Kagan the Law Breaker

Do you believe an individual who willfully violates federal law is capable of refereeing that same law?

If you answered no, then you need to contact members of the Senate, express support for a filibuster of Elena Kagan’s Supreme Court nomination, and urge an eventual “NO” vote on President Obama’s high-court pick.

As the first oppositional witness summoned to testify before the Senate Judiciary Committee, allow me to explain.

While presiding over Harvard Law School, Elena Kagan proudly exclaimed she deliberately violated federal law.  Moreover, the law Dean Kagan intentionally transgressed, the Solomon amendment, has the Supreme Court’s unanimous constitutional blessing.

“In order for a law school, and its university, to receive federal funding,” per the court’s March 2006 ruling, “the law school must offer military recruiters the same access to its campus and students that it provides to the nonmilitary recruiter receiving the most favorable access.”

Kagan, by contrast, banned military recruiters from campus in November 2004, during a time of war when the U.S. military asked for Harvard’s help. 

And, despite any claims to the contrary, the Solomon amendment was in full force and effect as the law of the land when Kagan premeditatedly broke it.

Kagan pled guilty in a September 2005 letter to the Harvard Law School Community.  Quoting from that letter, with emphasis added to clarify Kagan’s wordy admission:

“In November 2004, the Court of Appeals for the Third Circuit issued a decision in the FAIR [Solomon] case, holding the Defense Department’s policy violates First Amendment freedoms.  The Supreme Court granted review of this decision; the Third Circuit ruling is stayed pending the Supreme Court’s decision, which is expected later this year…  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 [Office of Career Services] 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.”

Stripped of all obfuscating legalese, Kagan’s words bear repeating:

“Although the…Court’s action meant that no injunction applied…I reinstated…our…policy…  My hope in taking this action was that the Department would choose not to enforce…the Solomon Amendment.”

As the military has long known, hope is not a method.  In Dean Kagan’s case, her hope demonstrates a total disregard for the rule of law.

Now, Kagan’s defenders argue she courageously challenged Section 654 of U.S. Code Title 10, which is popularly, though incorrectly referred to, as “Don’t Ask, Don’t Tell,” by denying military recruiters access to Harvard Law’s Office of Career Services.

Don’t be fooled by this pink herring.

Dean Kagan should have banned Congress from campus, since they created the “moral injustice of the first order” she decried.  Instead, Kagan attacked military recruiters, those legally bound to comply with the law that Congress and her former boss Bill Clinton created.

Think of it this way, Dean Kagan donned her brass knuckles and bullied the kids in wheelchairs for their milk money.  Hardly a fair fight.

Did Kagan protest “Don’t Ask, Don’t Tell” with the President whose ear she had?  No.  She abetted Clinton’s political opportunism, from partial-birth abortion to interns with cigars.

Like Kagan at Harvard, members of the Senate Judiciary Committee continue to grandstand shamelessly on the issue.  The Congressional Record reflects Senators Cardin, Durbin, Feinstein, Kohl, Leahy, and Schumer all voted for the final passage of the 1994 Defense Authorization Act, which created the law prohibiting homosexuals from serving openly in the military.

Ask yourself these questions:

What do Dean Kagan’s actions at Harvard Law reveal about her ability to judge impartially when presented with legal claims that do not suit her ideological tastes?

What do they reveal about Ms. Kagan’s fidelity to the text of the Constitution?

All told, her actions reveal a fundamental lack of principle and condescension for American rule of law.  A vote to confirm Ms. Kagan as a Supreme Court justice is a vote to harm the Constitution, the military, and all Americans who overwhelmingly support and respect both.

Americans are rightly outraged by the past 18 months of Obama’s disastrous policies; they don’t want a rubber stamp extending them for as many as 40 years.

Any senator who rises in opposition to lead a filibuster will undoubtedly galvanize opposition to Kagan and, just as importantly, to the overall Obama agenda. 

Who is going to lead the charge today as we head towards November’s elections?