# Obama nominates Elena Kagan for Supreme Court **URL:** \ **Category:** Great Debates\ **Created:** [May 7, 2010, 6:56pm UTC](https://boards.straightdope.com/t/obama-nominates-elena-kagan-for-supreme-court/538669 "2010-05-07T18:56:22Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 10, 2010, 4:17pm UTC](https://boards.straightdope.com/t/obama-nominates-elena-kagan-for-supreme-court/538669/41 "2010-05-10T16:17:08Z")
So Kagan, as Dean of Harvard Law, prohibited the military from recruiting on campus, in defiance of the clear language of the Solomon Amendment, which conditions federal funding on allowing military recruiting… and she joined the suit to have the Solomon Amendment declared unconstitutional. The Solomon Amendment was ultimately unanimously upheld by the Supreme Court. How much more un-American can you get? Of course, she took her action one day after the Court of Appeals had agreed with her and ruled the law violated the universities’ rights to free speech. And when the SCOTUS reversed that ruling, she complied with the reversal. So at each stage of the proceeding, she acted as the law permitted her to. I disagree with her viewpoint on barring the military from recruiting, but that’s a policy question. She was the advocate for a point of view as the leader of an institution. And she acted in accord with the law. She’s not my choice for a SCOTUS chair. But I’m not the president. So as the president, I wouldn’t nominate her, but as a senator, I’d vote to confirm her. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [May 10, 2010, 4:19pm UTC](https://boards.straightdope.com/t/obama-nominates-elena-kagan-for-supreme-court/538669/42 "2010-05-10T16:19:43Z")
> [@gonzomax](#): > > At Harvard ,she kicked the military recruiters off campus because of “don’t ask ,don’t tell”. I am sure the military lovers will seethe over that. It is a combination of pro gay rights and anti military wrapped in a neat package. She never kicked the recruiters off campus. She was critical of DADT, and tried to help with challeges in the courtroom to law which allowed them to recruit on campus,but she never kicked them off campus or prevented them from recruiting. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 10, 2010, 4:24pm UTC](https://boards.straightdope.com/t/obama-nominates-elena-kagan-for-supreme-court/538669/43 "2010-05-10T16:24:59Z")
> [@Diogenes\_the\_Cynic](#): > > She never kicked the recruiters off campus. She was critical of DADT, and tried to help with challeges in the courtroom to law which allowed them to recruit on campus,but she never kicked them off campus or prevented them from recruiting. Not true. In November 2004, one day after the Third Circuit found, 2-1, in favor of FAIR (“Forum for Academic and Institutional Rights,” the association of schools challenging the ban) in the cause of _FAIR v. Rumsfeld_, Kagan banned military recruiters from Harvard Law. Kagan reconsidered her decision the following year and permitted the military to recruit again, the same year SCOTUS heard the appeal from the Third Circuit’s decision, and ultimately ruled unanimously against FAIR. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [May 10, 2010, 4:25pm UTC](https://boards.straightdope.com/t/obama-nominates-elena-kagan-for-supreme-court/538669/44 "2010-05-10T16:25:04Z")
> [@Bricker](#): > > So Kagan, as Dean of Harvard Law, prohibited the military from recruiting on campus, in defiance of the clear language of the Solomon Amendment, which conditions federal funding on allowing military recruiting… and she joined the suit to have the Solomon Amendment declared unconstitutional. The Solomon Amendment was ultimately unanimously upheld by the Supreme Court. > > How much more un-American can you get? > > Of course, she took her action one day after the Court of Appeals had agreed with her and ruled the law violated the universities’ rights to free speech. And when the SCOTUS reversed that ruling, she complied with the reversal. So at each stage of the proceeding, she acted as the law permitted her to. Even this is not entirely accurate. She briefly banned military recruiters from the career center, but did not prevent them from having access to students in other ways and did not “kick them off the campus” as the conservative nmedia headlines are saying. ---
**Author:** ![Snarky\_Kong](https://avatars.discourse-cdn.com/v4/letter/s/a183cd/32.png) [@Snarky\_Kong](https://boards.straightdope.com/u/Snarky_Kong)\ **Post date:** [May 10, 2010, 4:25pm UTC](https://boards.straightdope.com/t/obama-nominates-elena-kagan-for-supreme-court/538669/45 "2010-05-10T16:25:32Z")
> [@Bricker](#): > > How much more un-American can you get? For acting within the law in order to affect a change that she thought would be beneficial? Quite a bit. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [May 10, 2010, 4:26pm UTC](https://boards.straightdope.com/t/obama-nominates-elena-kagan-for-supreme-court/538669/46 "2010-05-10T16:26:54Z")
> [@Bricker](#): > > Not true. > > In November 2004, one day after the Third Circuit found, 2-1, in favor of FAIR (“Forum for Academic and Institutional Rights,” the association of schools challenging the ban) in the cause of _FAIR v. Rumsfeld_, Kagan banned military recruiters from Harvard Law. No, she only banned them from the Career Center, not the entire campus. She still allowed them to recruit. I posted a link to an article detailing the entire chain of events in my OP. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [May 10, 2010, 4:30pm UTC](https://boards.straightdope.com/t/obama-nominates-elena-kagan-for-supreme-court/538669/47 "2010-05-10T16:30:57Z")
> [@Elendil\_s\_Heir](#): > > Yeah, I was amazed to learn that she’d never argued an appellate case before being appointed Solicitor General. WTF? Talk about being thrown in the deep end of the pool. I also hadn’t realized that Clinton had nominated her for the D.C. Circuit back in 1999 but that the Senate hadn’t taken action… for the seat that eventually went to John Roberts. > > **Intellect and judicial temperament aside, the next justice should be a schmoozer and a coalition builder, and I think Kagan has the potential to do a good job on that front.** Although I would prefer a more extensive paper trail too, right now she looks pretty good to me. It’s reassuring to see Orrin Hatch and Lindsey Graham saying positive things about her already. By all accounts she really did make an effort to build bridges between liberals and conservatives when she was dean at Harvard Law School. We’ll certainly hear more about military recruiters and DADT. > > Any idea how much Obama consulted with GOP Judiciary Committee members on this pick? I remember reading that Hatch, in speaking with Clinton back in 1993, prviately assured him that Ginsburg would get GOP votes and ultimately be confirmed. If I were President I might ask Hatch and his committee colleagues to each suggest three liberal/centrist potential nominees who they’d be comfortable with, as a starting point for developing my own shortlist. “Advise and consent” shouldn’t be a meaningless phrase. _[bolding and underline added by Poly]_ We were discussing in a GQ thread on SCOTUS a while ago what made John Marshall, Taft, warren, and Brennan so effective, and it was this ability to reach across ideological lines and be a consensus builder. I think in nominating a moderate rather than a liberal, a consensus builder rather than a strong ideologue, with excellent credentials in constitutional law but no track record on decisions, Obama is taking decisive action to reshape the Court into his vision of what it should be. If she is in fact the sort of person who can get joins and concurrences from Alito, Thomas, Ginsberg, _and_ Kennedy on the same decisions, she is very much what the Court needs most today. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [May 10, 2010, 4:32pm UTC](https://boards.straightdope.com/t/obama-nominates-elena-kagan-for-supreme-court/538669/48 "2010-05-10T16:32:22Z")
According to Wikipedia: > [@](#): > > During her deanship, Kagan supported a long-standing policy barring military recruiters from campus, because she felt that the military’s Don’t ask, don’t tell policy discriminated against gays and lesbians. According to Campus Progress, > > ``` > As dean, Kagan supported a lawsuit intended to overturn the Solomon Amendment so military recruiters might be banned from the grounds of schools like Harvard. When a federal appeals court ruled the Pentagon could not withhold funds, she banned the military from Harvard’s campus once again. The case was challenged in the Supreme Court, which ruled the military could indeed require schools to allow recruiters if they wanted to receive federal money. Kagan, though she allowed the military back, simultaneously urged students to demonstrate against Don’t Ask, Don’t Tell.[14][15] > > ``` > > In October 2003, Kagan transmitted an e-mail to students and faculty deploring that military recruiters had shown up on campus in violation of the school’s anti-discrimination policy. It read, “This action causes me deep distress. I abhor the military’s discriminatory recruitment policy.” She also wrote that it was “a profound wrong – a moral injustice of the first order.”[16] I’m having a hard to accepting that she kicked them off the campus, though. She was Dean of the Law school, not the entire school, so I can’t see that she would have had the broader authority. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [May 10, 2010, 4:34pm UTC](https://boards.straightdope.com/t/obama-nominates-elena-kagan-for-supreme-court/538669/49 "2010-05-10T16:34:58Z")
> [@Bricker](#): > > You’re afraid she’ll be an activist conservative? I’m not worried about that - I am worried she is overly pro-executive. But then again, the Court hasn’t shown any willingness to reverse the flood of power from the legislative branch to the executive over the years, so I doubt one more can do any major harm. ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [May 10, 2010, 4:34pm UTC](https://boards.straightdope.com/t/obama-nominates-elena-kagan-for-supreme-court/538669/50 "2010-05-10T16:34:58Z")
Edited the thread title to reflect the official nomination. The original title was “Obama likely to nominate Elena Kagen for Supreme Court.” ---
**Author:** ![BobLibDem](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/boblibdem/32/3149_2.png) [@BobLibDem](https://boards.straightdope.com/u/BobLibDem)\ **Post date:** [May 10, 2010, 4:42pm UTC](https://boards.straightdope.com/t/obama-nominates-elena-kagan-for-supreme-court/538669/51 "2010-05-10T16:42:49Z")
What a gift for Joe Sestak. Since Specter voted against Kagan the last time the Senate voted on her, he now has the choice of either flip-flopping on his opinion of Kagan or coming out against the president of his own party on the nomination. It’s heads Sestak wins, tails Specter loses. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [May 10, 2010, 4:44pm UTC](https://boards.straightdope.com/t/obama-nominates-elena-kagan-for-supreme-court/538669/52 "2010-05-10T16:44:37Z")
> [@BobLibDem](#): > > What a gift for Joe Sestak. Since Specter voted against Kagan the last time the Senate voted on her, he now has the choice of either flip-flopping on his opinion of Kagan or coming out against the president of his own party on the nomination. It’s heads Sestak wins, tails Specter loses. Crazy. It’s almost like Specter had a record of changing political parties! ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 10, 2010, 4:44pm UTC](https://boards.straightdope.com/t/obama-nominates-elena-kagan-for-supreme-court/538669/53 "2010-05-10T16:44:57Z")
> [@Diogenes\_the\_Cynic](#): > > No, she only banned them from the Career Center, not the entire campus. She still allowed them to recruit. I posted a link to an article detailing the entire chain of events in my OP. From your link: > [@](#): > > Harvard reached its own accommodation in 1996. While the school did not allow military recruiters to use its main placement office, it did allow them on campus through the Harvard Law School Veterans Association, a student group. The recruiters met with students in the same classrooms, just under different sponsorship. Yes, that was in 1996. She banned them from the OCS in November 1994. She permitted them access again in September 1995. [Here is the letter](http://www.law.harvard.edu/news/2005/09/20_recruiting.php) she sent to the faculty concerning her decision. While the military was free to meet with students in classrooms, they did not have access to the scheduling and sign-up facilities of the OCS. It’s probably not fair to say she banned them from Harvard Law, but it’s equally fair (no pun intended) to say her decision put their recruitment efforts at a disadvantage. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [May 10, 2010, 4:48pm UTC](https://boards.straightdope.com/t/obama-nominates-elena-kagan-for-supreme-court/538669/54 "2010-05-10T16:48:30Z")
The point is that she didn’t ban them from the campus or prevent them from recruiting, which is what the conservative media outlets are saying. ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [May 10, 2010, 4:54pm UTC](https://boards.straightdope.com/t/obama-nominates-elena-kagan-for-supreme-court/538669/55 "2010-05-10T16:54:44Z")
> [@Dinsdale](#): > > Damn - I was really hoping to get Wood off of the 7th! The 7th Circuit has written some exciting opinions, and some of the issues might be called “sexy,” but getting wood off of them? That sounds a little fetishist. ---
**Author:** ![BobLibDem](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/boblibdem/32/3149_2.png) [@BobLibDem](https://boards.straightdope.com/u/BobLibDem)\ **Post date:** [May 10, 2010, 4:55pm UTC](https://boards.straightdope.com/t/obama-nominates-elena-kagan-for-supreme-court/538669/56 "2010-05-10T16:55:01Z")
> [@John\_Mace](#): > > Crazy. It’s almost like Specter had a record of changing political parties! True, but it still puts Specter in a pickle. Hard for me to feel sorry for the old DINO, though. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 10, 2010, 4:59pm UTC](https://boards.straightdope.com/t/obama-nominates-elena-kagan-for-supreme-court/538669/57 "2010-05-10T16:59:31Z")
> [@Diogenes\_the\_Cynic](#): > > The point is that she didn’t ban them from the campus or prevent them from recruiting, which is what the conservative media outlets are saying. I think the point is that she made it much more difficult to recruit. If a dean took this kind of action against, say, the ACLU or the Southern Poverty Law Center, I can’t picture you saying calmly, “Not to worry – she didn’t actually ban them from campus or prevent them from recruiting!” All of this, though, is a red herring: she took the action she did after her suit against the Solomon amendment won at the appeals court, and she had every good faith belief that the amendment was unconstitutional. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [May 10, 2010, 5:00pm UTC](https://boards.straightdope.com/t/obama-nominates-elena-kagan-for-supreme-court/538669/58 "2010-05-10T17:00:39Z")
[The Freeptards weigh in](http://www.freerepublic.com/focus/f-news/2510390/posts) . . . somma this shit you won’t **believe!** ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [May 10, 2010, 5:02pm UTC](https://boards.straightdope.com/t/obama-nominates-elena-kagan-for-supreme-court/538669/59 "2010-05-10T17:02:26Z")
> [@Bricker](#): > > I think the point is that she made it much more difficult to recruit. That isn’t what they’re saying. They’re saying she kicked them off campus, which is a lie. > [@](#): > > If a dean took this kind of action against, say, the ACLU or the Southern Poverty Law Center, I can’t picture you saying calmly, “Not to worry – she didn’t actually ban them from campus or prevent them from recruiting!” If I said she “kicked them off campus,” you would be the first to correct me. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [May 10, 2010, 5:07pm UTC](https://boards.straightdope.com/t/obama-nominates-elena-kagan-for-supreme-court/538669/60 "2010-05-10T17:07:58Z")
> [@Bricker](#): > > I think the point is that she made it much more difficult to recruit. If a dean took this kind of action against, say, the ACLU or the Southern Poverty Law Center, I can’t picture you saying calmly, “Not to worry – she didn’t actually ban them from campus or prevent them from recruiting!” Though, to be honest, if the ACLU or SPLC were in contradiction of the law school’s policies, they wouldn’t be on campus recruiting in the first place, and it would have resulted in, for example, the threat of defunding Middle Tennessee’s only Level One Trauma Center to force the school to allow them back. [Previous page](https://boards.straightdope.com/t/obama-nominates-elena-kagan-for-supreme-court/538669.md?page=2) [Next page](https://boards.straightdope.com/t/obama-nominates-elena-kagan-for-supreme-court/538669.md?page=4)