SUNDAY, JUNE 20, 2010
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The Supreme Court Nominee R by Amy Goldstein
When Elena Kagan suspended help to military recruiters as dean of Harvard Law School, conster- nation inside the Pentagon reached all the way to then-De- fense Secretary Donald H. Rums- feld, according to government documents released Saturday. The records show that the contro- versy was resolved by Harvard’s president with little apparent in- put from Kagan. The documents also hint that Kagan, nominated by President Obama for the Supreme Court, and Lawrence H. Summers, the university’s president at the time, might not have seen eye to eye on the sticky question of how firmly Harvard should object to military recruiting on campus. At issue was the military’s ban on openly gay people serving in the armed forces, which violates the univer- sity’s anti-discrimination policy. In a spring 2005 e-mail, an Air
Lawrence H. Summers took the lead.
Force representative said he had been “assured” that Harvard Law School would resume sponsoring military recruiters the next fall. Mark Weber, who oversaw the school’s career ser- vices office, “expressed that though Dean Kagan had made her position (op- position) to military re- cruiting very clear, the uni-
versity president felt differently,” the e-mail said. The e-mail is one of about 850
pages of documents about mili- tary recruiting at Harvard re- leased by the Pentagon to the Sen- ate Judiciary Committee, as the panel prepares for Kagan’s confir- mation hearings, scheduled to be- gin June 28. Her role in the mili- tary recruiting controversy has emerged as a central and partisan dispute in an otherwise tepid de- bate over whether Kagan, 50, de- serves to join the nation’s highest court. Until now, it has been clear that Kagan halted the school’s help to recruiters and announced months later that the help would resume. The documents show for the first time that the decision to resume was not primarily hers. Kagan was widely perceived to be close to Summers, now the White House’s senior economic adviser, and when he resigned as Har- vard’s president, she tried unsuc- cessfully to succeed him. Taken together, the documents shed fresh light on a period of sev- eral months during Kagan’s six years as dean that has assumed outsized importance and has been the subject of criticism by some Republicans since her nomination to the court. The period stretches from late 2004 to partway through 2005, the most heated time at Harvard in a long-running dispute there, and at other law schools, over how they should respond to a law known as the Solomon Amend- ment. Enacted by a Republican Congress in the late 1990s, it gives the Pentagon power to cut off uni- versities’ federal aid unless they allow military recruiters on cam- pus.
When Kagan became dean in 2003, Harvard and most other schools permitted recruiting rather than risk forfeiting its fed- eral funds. But after a federal appeals
TALK SHOWS
Guests to be interviewed Sunday on major television talk shows:
FOX NEWS SUNDAY (WTTG), 9 a.m.: Secretary of Defense Robert M. Gates; Sen. Mitch McConnell (R-Ky.); Janine Turner, founder and co-chair of Constituting America. STATE OF THE UNION (CNN), 9 a.m.: Sens. Richard G. Lugar (R-Ind.), Dianne Feinstein (D-Calif.), Joseph I. Lieberman (I-Conn.) and Lisa Murkowski (R-Alaska). THIS WEEK (ABC, WJLA), 10 a.m.: White House Chief of Staff Rahm Emanuel.
NEWSMAKERS (C-SPAN), 10 a.m.: Sen. Patrick J. Leahy (D-Vt.). FACE THE NATION (CBS, WUSA), 10:30 a.m.: Sens. Barbara Boxer (D-Calif.), Bill Nelson (D-Fla.) and Richard C. Shelby (R-Ala.); and Rep. Anh “Joseph” Cao (R-La.). MEET THE PRESS (NBC, WRC), 10:30 a.m.: Sen. Mary Landrieu (D-La.); Mississippi Gov. Haley Barbour (R); Rep. Edward J. Markey (D-Mass.); former Shell Oil president John Hofmeister; and Kenneth R. Feinberg, independent administrator for BP’s $20 billion restitution fund in the Gulf of Mexico oil spill. WASHINGTON WATCH (TV One), 11 a.m.: Reps. Emanuel Cleaver II (D-Mo.), Barbara Lee (D-Calif.) and Donna F. Edwards (D-Md.).
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court ruled in November 2004 that the Solomon Amendment was unconstitutional, Kagan wrote an open letter saying that the law school would no longer sponsor the recruiters. (The law ultimately was upheld by the Su- preme Court.) A few days after Kagan’s letter was released, Rumsfeld fired off a one-page memo to William J. Haynes II, the Pentagon’s general counsel at the time, about a news
clipping about Kagan’s move. “The attached article talks about Harvard Law School barring mili- tary recruiters on campus,” Rumsfeld wrote. “What can we do about that?” The newly released documents
make clear that Pentagon offi- cials, particularly from the Air Force, had been dealing for some time with Summers and attor- neys for the university. More than a year before the federal appeals
court opinion, they had been ne- gotiating, as one Pentagon memo said, “seeking a mutually accept- able process to permit military re- cruiters” to be sponsored directly by the law school. A student group of military veterans, rather than the university, had been sponsoring the recruiting. After the appeals court ruling
in late 2004 — and Kagan’s deci- sion to withhold the help — the Air Force turned to Summers and
the Harvard lawyers again. In June 2005, Harvard’s chief coun- sel wrote a letter to the Pentagon confirming that the law school’s careers services office would help the military recruiters. It was one of many pieces of correspondence between Har- vard and the Pentagon that con- tained no mention of Kagan. An internal Pentagon e-mail from more than a year earlier, for example, refers to a phone call in-
A7 Records give Kagan small role in settling Harvard-Defense dispute
volving Summers about a meet- ing between military officials and the university and says, “Hous- ton, we have a change to ‘Cam- bridge visit’ plan.” It explains that Harvard’s general counsel would be traveling to Washington. And referring to the Defense Depart- ment, it says, “. . . we MIGHT offer DoD to Beantown in near future . . . to demo DoD interest if help- ful/important to Dr. Summers.”
goldsteinamy@washpost.com
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