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Military-Banning Elena Kagan: The Times' Idea of a Supreme Court 'Pragmatist'

Reporter Katharine Seelye's profile reads like an attempt to portray liberal former Harvard Law School dean Elena Kagan, a potential Supreme Court pick, as a moderate.

On Friday, reporter Katharine Seelye painted as a "pragmatist" Obama's liberal potential Supreme Court pick Elena Kagan, former dean of Harvard Law School.

Seelye strove to paint Kagan as a moderate on the issue of Harvard allowing the presence, with constraints, of military recruiters on campus despite the gay and lesbian ban "Don't Ask Don't Tell," loathed by all good Ivy League lefties: "A Potential Court Pick's Dilemma at Harvard - Sought Middle Ground in Dispute Over Military Recruiters on Campus."

For nearly a quarter-century, Harvard Law School refused to help the nation's military recruit its students, because the armed services discriminated against openly gay soldiers. But in 2002, the school relented to pressure from the Bush administration and agreed to allow recruiters on campus.

When Elena Kagan became dean of the law school the next year, she faced a moral dilemma over whether to continue that policy.

She said she abhorred the military's refusal to allow openly gay men and lesbians to serve. And she was distressed that Harvard had been forced to make an exception to its policy of not providing assistance to employers that discriminated in hiring.

But barring the recruiters would come with a price, costing the university hundreds of millions of dollars in federal money.

The choices she made during that long-running episode are now under scrutiny as Ms. Kagan, now the solicitor general, has become a leading potential nominee to the Supreme Court. Her 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.


Ok, how many "pragmatists" truly "abhor" the military's Don't Ask, Don't Tell policy and work to restrict the military's ability to recruit students? That sounds more like a predictable liberal mood than any kind of pragmatist centrism.

Seelye posed Kagan's liberal actions on military policy as a search for the middle ground (and perhaps it was, at left-wing Harvard):


She repeatedly criticized "don't ask, don't tell," the policy that bars gay men and lesbians from openly serving in the military. At one point she called it "a moral injustice of the first order." She also joined a legal brief urging the Supreme Court to overturn the law that denied federal funds to colleges and universities that barred military recruiters.

But even when she later 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.

Republicans have signaled that they intend to pounce on Ms. Kagan's forceful criticism of the military's policy on gay soldiers - and her challenge to the law - if President Obama nominates her to the court. But the view from Harvard is more complex.

Far from being rebellious, her colleagues here say, Ms. Kagan bowed to the will of Lawrence H. Summers, then the president of the university and now director of Mr. Obama's National Economic Council. Mr. Summers had appointed her dean and did not want Harvard to fight the federal government. Ms. Kagan did not join in when more than half the law school faculty publicly urged him to sue the government over the law that tied federal money to military recruitment.


So Kagan did in fact bar the military from using Harvard's recruitment office. After the terrorist attacks of 2001, the Bush administration expanded existing rules so that all federal funds could be revoked from a university if it's law school barred recruiters. (In 1979 Harvard Law had barred military recruiters from using its Office of Career Services.)

The change meant that Harvard faced a loss of $328 million in federal funds, or about 15 percent of its operating budget, almost none of which went to the law school. At that point, in 2002, the law school, under Dean Robert Clark, relented and permitted the military recruiters in its placement office.

Ms. Kagan became dean the next year and followed the same policy. But she also issued strong statements against "don't ask, don't tell."


Seelye found some left-wing agitators to better place Kagan in the mushy middle, though that's only at Harvard:

Some were disappointed that said she did not back her words with actions and challenge the government.

"Harvard was not a leader on this issue, and that was very painful," said Amanda C. Goad, 31, a lawyer in New York who was president of HLS Lambda, a gay student rights organization, when she attended the law school. But Ms. Goad, who graduated in 2005, said, "Dean Kagan was trying to manage a very difficult situation, and it wasn't an issue she could simply or easily resolve in our favor."


Seelye ended with this image accompanied by a photo proving Kagan's pro-military bona fides:

Capt. Kyle Scherer, 25, who graduated from the law school last year and is now a military intelligence officer with the Army in Afghanistan, said by phone last month from Kabul that Ms. Kagan always supported students interested in the military. When recruiters came on campus, Ms. Kagan would send out e-mail messages, saying, in effect, "we distinguish between those who serve their country and the discriminatory policy under which they serve."

Last year, when he was promoted from first lieutenant to captain in the Massachusetts Army National Guard, he invited her to the ceremony and gave her the honor of pinning his captain's bars on his shoulder.