Clinton, and remains in force under the Obama administration. The law school picked on people in no position to fight back.

She was a bully in an ivory tower, and she didn't even know it.

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