Posted by: captainfalcon | May 11, 2010

Judiciary in America

This piece, by Tom Goldstein (et. al.), is not too pithy for its own good. But if you plan to read anything about Elena Kagan, you should read it. After giving her biography, it reviews her scholarship (resisting the pathological urge to read it like tea leaves), clarifies and explains the Elena Kagan banned military recruiters from Harvard’s campus meme, and adumbrates the confirmation process’s likely trajectory:

I find it unlikely that Kagan would get many (if any) more votes than the 68 received by Justice Sotomayor, whom some Republicans found it difficult to oppose because she was the third female Justice, the first Hispanic, and had a powerful personal story.  The Senate is also now more rigidly divided along party lines, in the wake of the health care fight.  Although there were several facts in Sotomayor’s record that demonstrated that she was relatively liberal – including not only her opinions but also her pre-judicial work for advocacy groups – whereas Kagan’s record is far thinner on ideological questions, I expect that Republicans’ votes on the Sotomayor nomination will substantially guide their approach to a Kagan nomination.

Many Republicans will have a significant predisposition to oppose almost anyone whom a Democratic President nominates.  A material number of Democratic Senators took the same approach to President Bush’s nominees.

The most significant point that makes it possible that Kagan could come close to or surpass Sotomayor’s vote count is that Sotomayor did face significant opposition from a uniquely powerful interest group – the NRA – on the basis of a case on which she sat that ruled (applying prior Second Circuit precedent) that the Second Amendment is not incorporated against the states.  The NRA will naturally be suspicious of any Democratic nominee, but Kagan does not appear to have the “hook” for them to engage in active opposition.  I am not aware of any position she has taken – before or during her tenure as Solicitor General – on the Second Amendment.

I also found the discussion of Kagan’s “opposition to military recruiters” illuminating and tinged with irony.

In 1979 Harvard Law School implemented a policy forbidding employers who don’t adhere to certain anti-discrimination rules from using the Office of Career Services for recruiting. The military does not abide by the relevant anti-discrimination rules; as a consequence, HLS’s policy forbade them from recruiting through the Office of Career Services. However, the policy was compatible with “recruitment through a student group, the HLS Veterans Association,” which was founded in 1985.

In 1996, Congress passed the Solomon Amendment, disallowing schools that forbid military recruitment on campus from receiving Federal funds. HLS did not modify its anti-discrimination policy in response to the Solomon Amendment. Goldstein flags two possible explanations. First, it could be HLS judged itself already in compliance with the Solomon Amendment (it permitted recruitment through the HLS Veterans Association). Second, it could be HLS judged that no harm would come from its being in noncompliance; HLS does not take Federal money.

In 2002, the Defense Department (!?) announced that (a) HLS was in noncompliance with the Solomon Amendment and (b) unless it complied, Harvard University would be barred from receiving Federal funds. (In total, Harvard received several hundred million dollars in Federal funding per year.) In response, Harvard carved a pragmatic exception to its non-discrimination policy, and allowed military recruiters to use the Office of Career Services.

Kagan became Dean in 2003, and she maintained the anti-discrimination policy plus exception. Then, in 2004, a Circuit Court held that the Solomon Amendment was unconstitutional, thereby undermining the rationale for HLS’s exception to its anti-discrimination policy. Accordingly, Kagan repealed it. When the Supreme Court overturned the Circuit Court’s judgment – upholding the Solomon Amendment – Kagan reinstated the exception. (So – here the tincture of irony – Kagan’s last move in the military recruitment fracas was to fully permit the military to recruit at HLS.)

Two things are clear.

First, Kagan merely implemented her law school’s pre-existing policy (the prescriptive clause of which had significant pedigree): ban employers who don’t adhere to a particular anti-discrimination policy from recruiting through the Office of Career Services unless doing so would have a dramatically negative impact on the College. She did not see fit (I have no idea whether she even had the ability) to try to change it.

Second, depending on what kind of discretion the Dean of HLS has, there is a little room in which to criticize Kagan from both the left and right. The right can insist that the policy’s prescriptive clause got its priorities so wrong (privileging non-discrimination over keeping America safe) that Kagan had an obligation to do what she could to change it. The left can say that the exception got its priorities so wrong (privileging augmenting the University’s wealth over non-discrimination) that Kagan had an obligation to do what she could to change it. (And, because non-discrimination is a constitutional question, both can extrapolate from her performance here to her performance on the Court.) I find both these criticisms entirely unconvincing, but they can be pressed consistent with the facts.



  1. Miles, what’s your opinion of criticism along the lines of David Brooks’, which is actually bolstered by your reading of things: that Kagan reflexively goes with the flow in order to become a Supreme Court Justice.

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