Kagan's position on military recruiters at Harvard was hardly radical.

The law, lawyers, and the court.
May 10 2010 6:51 PM

Don't Ask, Don't Tell, Don't Rock the Boat

Kagan's position on military recruiters at Harvard was hardly radical.

Also in Slate, Dahlia Lithwick explains why the inscrutable Kagan makes everyone nervous. John Dickerson wonders how Kagan will convince America she has a special understanding of ordinary people. Jack Shafer yearns to see an openly gay Supreme Court nominee.

(Continued from Page 1)

In 2005, a federal appeals court ruled that the Solomon Amendment was unconstitutional. Kagan went back to Harvard's pre-2002 rule: Military recruiters met with students through the student veterans' association rather than the law school's career-placement office. Again, this looks more like an accommodation than like a radical rejection of the military. Some gay-rights advocates on campus were disappointed and felt betrayed.

As for the brief that Kagan signed in the case, it was designed to offer the court a middle path between FAIR's claim that the Solomon Amendment was unconstitutional and the Department of Defense's position that Solomon was in all ways wonderful. Written by former solicitor general and Slate contributor Walter Dellinger, the brief argued that "in the best traditions of judicial restraint," the Supreme Court didn't have to decide the constitutional question at all. Instead, the court could find that the accommodations to military recruiters provided by schools like Harvard complied with the amendment. Solomon required the schools to give the recruiters access to facilities and students "in a manner that is at least equal in quality and scope" to what other employers got, the brief argued. The schools were being entirely evenhanded because they were applying their nondiscrimination policy to the military the same way they applied it to everyone else. "The government is demanding far more than equality of treatment," the amicus brief said. "It is insisting on being given a special exemption from evenhanded antidiscrimination policies."

Yes, there is that word again: evenhanded. It appears in the brief 15 times. Judicial restraint, evenhanded antidiscrimination policy—these phrases are all about signaling that the signers of the brief are reasonable, moderate, unobjectionable. Never mind that this approach didn't work. By a vote of 8-0, the Supreme Court ruled against FAIR, rejecting the amicus brief's arguments. It didn't matter why the law schools were treating the military recruiters differently from other employers', the court said. The fact was that they were. As Chief Justice John Roberts wrote for the court (italics his): "The Solomon Amendment does not focus on the content of a school's recruiting policy, as the amici would have it. Instead, it looks to the result achieved by the policy." So much for the nice middle path.

Whelan writes that Kagan's stance isn't about pragmatism but, rather, "cheap and contemptible moral posturing." If she really believed "Don't Ask Don't Tell" was wrong, then why did she go along with the compromise that let Harvard keep its federal funding? That's the problem with the middle ground: It's not pure. You can criticize the law schools for buckling under when their universities were faced with the loss of hundreds of millions in federal funds, but, really: What realistic choice did they have?

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My Slate colleague Timothy Noah also points out that the schools were punishing the military for a congressional statute. Why not tell recruiters for the Department of Justice and other departments of the federal government that they had to abide by the same rules as the military? Fair enough. But it's also a criticism devoid of context. Kagan was not alone in conceiving of the fight in the terms that she did. And in the end, what she did as dean is as indicative, or more, as what she said as dean.

In announcing his choice, Obama said that he wants Kagan to be a seeker of common ground on the high court. Kind of like him—at least, like the way he likes to present himself. It's almost as if, faced with the debate over the Solomon Amendment when she was dean, Kagan asked herself a question that would not become popular until years later: What would Obama do?

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