Anyone watching the SCOTUS hearing is familiar with Elena Kagan denying recruiters on Havard’s campus because the military’s policy towards homosexuality was in conflict with Harvard’s (and Kagan's) "non-discrimination" policy. So far, it has proven to be the most divisive issue during the proceedings.
Sen. Jeff Sessions, in particular, has taken the lead on contradicting the nominee’s statements on her military policies.
“I know what happened at Harvard. I know you were an outspoken leader against the military policy. I know you acted without legal authority to… deny the military equal access to campus until you were threatened by the United States government with the loss of federal funds,” Sen. Sessions said.
But Kagan aggressively denied any hostility towards the recruiters, insisting that she had been exceptionally welcoming to the military during her time at Harvard. Backing her up was a highly-publicized editorial published in the Washington Post from a former Marine officer who had attended Harvard Law during her tenure.
“If Elena Kagan is ‘anti-military,’ she certainly didn't show it,” said Robert Merrill, now a captain in the Marine Corps who is serving as a legal adviser to a Marine infantry battalion in southern Afghanistan. “She treated the veterans at Harvard like VIPs, and she was a fervent advocate of our veterans association.”
In the editorial, Merrill went on at length about private dinners with Kagan that were held simply to honor his service, and Kagan’s personal connection to students who were serving throughout their time at school. During the trial, Kagan said that Merrill’s editorial “made her cry,” unlike any other issue.
“We never suggested that any members of the military, you know, should be criticized in any way,” said Kagan. “I tried to make clear in everything I did that how much I honored everyone who was associated with the military on the Harvard law school campus.”
She also insisted that she gave the military “full and good” access.
“The military during all times of my deanship had full and good access,” said Kagan. Military recruiting did not go down… it went up. And it went up because we ensured that students would know that the military recruiters were coming to campus. Because I talked about how important military service was.”
That would seem to be at odds with several emails from Kagan’s time at Harvard showing that the Air Force JAG Corps was blocked from recruiting on campus. According to the memo, the JAG wrote the following in 2005: “Harvard is playing games and won't give us an [On-Campus Interviewing] date; their official window for employer registration has closed. Their recruiting manager told me today that she's still ‘waiting to hear’ whether they’ll allow us.”
After the regularly scheduled recruiting period, the JAG said that he was still denied a time slot or location to speak with students, but was given the full use of the campus Harvard Veterans Student Group. But per the directive of Harvard’s “faculty,” the military could not even post a memo at the office of Harvard’s Career Services.
That would seem to violate the Solomon Amendment, which demands that any school who accepts public funds – as does Harvard – also not discriminate against military recruiters in any way. Indeed, when Kagan was made aware that recruiters were planning on inquiring about her adherence to the Solomon Amendment, the dean relented.
Sessions mentioned that Kagan’s initial prohibition of military access penalized military recruiters who had nothing to do with the DADT policy that Kagan found so offensive. After all, DADT is the product of a federal law, and not individual policy of the recruiting office.
“Why wouldn’t you complain to Congress and not to the dutiful men and women who put their lives on the line for America every single day?” asked Sessions.
Kagan was given the option not to respond because Sessions’ time had expired, and chose to remain silent.