FRIDAY, MAY 28, 2010
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kagan from A1
ing to try to thwart her confirma- tion. But her interactions with the small cadre of Harvard law stu- dents affiliated with the military suggest that the talking points of Kagan’s Republican critics and her Democratic defenders distort history to some degree. Sen. Jeff Sessions (S.C.), the
ranking Republican on the Senate Judiciary Committee, which will conduct her confirmation hear- ings, has repeatedly accused her
of an anti-military bias and of breaking the law. Veterans who were on campus, however, and many legal experts say that nei- ther is quite accurate. And Judiciary Committee
Chairman Patrick J. Leahy (D-Vt.) has said that “recruiting went on at Harvard every single day through the time she was there.” Yet recruiters were not officially sponsored on campus in the spring of 2005 after Kagan changed the policy.
Kagan declined through a
White House spokesman to com- ment.
Amid the tangle of political half-truths, eight Harvard law graduates interviewed for this ar- ticle, all of whom were veterans or preparing for active duty at the time, offer a third view. They say that Kagan separated her intense opposition to the military’s “don’t ask, don’t tell” policy from her di- rect interactions with them. All but one have never before de- scribed these matters publicly. Most are now military lawyers or
in other government roles and were forbidden by their employ- ers to discuss a Supreme Court nominee except on the condition of anonymity. “I didn’t think she demonstrat-
ed any bias by doing what the uni- versity required her to do” regard- ing the recruiters, said Lt. Col. Robert Bracknell, who was 35, al- ready a lawyer and had been in the Marines for 15 years when he spent 2005-06 at the law school earning a master’s degree. “I found her to be very . . . interested
R
From Page One
At Harvard, Kagan opposed recruiting by military but asked a club to step in
in what I had to say.”
Kagan inherited the recruiting controversy when she became dean in 2003. The issue confront- ed many law schools, which viewed the military’s “don’t ask, don’t tell” rule as violating cam- pus anti-discrimination policies. But if they did not help the re- cruiters, the schools would risk losing federal aid. Like most law schools, Harvard was sponsoring recruiters, although Kagan was outspoken in objecting to the pol- icy on gays. A coalition of law
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schools, not including Harvard, had filed suit. In November 2004, the U.S. Court of Appeals for the 3rd Circuit said the law linking federal aid to recruiting help was unconstitutional. Kagan an- nounced that Harvard would no longer provide such help. Boston College law professor
Kent Greenfield, who founded the law school coalition, which ulti- mately lost its case at the Su- preme Court, said he thinks that Harvard was the only school that stopped welcoming recruiters right after the 3rd Circuit ruling, although no one kept complete track. In Harvard’s largely liberal en- vironment, the issue was polariz- ing for a few years but did not per- vade the law school. Lambda, a gay student group, occasionally painted toy soldiers pink and placed them on every seat in classrooms to protest “don’t ask, don’t tell” and the recruiting. Only a smattering of students had military connections: veterans, students who owed military serv- ice because of ROTC scholarships, a few on active duty who were be- ing paid by the military to become lawyers. Some of them said they, too, disliked the ban. In fall 2004, knowing that the
3rd Circuit would soon rule, Ka- gan offered to discuss the issue with the veterans association, which was primarily a social club that seldom had more than a doz- en members.
One alumnus, at the time a few months into his first year of law school, remembers asking the dean whether the law linking fed- eral aid to military recruiting might have an analogy: the Feder- al Highway Administration did not give states money if their legal drinking age was lower than 21. The students broke into laughter. Kagan bristled, saying that never before as dean had she felt mocked, according to several peo- ple who were there. “The room dropped several de- grees, and we had to sort of defuse the situation,” said the student, who was a leader of the group and is now a federal employee. He as- sured Kagan that the laughter was not directed at her. It was soon after the 3rd Circuit ruling that, home sick one day, the student received Kagan’s call. Alone with the dean for 20 min- utes in her glass-walled office, he recalls, he told her he needed to consult with the club’s members about her request that they spon- sor the recruiters, as the club had done in the past.
On the winter night when they
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debated what to do, some argued for helping the recruiters, saying the military needed the best- trained lawyers in a time of war. One alumnus said he countered that Kagan should not oppose military recruiting and the ban on gays, then look for another route to let recruiters in. “I didn’t want to make my first act at law school ushering in the military through the back door,” said the former student, who supports Kagan’s nomination. “If you are going to take a stand against it, take a stand against it. . . . Don’t play games.” In the end, the club decided its members would welcome ques- tions from students considering military careers but would not do more. “We took the request in good faith and, at the end of the day, thought, ‘Hey, the military has its own recruiters,’ ” the for- mer leader said. Kagan’s decision — and that of
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the veterans group — had no im- pact on the number of people en- tering the military. In that spring of 2005, five graduates joined, more than any other year of the decade, according to Mark Weber, assistant dean for career services. Ellen Cosgrove, the law school’s dean of students, said the chapter “was very difficult for Elena” and added: “This was a decision you can’t win. You are either going to alienate the gay students and everyone who was sympathetic to their cause or the veterans and those students who are sympa- thetic to their cause.”
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Cosgrove remembers Kagan telling her: “I want to do stuff to make the students feel that Har- vard supports them, supports their service to the country.” In fall 2006, Kagan inaugurated an intimate dinner with the vet- erans, held annually on Veterans Day until she left Harvard. In fall 2006, a veteran was a fi- nalist in Harvard’s Ames Moot Court competition. Supreme Court Justice Anthony M. Ken- nedy was a judge. At a dinner before the argu- ments, Kennedy spoke with a stu- dent preparing to be a military lawyer and reminisced about his own time in the California Na- tional Guard. As they took their seats, a former officer of the vet- erans association recalls, he heard Kennedy lean over to Kagan to say that he hoped she took care to rec- ognize the law school’s veterans. The dean assured the justice that she did.
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