Kagan was wrong to oppose military recruiting, her defenders are getting it wrong

President Obama’s Supreme Court nomination of Elena Kagan is expected to breeze through the Senate, largely because of the absence of a “paper trail” –written opinions that a nominee who is a judge would have left for inspection. For example Republican opposition to Sonia Sotomayor crystallized around her opinion in the New Haven firefighter suit, which was wrongly characterized as Sotomayor favoring unqualified minorities over hard-working qualified whites. Kagan has left no signed opinions to be swift-boated about.


Her only sin, it appears, is to have refused to allow Harvard Law School, which she headed, to cooperate with military recruiters because the military discriminated against gays with its “Don’t ask, don’t tell” (DADT) policy.


Administration officials give an energetic lawyerly defense of Kagan’s position: she didn’t draft the policy and it was in place before she became dean. The military was allowed to recruit at Harvard, they just couldn’t get help from the law school’s career services office.


Kagan explains that DADT discriminates against gays. Surely it does. She opposes it. So does JCS Chairman Admiral Mike Mullen and probably the 90 percent of the military under the age of 25. So do I. So what.


DADT is not—and never was—merely anti-gay policy of bigoted generals. It was the law of the land, enacted in 1993 to prevent President Clinton from allowing openly gay people to serve. When Harvard—and Kagan—opposed cooperation with military recruiters they were opposing legitimate national defense activity, being carried out in accordance with the law.


Or perhaps Harvard policy trumps law? I hope that’s not the explanation of a Supreme Court nominee. Stay tuned.

Read The Ethics Challenge: Strengthening Your Integrity in a Greedy World

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4 Responses to “Kagan was wrong to oppose military recruiting, her defenders are getting it wrong”

  1. Judith Ellis Says:

    Thanks, Bob. Your post is succinct and informative. I don’t know much about Kagan but this is a good start.

  2. Ethics Bob Says:

    There’s an excellent piece in today’s WSJ op-eds by her predecessor as law school dean. It explains what happened–doesn’t change my opinion about her being wrong, but worth reading anyway–it may help you sort it out: http://online.wsj.com/article/SB10001424052748703880304575236502953055276.html

  3. Ed Stern Says:

    1. You wrote: “When Harvard—and Kagan—opposed cooperation with military recruiters they were opposing legitimate national defense activity, being carried out in accordance with the law.”
    2. You wrote: “The military was allowed to recruit at Harvard, they just couldn’t get help from the law school’s career services office.”
    3. You wrote: “…perhaps Harvard policy trumps law?”
    In response, I offer:
    1. Opposition to a government policy is not a shame or a horror. Usually, a big portion of the Congress and the public oppose a policy.
    2. Oh my, the Harvard Law School’s career services office didn’t help the military recruiting. Did that office fail to carry out a legal obligation?
    3. The lack of cookies and milk from the career services office does not support the mocking rhetorical question: “…perhaps Harvard policy trumps law?” It does support a view that they were not as hospitable as many would like them to be to the U.S. military. That would be true.

  4. Ethics Bob Says:

    I agree, there’s no problem with opposing government policy. I opposed many when I was in government and still do. In fact I oppose many laws, too, although I feel bound to follow them.

    But Kagan’s Law School was opposing the military for following the law, a matter that the military had no choice in. So why did she do it? That’s what I’d like to hear. I’m not optimistic that I’ll like her answer, but I’d like to hear it, because I believe that in general all Americans have an obligation not to interfere with the military as it carries out its mission legally.

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