Monday, May 17, 2010

on Kagan's Disqualification for SCOTUS

I have opined on Twitter that, in my opinion, President Obama's nominee for the SCOTUS vacancy - Elena Kagan - is disqualified for the position by virtue of the reports of her banning military recruiters from campus when she served as Dean of the Harvard Law School. My opinion is my own, and is not formed from Newt Gingrich's similar pronouncements yesterday, or from any partisan website.

A reasonable question came from my friend Omer Mozaffar on Twitter, who asked:

"Even if the facts were that simple, which you know they aren't, how does that disqualify her?"

Good question.

Our task in evaluating Kagan for the SCOTUS vacancy is the task of evaluating her judgement. That is what she will be called to do - make judgements. Given that she has never been a judge and does not have a body of judicial decisions for us to evaluate, we have to look at how she has made judgements and decisions in her professional life to date as predictors of how she will make judgements on the court. In this particular, in her decisions on allowing or not allowing military recruiters equal access to her campus, her decision was so significantly shocking as to be disqualifying.

It is, as Omer suggests, not a simple question. And there are defenders of Kagan on this issue. One clear and seemingly mitigating defense was offered by her predecessor as Dean of the Harvard Law School - Robert C. Clark - in the Wall St Journal article here. You should read the article. I have, twice.

Clark offers three essential defenses of Kagan's actions:

1. She inherited the policies on access for military recruiters to Harvard's Office of Career Services (OCS) from Clark himself.

2. Kagan was acting in the interest of the campus non-discrimination policy when prohibiting recruiters from using OCS. The military couldn't sign a no-discrimination policy because of "Don't Ask, Don't Tell", so Harvard treated them as discriminators.

3. The practical effect was not severe because the recruiters came on campus at the invitation of student groups.

Before I discuss why those three arguments are flawed, a review of the timeline set out in Clark's article is useful.

1979 - Harvard adopts the non-discrimination requirement for recruiters on campus using OCS

1994 - President Clinton and Congress sign "Don't Ask, Don't Tell". Military cannot sign non-discrimination policy. Harvard at some point denies them access to OCS.

1996 - Congress passes Solomon Act, prohibiting colleges that accept federal aid from banning recruiters

Harvard is now in violation of the Solomon Act

2002 - Air Force makes the case that Harvard is deny it's recruiters "equal access" to their students.

Harvard, facing the loss of 15% of revenue, decides that it's principles on non-discrimination are fungible and grants an exemption to their policy for military recruiters - along with annual statements to their students that Harvard opposes the "Don't Ask, Don't Tell" policy. Access to the OCS is restored.

2003 - Elena Kagan becomes Dean of the Harvard Law School and keeps this policy.

2004 - an Appeals Court rules the Solomon Act invalid.

Ms. Kagan makes a decion at this point to return the Law School to the previous policy, and again prohibits access to military recruiters to the OCS.

One semester later, the Supreme Court overturns the Appeals Court. Plus, the Government threatens again to cut off federal funding to Harvard.

Their funding threatened, once again Ms. Kagan relents and allows access to the OCS and resumes writing her bad boy advisories to students about the military's discriminatory policies.

That is the timeline and the facts, as laid out by Ms. Kagan's defender Mr. Clark.

Now, back to the three defenses and why they are faulty.

1. She inherited the Policy:

Not good enough. She will not get to make that stance as a Justice on the Supreme Court. She will have to make her own decisions. In fact, she did make her own decision in 2004 with her decision to revert to the previous policy and again ban recruiters from equal access to the OCS.

2. Her positions were based on the Universities non-discrimination policies:

Her decision, when she had the chair of Dean, was to ban recruiters from equal access to the OCS based on politically correct OPTIONAL policies on discrimination. I say optional because when faced with a choice of losing 15% of their funding Harvard's scruples on discrimination came 2nd place. Money came first. When Dean Kagan thought she had the cover of the Appeals Court ruling to shield her from the loss of funding, she chose to end the exemption. She didn't have to.

Dean Kagan had the option of continuing the exemption for military recruiters to use the OCS. In the context of 2004, she should have. America was (and is) at war in two theaters. Military lawyers were in the thick of critical decisions on detaining and trying detainees related to those wars. Does our need for our Department of Defense to have equal access to the best and brightest law school graduates in war time trump an optional policy on non-discrimination? Especially when the military was just following the policies established by President Clinton and Congress. You bet it does.

Yet, in her one moment of owning the decision, Ms. Kagan decided on a policy of denying equal access to our military's recruiters. Shameful.

3. The practical effect of this ban, this denial of equal access, was negligible.

Nonsense. The military did not feel that it was negligible. That's why they pushed hard for restoration of equal access in recruiting Harvard's law students. Goldmann-Sachs had full access, but the U.S. Military did not.

Nor did the Supreme Court, when it reversed the Appeals Court on the Solomon Act.

Elena Kagan had her moment of making a decision. A judgement. It came in 2004, when she made the decision to revert to a policy of denying equal access to the OCS to military recruiters.

Kagan's decision was opposite in intent to the Supreme Court's intention in restoring the Solomon Act. Yet, Obama now wants to put her on that same court. It's a mistake.

We have little record to judge Elena Kagan's judgement. Here is one example, and she got it badly wrong - as did her defender Mr. Clark. She got it so wrong in wartime as for it to be a disqualifying decision, IMHO.

Vote no on Elena Kagan's confirmation.
(Photo by Randy Masters copyright 2007)

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