When Supreme Court nominee Elena Kagan takes her seat at the witness table for her confirmation hearing, the subject that she will most likely be asked about over and over and over again is whether she is, in the words of her critics, "anti-military."
At the heart of this charge are the ever-changing positions she took as dean of Harvard Law School with respect to whether military recruiters were treated the same way as other recruiters on the law school campus.
For Kagan's detractors, her treatment of the military on campus is a nasty scar that reflects on her character and judgment.
"Ms. Kagan kicked the military off Harvard's campus and out of its campus recruitment office," says Sen. Jeff Sessions, the ranking Republican on the Senate Judiciary Committee. "She gave big law firms full access to recruit bright young associates, but obstructed the access of the military as it tried to recruit bright young JAG officers to support and represent out soldiers as they were risking their lives for our country. It was an unjustifiable decision."
The facts, however, are not nearly so clear-cut.
Anti-Discrimination Policy
Beginning in 1979, nearly a quarter century before Kagan became dean, the law school adopted an anti-discrimination policy that required all employers recruiting on campus to sign a pledge promising not to discriminate based on race, gender, ethnicity or sexual orientation.
According to Mark Weber, assistant dean for career services at the law school, "Because the military had not and could not sign such a statement, they were not permitted to utilize the ... Office of Career Services."
He notes that despite this rule, "the military was never barred from the campus."
Military recruiters continued to interview on campus, using the Student Veterans Association instead of the Office of Career Services.
The Solomon Amendment
In the 1990s, even after Congress passed a measure called the Solomon Amendment, which required equal access for military recruiters, the Defense Department deemed the Harvard system legal and sufficient.
But in 2001, after the Sept. 11 attacks, the Bush administration reached a different conclusion, telling Harvard it would have to let recruiters operate through the career services office or else the entire university would lose all its federal funding. That would mean a loss, mainly in the sciences, of $328 million a year, or 16 percent of the university budget.
Robert Clark, then dean of the law school, surrendered, granting the military access not just to the campus as before, but also to its Office of Career Services. When Elena Kagan became dean a year later, she continued the practice, but she spoke out clearly against the military's "don't ask, don't tell" policy. In an e-mail to students, she called it "a profound wrong -- a moral injustice of the first order."
And she did more. Acting in her private role as a professor, she filed a friend of the court brief with other professors challenging the Solomon Amendment. When a federal appeals court struck down the provision nearly a year and a half after she became dean, she reinstated Harvard's anti-discrimination policy barring military recruiters from using the school's placement office.
An Alternative Setting
But while her public position as dean was to revert to the anti-discrimination policy, Kagan reached out privately to the Student Veterans Association, asking the members, some of them Iraq War veterans, to once again act as a proxy for the placement office.
Recollections of her meeting with the group vary, and of the dozen or so people who were there, many could not speak on the record because of the positions they now hold.
"It was a tough room," said one of those present. "She got more pushback than she was used to."
"I was shocked that the request was made. The vast majority of us thought 'don't ask, don't tell' was stupid," the person continued. "But ... getting us to carry her water on military recruitment through the back door was a bridge too far. ... I came to view her as a very smooth political person."
Kate Buzicky, a Rhodes scholar, the treasurer of the Veterans Association and now an Army captain, says she "can't speak for everyone in the group, but I think the sentiment was that it was more of a, you know, fellowship and social organization, and they wanted to stay within that kind of role on campus."
Another officer of the club recalls the meeting as quite a bit less contentious. "I don't remember us turning her down. We agreed to do a half-step less than she wanted."
In the end, the group posted on the Harvard website a somewhat ambiguous announcement declaring that it had decided to accept a "limited interim role to assist fellow classmates" who wanted to meet with recruiters from the military legal offices. While the group declined to serve in a "formal liaison" capacity for the school, it still sent out e-mails to the student body announcing when a military recruiter would be on campus and letting students know how to arrange interview times. Military recruiters thus continued to meet with students on campus and in the same classrooms where other recruiters met with students.
'Running At Cross Purposes'
Many of the student vets came to see the controversy as more symbolic than real. Lt. Col. Rob Bracknell had served 13 years in Iraq, Bosnia and elsewhere when he came to Harvard for a special master's program in international law and security. "I can see where she was trying to facilitate two dual goods that may have been running at cross purposes with each other at the time," he says.
Over the next 16 months, there would be more back and forth in the school's policy and the law itself. But in March 2006 the whole question became moot when the U.S. Supreme Court unanimously upheld the Bush administration's interpretation of the law.
Harvard Law School Dean of Students Ellen Cosgrove says Kagan was under enormous pressure over the school's military recruitment policy. The Association of American Law Schools was "threatening schools' accreditation if they discriminated in the treatment of gay students," she says. The state of Massachusetts had an anti-discrimination law. The school's gay rights organization cared deeply about the policy, too.
"Within the student population generally," as well as with the faculty and staff, says Cosgrove, "I'd say the strong weight of support was against having the military on campus" for recruiting purposes.
But Cosgrove says that Kagan was trying everything to make sure that military recruitment did happen on campus. If the student vets had turned her down flat, Kagan had a backup plan for a faculty member to act as the facilitator.
Cosgrove says Kagan's reasons were twofold. First, she "wanted to figure out a way to support the military by sending them some of the best and brightest young lawyers that would be graduating from Harvard," and secondly, she wanted to "support students who had an interest in a military career."
Kagan apparently succeeded because the numbers of students who signed up with the military remained constant while she was dean. In fact, they even occasionally increased.
A Relationship With Veterans
According to many vets interviewed for this story, Kagan went out of her way to make them feel welcome on the campus, mentioning their presence frequently in her public remarks and inviting them to a small dinner organized by her office on Veterans Day each year. It is a tradition that continued after she left.
"I was really impressed," says Erik Swabb, an Iraq veteran. She wasn't "just deferring to whatever opinion we had, or simply trying to butter us up or anything like that. ... It was a genuine back and forth about the substantive issues related to serving in the military. I came away feeling that ... she really respected those who served in the military, and that meant a lot more than just the fact that ... she hosted a dinner for us."
"She treated us like VIPs while we were there," says Capt. Robert Merrill in a phone interview from his post in Afghanistan. He describes the dinners with Kagan as a chance for her to hear about the vets' experiences and to "thank them for their service."
During his law school tenure at Harvard, he says, he got to know Kagan in the same way a soldier gets to know his commander. "I always joked with her that she would've made a fine Marine," he says. "Just her style -- she's kind of a strong personality, slightly intimidating, but everybody loves her because she's tough and she knows how to show people that she cared for the students."
Merrill says eventually he "started calling the dean Colonel Kagan" whenever he crossed paths with her on the campus.
The coda to this controversy came in 2007 when Kagan went to West Point to give a speech to the cadets, telling them she had accepted their invitation in order "to thank all of you senior cadets -- and to wish you Godspeed as you go forward to serve your country and your fellow citizens in the greatest and most profound way possible."
She said she "had been grieved in recent years to find your world and mine, the U.S. military and U.S. law schools, at odds, indeed, facing each other in court" over a single issue, don't ask, don't tell.
"I personally believe that the exclusion of gays and lesbians from the military is both unjust and unwise," she said. "I wish devoutly that these Americans, too, could join this noblest of all professions and serve their country in this most important of all ways."
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