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.
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.
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.
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.
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.
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.
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.
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.
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.
She banned them from the OCS in November 1994. She permitted them access again in September 1995. Here is the letter 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.
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.
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.
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.