I first met Elena Kagan the night before my first classes at Harvard Law School. She attended the 1L dinner in a sanctified exhibit room in Langdell Library. She was very pleasant — she ended up sitting next to me, and since she was from Chicago, the talk turned to baseball. Things got a bit strained, though, when our chat turned toward the setting itself. She was waxing poetic about the beauty of this burnished-mahogany, glass-case with rare manuscripts surrounding. Trying to get a laugh, I replied, “Yup, it reminds me of Harry Potter.” She was not amused.
She was an amusing dean, however. She got along with virtually everyone, and she built us an ice-skating rink (underused), as well as supplying morning coffee outside the classrooms. She brought in Justice Antonin Scalia to speak.
In short, she was great as a dean.
She’ll be lousy as a judge.
I’ll just focus on one incident that truly defines who Elena Kagan is when it comes to policy: the Solomon Amendment controversy. During my first year, 2004-2005, she sent us the following letter:
To all members of the HLS community:
I write to let you know that this fall, the Office of Career Services (OCS) will provide assistance to the U.S. military in recruiting students, as it has done for most of the past three years. This email gives newcomers to our community some background on this issue, describes recent developments affecting it, and states my own views on the matter.
The Law School’s anti-discrimination policy, adopted in 1979, provides that any employer that uses the services of OCS to recruit at the school must sign a statement indicating that it does not discriminate on various bases, including sexual orientation. As a result of this policy, the military was barred for many years from using the services of OCS. The military retained full access to our students (and vice versa) through the good offices of the Harvard Law School Veterans Association, which essentially took the place of OCS in enabling interviews to occur. In 2002, the then-Dean of the Law School, Robert Clark, in consultation with other officers of the University, reluctantly created an exception from the law school’s general anti-discrimination policy for the military. The Dean took this action because of a new ruling by the Department of Defense stating that unless the Law School lifted its ban, the entire University would lose federal funding under a statute known as the Solomon Amendment. (This amendment denies federal funds to an educational institution that "prohibits or in effect prevents" military recruiting.)
The Law School’s own resources were not at risk: we do not receive any of the kinds of federal funding that the Amendment threatens to cut off. The University, however, receives about 15% of its operating budget from the federal government, with the Medical School and the School of Public Health receiving by far the largest share of this money for scientific and medical research. The Dean determined (as did all other law school deans) that he should make an exception to the School’s anti-discrimination policy in the face of this threat to the University’s funding and research activities.
I continued this exception in effect, for the same reasons, through the 2003 and 2004 fall recruiting seasons. In the meantime, a consortium of law schools and law school faculty members (FAIR) brought suit challenging the Defense Department’s policy on constitutional grounds. Harvard Law School is not a member of FAIR, but 54 faculty members, including me, filed an amicus brief in that suit articulating different, statutory grounds for overturning the Department’s policy. In November 2004, the Court of Appeals for the Third Circuit issued a decision in the FAIR case, holding that the Defense Department’s policy violates First Amendment freedoms. The Supreme Court granted review of this decision; the Third Circuit’s ruling is stayed pending the Supreme Court’s decision, which is expected later this year. (Much the same group of HLS faculty members, including me, will file an amicus brief tomorrow in the Supreme Court litigation. I also understand that the University expects to join an amicus brief filed by Yale and other universities.)
Although the Supreme Court’s action meant that no injunction applied against the Department of Defense, I reinstated the application of our anti-discrimination policy to the military (after appropriate consultation with University officials) in the wake of the Third Circuit’s decision; as a result, the military did not receive OCS assistance during our spring 2005 recruiting season. My hope in taking this action was that the Department would choose not to enforce its interpretation of the Solomon Amendment while the Third Circuit opinion stood. Over the summer, however, the Department of Defense notified the University that it would withhold all possible funds if the Law School continued to bar the military from receiving OCS services.
As a result, I have decided (again, after appropriate consultation) that we should lift our ban and except the military from our general non-discrimination policy. This will mean that the military will receive OCS assistance during the fall 2005 recruiting season. I have said before how much I regret making this exception to our antidiscrimination policy. I believe the military’s discriminatory employment policy is deeply wrong – both unwise and unjust. And this wrong tears at the fabric of our own community by denying an opportunity to some of our students that other of our students have.
The importance of the military to our society – and the great service that members of the military provide to all the rest of us – heightens, rather than excuses, this inequity. The Law School remains firmly committed to the principle of equal opportunity for all persons, without regard to sexual orientation. And I look forward to the time when all our students can pursue any career path they desire, including the path of devoting their professional lives to the defense of their country.
This is, in short, mainly nonsense. She decided not to comply with the law because she was hoping that the Defense Department would be okay with her failing to comply with the law. More sinister was her use of the bully pulpit to preach for gays in the military. Any doubt that all members of the HLS community would agree with her never entered her mind.
She must have been surprised when I forwarded that email to Michael Medved and asked her to appear with me on Michael’s show to debate her. She refused without explanation. Instead, I ended up debating a member of the Lambdas, a gay activist group on campus.
Here’s why the incident is important: when Elena Kagan is in a position of power, she is more than willing to use it to seek her own political ends. The law here was quite clear: the injunction against the military was stayed by the Supreme Court, which meant that she was to comply with the law. She refused. Then she explained by appealing to her own moral principles.
This is undoubtedly how she will approach cases, as the rest of her relatively skimpy record attests.
Kagan will call to her defense supposed “conservatives” like Charles Fried (a nice guy and my contracts professor), who is not truly conservative – he believes strongly in adherence to stare decisis in virtually every case and relies on the pie-in-the-sky fiction that the law is like a great web of solid decisions extending back over history, evolving over time. He’s a common law devotee, and true constitutional construction is anything but common law in terms of orientation (it is interpretation of that which has been codified, not bringing one’s vague moral code to bear). Don’t be fooled.
She’ll also point out that she supported the Federalist Society on campus. There is truth to this. But so what? Had she not, she would have been a rotten dean, since FedSoc is one of the largest, if not the largest, student group on campus.
One more incident sticks in my mind from my time at Harvard Law. On the opening day of school, we were ushered into the gloriously overripe Memorial Hall to hear her speak. She got up and told us that the competition was over; there was no need to be cutthroat.
Then she told us that we’d be the future leaders, making policy. She listed off the number of Harvard Law grads who were in the Senate, in the House, in prior and current presidential administrations. And on courts.
That was the feeling with which we were being smothered: the feeling that we were smarter, more qualified, and morally wiser than the rest of the country, and that we had better use those gifts in whatever capacity we could, including the judiciary.
That’s who Dean Kagan was. That’s who Solicitor General Kagan is. That’s who
Supreme Court Justice Kagan will be.
Cartoon courtesy of Brett Noel
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