Research Briefing

Over Memorial Day, We Reflect On Obama’s Supreme Court Nominee’s Record On The Military

Kagan Prefers To Be Called “General,” Joking That She Will Be “Expecting Everyone To Salute…” “A few more weeks, and I'll be expecting everyone to salute me. But seriously, I'll tell you a story. Just after my confirmation, a member of the administrative office of the court called to ask me whether I wanted the justices to call me ‘general’ during oral argument… [t]he justices have been calling men SGs ‘general’ for years and years and years; the first woman SG should be called the same thing.” (Tony Mauro, “Kagan: Just Call Her 'The General,'” The National Law Journal, 5/04/09)

IN 2004, GENERAL KAGAN BANNED MILITARY RECRUITERS AT HARVARD LAW SCHOOL

DUE TO HER OPPOSITION TO DON’T ASK, DON’T TELL

As Dean Of Harvard Law School, Kagan Praised The University’s Decision To Ban Military Recruiters From Harvard’s Campus Over The Military’s Ban On Openly Gay Service Members. “‘This return to our prior policy will allow [the Office of Career Services] to enforce the law school's policy of nondiscrimination without exception, including to the military services,’ the dean, Elena Kagan, wrote in a brief statement late yesterday. ‘I am gratified by this result, and I look forward to the time when all law students will have the opportunity to pursue any legal career they desire.’” (Jenna Russell, “Harvard Law School Bans Military Recruiters Over Anti-Gay Policies,” The Boston Globe, 12/1/04)

• She Called Clinton-Era Federal Statute Of Don’t Ask, Don’t Tell “A Profound Wrong – A Moral Injustice Of The First Order.” “[Kagan] Also Wrote An Open Letter To The Campus Describing Her ‘Deep Distress’ Over The Issue, Calling The Ban On Openly Gay Service Members ‘A Profound Wrong -- A Moral Injustice Of The First Order.’” (Marcella Bombardieri, “Judges Order Pentagon To Halt Law School Recruiting Tactics,” The Boston Globe, 11/30/04)

Kagan Signed A Friend Of The Court Brief In Rumsfeld v. Fair, Opposing The Solomon Amendment Which Forced Law Schools To Allow Military Recruiters On Campuses. “Harvard law dean Elena Kagan was one of 54 Harvard law professors who signed a friend-of-the-court brief supporting the lawsuit. She also wrote an open letter to the campus describing her ‘deep distress’ over the issue, calling the ban on openly gay service members ‘a profound wrong -- a moral injustice of the first order.’” (Marcella Bombardieri, “Judges Order Pentagon To Halt Law School Recruiting Tactics,” The Boston Globe, 11/30/04)

• Supreme Court Ruled Unanimously Against The Brief, Rejecting “Schools’ Argument That Being Forced To Allow The Recruiters On Campus Violated Their First Amendment Rights.” “All eight sitting justices who heard oral arguments in Rumsfeld v. Forum for Academic and Institutional Rights (FAIR) last December rejected the schools' argument that being forced to allow the recruiters on campus violated their First Amendment rights. "Students and faculty are free to associate to voice their disapproval of the military's message," wrote Chief Justice John Roberts. "Recruiters are, by definition, outsiders who come onto campus for the limited purpose of trying to hire students — not to become members of the school's expressive association." (Jane Roh, “Supreme Court Rules Against Schools In Military Recruiting Case,” Fox News, 03/06/06)

 AND IN 2005, KAGAN WANTED TO STRIP MILITARY COMMISSIONS OF THEIR AUTHORITY

Kagan Argued That Congress Should First Wait For The Judiciary To Act Before Passing Laws Regarding Detainees. “The Graham Amendment would attempt to stop both of these cases from proceeding and would unwisely interrupt judicial processes in midcourse. Respect for the constitutional principle of separation of powers should counsel against such legislative interference in the ongoing work of the Supreme Court and independent judges.” (Elena Kagan Letter, “Joint Letter to Sen. Patrick Leahy, Opposing The Graham Amendment To The DoD Authorization Bill Insofar As It Would Have Stripped The Federal Courts Of Jurisdiction To Hear Habeas Petitions Brought By Detainees At Guantanamo,” Senate Judiciary Committee, 11/14/05)

Kagan Argued That Non-Citizen Detainees Must Be Able To Appeal Military Commission Decisions To A Civilian Court, Making The Military Commissions Irrelevant. “As professors of law who serve as deans of American law schools, we believe that immunizing the executive branch from review of its treatment of persons held at the U.S. Naval Base at Guantanamo strikes at the heart of the idea of the rule of law and establishes a precedent we would not want other nations to emulate…..Curiously, the Graham Amendment recognizes the need for judicial review of the determination of enemy combatant status, but then purports to bar judicial review of far more momentous commission rulings regarding determinations of guilt and imposition of punishment.” (Elena Kagan Letter, “Joint Letter to Sen. Patrick Leahy, Opposing The Graham Amendment To The DoD Authorization Bill Insofar As It Would Have Stripped The Federal Courts Of Jurisdiction To Hear Habeas Petitions Brought By Detainees At Guantanamo,” Senate Judiciary Committee, 11/14/05)

Kagan Called The Graham Amendment “Fundamentally Lawless” And Compared It To The Kind Of Laws That “Dictatorships Have Passed...” “When dictatorships have passed laws stripping their courts of power to review executive detention or punishment of prisoners, our government has rightly challenged such acts as fundamentally lawless. The same standard should apply to our own government. We urge you to vote to remove the court-stripping provisions of the Graham Amendment from the pending legislation.” (Elena Kagan Letter, “Joint Letter to Sen. Patrick Leahy, Opposing The Graham Amendment To The DoD Authorization Bill Insofar As It Would Have Stripped The Federal Courts Of Jurisdiction To Hear Habeas Petitions Brought By Detainees At Guantanamo,” Senate Judiciary Committee, 11/14/05)

WHEN IT COMES TO ISSUES THAT SHE REALLY CARES ABOUT,

KAGAN SEEMS TO TAKE A MORE ACTIVIST VIEW

At Confirmation Hearing, Kagan Stated That Her Most Critical Responsibility As Solicitor-General Was “The Vigorous Defense Of The Statutes Of This Country.” “At the same time, the solicitor general has critical, no less critical responsibilities to Congress. Most notably, the vigorous defense of the statutes of this country against constitutional attack. Traditionally, outside of a very narrow band of cases involving a separation of powers, the solicitor general has defended any federal statute in support of which any reasonable argument can be made.  And I pledge to continue this strong presumption, that the Solicitor General's Office will defend each and every statute enacted by this body.” (Elena Kagan, “Solicitor General Confirmation Hearing,” Senate Judiciary Committee, 2/10/09)

But As Solicitor-General, Kagan Failed To Defend Don’t Ask, Don’t Tell Law Against 9^th Circuit’s Decision Undermining It. “The Obama administration has decided to accept an appeals-court ruling that could undermine the military's ban on service members found to be gay. A federal appeals court in San Francisco last year ruled that the government must justify the expulsion of a decorated officer solely because she is a lesbian. The court rejected government arguments that the law banning gays in the military should have a blanket application, and that officials shouldn't be required to argue the merits in her individual case.” (Jess Bravin and Laura Meckler, “Obama Avoids Test On Gays In Military,” The Wall Street Journal, 5/19/09)