Posted by AzBlueMeanie:
Sen. John McCain recently announced that he would oppose the nomination of Elena Kagan to the U.S. Supreme Court. Was there ever any doubt? McCain's knee-jerk response is to oppose anything that President Obama proposes. This bitter old man can't get over the ass-whupping Obama handed him in 2008.
McCain purports to explain his opposition to Kagan in this opinion published in USA Today Sen. McCain: I will not support Kagan:
[T]he qualifications essential for evaluating a nominee for the bench included "integrity, character, legal competence and ability, experience, and philosophy and judicial temperament." On that test, Elena Kagan fails.
When Kagan was dean of Harvard Law School, she unmistakably discouraged Harvard students from considering a career in the military — even while claiming to do otherwise — by denying military recruiters the same access to Harvard students that was granted to white-shoe law firms. Kagan did so because she believed the military's "don't ask, don't tell" policy to be "a profound wrong — a moral injustice of the first order."
While Kagan is entitled to her opinion, she was not entitled to ignore the law that requires universities to allow military recruiters on campus under terms of equal access with all other recruiters. . .
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During her confirmation hearing last week, Kagan asserted that Harvard Law School was "never out of compliance with the law ... in fact, the veterans association did a fabulous job of letting all our students know that the military recruiters were going to be at Harvard." She went on to assert, "The military at all times during my deanship had full and good access." The facts are otherwise.
While I strongly disagree with Kagan, I take no issue in terms of her nomination with her opposition to President Clinton's "don't ask, don't tell" policy. She is free to have her own opinion. Kagan was not free, however, to ignore the Solomon Amendment's requirement to provide military recruiters equal access because she and many of her colleagues opposed "don't ask, don't tell." In short, she interpreted her duties as dean at Harvard to be consistent with what she wished the law to be, not with the law as written.
There you have it. McCain asserts he will oppose Kagan on the long-debunked conservative myth and falsehood of her opposition to the Solomon Amendments.
Now let's look at the facts. Media Matters has compiled a fact-check entitled Myths and falsehoods about Elena Kagan's Supreme Court nomination. On the subject of the Solomon Amendments, Media Matters writes:
Myth: Kagan's policies on military recruiters make her "an anti-military zealot" and an extremist on social issues
CLAIM: Kagan's policies regarding military recruiters at Harvard indicate that she is an "anti-military" "radical" who "defied" the law . Phyllis Schlafly claimed in her March 31 syndicated column that Kagan "defied the Solomon Amendment" -- a statute requiring schools to provide the same access to military recruiters that they provide to other potential employers or lose federal funding. Liz Cheney called Kagan's actions "radical," and other conservatives have also distorted Kagan's position regarding military recruiters on Harvard Law School's campus. And The Washington Times published a 2009 op-ed referring to Kagan as "an anti-military zealot."
REALITY: Kagan consistently followed the law, and Harvard students had access to military recruiters during her entire tenure as dean. Throughout Kagan's tenure as dean, Harvard law students had access to military recruiters -- either through Harvard's Office of Career Services or through the Harvard Law School Veterans Association. Moreover, Kagan consistently followed existing law regarding access to military recruiters. Kagan briefly restricted (but did not eliminate) access to recruiters only after the U.S Court of Appeals for the 3rd Circuit ruled that law schools could do so. As The New York Times explained in a May 6 article:
[Kagan's] management of the recruiting dispute shows her to have been, above all, a pragmatist, asserting her principles but all the while following the law, so that Harvard never lost its financing.
[...]
[E]ven when she ... briefly barred the military from using the law school's main recruitment office, she continued a policy of allowing the military recruiters access to students. [emphases added]
Moreover, during her confirmation hearing as solicitor general in 2009, Kagan pledged to defend the Solomon Amendment.
CLAIM: Kagan's actions and statements on Don't Ask, Don't Tell and military recruiters were extremist and hypocritical. In an April 18 article, The Washington Post noted that Kagan had called Don't Ask, Don't Tell "a profound wrong -- a moral injustice of the first order" and said her decision to continue allowing military recruiters to access Harvard's career center "causes me deep distress. ... I abhor the military's discriminatory recruitment policy." The Post quoted Ed Whelan suggesting that Kagan's quote was somehow "extreme":
"For someone who has been so guarded on so many issues, she used strikingly extreme rhetoric. 'Moral injustice of the first order' would seem fit for something like the Holocaust," said Ed Whelan, president of the conservative Ethics and Public Policy Center. "This is one issue that provides some jurisprudential clues as to how much her reading of the law will be biased by her policy views. If she is the nominee, that is an angle that I would press."
Whelan has separately clamed that the fact that Kagan relented to Bush administration pressure to allow military recruiters to access the career center is evidence that Kagan is a hypocrite who engaged in "cheap and contemptible moral posturing."
REALITY: Kagan's objections to DADT are mainstream, and her willingness to comply with and, as solicitor general, defend the Solomon Amendment demonstrate devotion to the rule of law. Kagan's moral objection to Don't Ask, Don't Tell is hardly "extreme." For example, Adm. Mike Mullen, the chairman of the Joint Chiefs of Staff, has suggested that the ban on openly gay service members compromises the military's "integrity." Moreover, Kagan's decision to abide by the Solomon Amendment doesn't indicate hypocrisy; it indicates a commitment to the rule of law.
FACT: Kagan allowed military recruiters access to Harvard Law School's Office of Career Services. In the 1990s, based on its anti-discrimination policy, Harvard Law School refused to allow military recruiters to use the school's Office of Career Services (OCS) because of the military's discriminatory Don't Ask, Don't Tell policy. In 2002, after the Bush administration threatened federal funding at Harvard, Kagan's predecessor as dean created an exception to Harvard's anti-discrimination policy and allowed military recruiters access to OCS. When Kagan became dean in 2003, she continued to allow military recruiters access to OCS.
FACT: After an appellate court -- including a Reagan appointee -- ruled Solomon Amendment unconstitutional, Kagan prohibited Harvard's career office from working with recruiters for one semester. In 2004, a three-judge panel of the 3rd Circuit held 2-1 in FAIR v. Rumsfeld that the Solomon Amendment violated First Amendment free-speech rights: "The Solomon Amendment requires law schools to express a message that is incompatible with their educational objectives, and no compelling governmental interest has been shown to deny this freedom." Judge Walter Stapleton, a Reagan appointee, joined the majority opinion in the case. Following the 3rd Circuit's ruling, Kagan reinstated the ban against military recruitment through OCS for one semester in 2005. After the Bush administration threatened to revoke Harvard's federal funding, Kagan once again granted military recruiters access to OCS. In 2006, the Supreme Court reversed the 3rd Circuit decision.
FACT: During that one semester, students still had access to military recruiters via the Harvard Law School Veterans Association. The New York Times noted on May 6 that "even when [Kagan] ... briefly barred the military from using the law school's main recruitment office, she continued a policy of allowing the military recruiters access to students." As Kagan explained in a September 2005 letter to her colleagues:
The Law School's anti-discrimination policy, adopted in 1979, provides that any employer that uses the services of OCS to recruit at the school must sign a statement indicating that that it does not discriminate on various bases, including sexual orientation. As a result of this policy, the military was barred for many years from using the services of OCS. The military retained full access to our students (and vice versa) through the good offices of the Harvard Law School Veterans Association, which essentially took the place of OCS in enabling interviews to occur.
[...]
I reinstated the application of our anti-discrimination policy to the military (after appropriate consultation with University officials) in the wake of the Third Circuit's decision; as a result, the military did not receive OCS assistance during our spring 2005 recruiting season.
FACT: Military veterans at Harvard Law dispelled notion that Kagan was "anti-military." Military veterans at Harvard Law School strongly dispute the idea that Kagan was anti-military and stated that she had a "strong record of welcoming and honoring veterans on campus." In response to the Washington Times op-ed, three military veterans who were Harvard law students at the time wrote a letter to the Judiciary Committee that said, in part: "As Iraq War veterans who currently attend Harvard Law School, we wanted to inform the Committee of Dean Kagan's strong record of welcoming and honoring veterans on campus." The veterans also wrote a letter to The Washington Times that stated, in part, that while they opposed the restrictions on military recruiters, "During [Kagan's] time as dean, she has created an environment that is highly supportive of students who have served in the military."
FACT: Dozens of law professors, other law schools, and the Cato Institute argued against government's interpretation of Solomon Amendment. Kagan's legal actions and statements regarding Don't Ask, Don't Tell were by no means extreme. As Media Matters has documented, Kagan joined a brief filed on behalf of 40 Harvard law professors arguing against the government's interpretation of the Solomon Amendment. Briefs filed on behalf of 100 other law professors also argued against the Solomon Amendment or the government's interpretation of that amendment, as did other organizations, including the Cato Institute.
FACT: Numerous law schools restricted military recruiters' access because of the discriminatory "Don't Ask, Don't Tell" policy. The Joint Appendix filed in connection with the appeal of FAIR v. Rumsfeld to the Supreme Court contains statements from numerous law professors detailing their law schools' attempts to restrict military recruiters' access to career services offices. Following the 3rd Circuit's decision, in addition to Harvard, Yale and New York Law School also reportedly reinstituted their restrictions against military recruiters.
FACT: Mullen said DADT compromises military's "integrity." While conservatives like Whelan have claimed Kagan's rhetoric opposing the ban on openly gay service members is somehow extreme, Mullen has similarly argued that the policy compromises the military's "integrity." In February 2 Senate testimony, Mullen stated:
Mr. Chairman, speaking for myself and myself only, it is my personal belief that allowing gays and lesbians to serve openly would be the right thing to do. No matter how I look at the issue, I cannot escape being troubled by the fact that we have in place a policy which forces young men and women to lie about who they are in order to defend their fellow citizens.
For me, personally, it comes down to integrity -- theirs as individuals and ours as an institution.
I also believe that the great young men and women of our military can and would accommodate such a change. I never underestimate their ability to adapt.
FACT: Kagan pledged to defend Solomon Amendment as solicitor general despite her personal views. In a written statement during her confirmation process for solicitor general, Kagan wrote:
As I stated at my confirmation hearing, I know well the facts and issues involved in Rumsfeld v. FAIR, 547 U.S. 47 (2006), and I feel confident in saying that had I been Solicitor General at the time that the 3rd Circuit held the Solomon Amendment unconstitutional, I would have sought certiorari in the Supreme Court, exactly as then-Solicitor General Paul Clement did. A fortiori, now that the Supreme Court has upheld the Solomon Amendment, if confirmed I would vigorously defend it against constitutional challenge. I would not recuse myself from participating in or personally arguing such a case because I would feel confident in my ability to supply such a defense given the responsibilities and role of the Solicitor General. I understand that role as representing the interests of the United States, not my personal views. I indeed think that I would enjoy, as well as be deeply honored by, the Solicitor General's position if I am fortunate enough to be confirmed. The advocate's role is frequently to put aside any interests or positions other than those of her clients. And as I hope I expressed at my confirmation hearing, I would take enormous pride in representing and advancing the interests of the United States as a client -- even if I would not myself have voted for every one of its statutes. [emphasis added]
The Associated Press has done a fact-check as well. Kagan Military Controversy: AP Fact Check Shows She's No Ivory-Tower Peacenik:
Elena Kagan is no ivory-tower peacenik.
Judging by her own words, the Supreme Court nominee held the armed forces in high regard during her tenure as Harvard Law School dean. She had one beef with the institution, a big one: its "repugnant" prohibition on openly gay service members.
Republicans are using that to portray her as an anti-military activist and to accuse her – groundlessly – of acting outside the law in restricting military recruiters on campus.
If anything, the record shows Kagan defended Harvard's conditions for on-campus military recruitment with less than a full-throated roar.
When her school risked losing federal money because of its policy, she caved.
When courts ruled this way and that on the matter, the school complied. And when other law schools sued to uphold their similar policies on military recruitment, she and other Harvard professors filed a brief supporting their argument but took a pass on joining the suit.
At issue is a Harvard policy from 1979 denying the use of its career-placement center to organizations that discriminate in their recruitment. The armed forces discriminate against openly gay members. Harvard's on-and-off compromise has been to allow a student veterans group to recruit on the campus without the career center's assistance.
Kagan did not throw military recruiters off campus, as some critics contend. Neither did she extend a full welcome.
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A look at recent claims and underlying facts:
THE CLAIM: "I see no reason why you would appoint an anti-military Supreme Court justice or why the Senate would confirm an anti-military Supreme Court justice," former Republican House Speaker Newt Gingrich said on "Fox News Sunday." He said "she led the effort, which was repudiated unanimously by the Supreme Court, to block the American military from Harvard Law School."
THE FACTS: In the heat of the recruitment debate, and after, Kagan praised military service as "the noblest of all professions" and a "socially valuable career path" that should be open to all. "I know how much my security and freedom and indeed everything else I value depend on all of you," she told West Point cadets.
Her words were double-edged in a 2003 e-mail to the law school community embracing the value of the armed forces while sharply criticizing the policy against homosexuals: "The importance of the military to our society – and the extraordinary service that members of the military provide to all the rest of us – makes this discrimination more, not less, repugnant."
The e-mail defended the school's earlier decision to set aside restrictions on the armed forces and to allow – not ban – military recruitment.
THE CLAIM: Kagan "was not in compliance with the law at various points in her tenure, and it was because of a deep personal belief. ... This is no little bitty matter," Alabama Sen. Jeff Sessions, senior Republican on the Judiciary Committee, said on ABC's "This Week."
THE FACTS: Harvard's policy began before she came to the school; she amended it according to changing circumstances as well as her own beliefs. At no point did she defy a court decision that would have placed her "not in compliance with the law."
Harvard Law School lifted its restrictions in 2002 under pressure from the Bush administration and congressional Republicans who threatened to cut off payments. Kagan decided to continue allowing military recruiters to use services of the campus career office when she became dean in 2003, despite her strenuous objections to the policy on gays.
In 2004, an appeals court ruled that a law enabling the government to withhold the money was unconstitutional. In response, Kagan quickly renewed the ban on recruiters using the campus office while allowing them to work through the student veterans group. The veterans group did not have its own physical space, but could still reserve a room on campus for the interviews.
But when the school faced another threat of losing federal financing, she backed down, just as her predecessor had done in 2002. Then in 2006, the Supreme Court unanimously reversed the lower court and found it was constitutional to deny financing to schools that restrict military recruiting.
So what we actually have here is Sen. McCain defending his flip-flop on the repeal of "Don't Ask, Don't Tell" John McCain Flip-Flops, Rejects the Recommendation of the Pentagon on DADT to continue discrimination against gays serving in the U.S. Armed Forces to appease the far-right of the GOP in his Senate primary by trying to recast this issue as "Elena Kagan discriminates against the U.S. military" -- a long-debunked conservative myth and falsehood. It's all about conservatives hatin' on the gays and wanting to maintain DADT. And it's all about McCain willing to smear a judicial nominee to pander to the far-right to save his own sorry ass.
McCain is demonstrating his lack of intellectual honesty, integrity, honor and character. The man has sold his soul for one last election. It's time that the voters retire him.
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