Elena Kagan and Blind Faith in the Military

According to Alabama Senator Jeff Sessions, Supreme Court nominee Elena Kagan "punished the military and demeaned our soldiers as they were courageously fighting two wars overseas" when, as Dean of Harvard Law School, she declined to provide military recruiters the same access to campus resources that other employers enjoyed.

The Republican line of attack is surprising because conservatives have, for years, pretended that the debate over military recruiting was about whether or not the military would be able to hire the best lawyers. In 2006, when the Supreme Court voted unanimously to uphold the law which withholds federal funding from universities whose law schools treat military recruiters unequally, Chief Justice John Roberts wrote that recruiting "would be achieved less effectively if the military were forced to recruit on less favorable terms than other employers."

But the decade-long struggle over the issue never has been about hiring. Sessions's emphasis on whether or not Kagan demeaned U.S. troops illustrates that the real question always has been whether civilian institutions which dare to question the military are showing disrespect, and, if so, whether such disrespect should be punished.

Several years ago, I undertook a research project to assess Pentagon lawyers' claims that law schools were harming military recruiting. At the time, many law schools, including Harvard, were engaged in what was known as "minimal compliance" with the law. They provided military recruiters with access to their campuses, but took symbolic steps, such as relegating Pentagon representatives to inconvenient rooms, to express opposition to the "don't ask, don't tell" policy which prevents gays and lesbians from serving openly in uniform.

The evidence I collected showed that, contrary to the military's assertions, unequal treatment of recruiters did not impair efforts to attract the best law students into the JAG corps. One Navy JAG recruiting officer, for instance, told me in December 2003 that recruiting had become quite competitive over the previous seven years, that the Navy was able to recruit from the best law schools including Harvard and Yale, that the Air Force was nearly as competitive, and that the number of applications to the Army and Marine Corps exceeded "by far" the available slots each year.

It is therefore not surprising that when the Pentagon was pressed to present evidence to substantiate its claims about recruiting hardships in the JAG corps, military lawyers responded that, "the government is not obligated...to assemble and present a factual record that merely confirms the dictates of common sense."

Why did the military, courts and conservatives in Congress work so hard to make the case appear to be about military recruiting when there was no factual basis behind the argument? The answer can be found in the military's brief to the Supreme Court. Law schools' symbolic protest, the brief claimed, "sends the message that employment in the Armed Forces...is less honorable or desirable than employment with...other organizations." Although conservatives insist that schools are free to oppose military policy, their underlying goal was to show that questioning the military is disrespectful, and that such disrespect should be punished. Emphasizing this motive, however, would have been legally indefensible.

When seen in this light, the questioning of Elena Kagan reveals a failure on the part of our political institutions to exercise civilian control of the military. Whether or not one agrees with law schools who tried to enforce their own non-discrimination policies, the Pentagon played fast and loose with the facts and disguised a concern for disrespect and obedience with an argument about military recruiting, to say nothing of bullying university administrators and using personnel policy to express bigotry.

Rather than standing up to such affronts, Congress and the courts have been enablers, as we saw this week in the Sessions line of questioning. Congress's original passage of the Solomon amendment, conservatives' insincere claim that protest undermined recruiting, and the Supreme Court's willingness to allow the military to make unsubstantiated claims all suggest that some of our most powerful civilian leaders have failed to exercise civilian control of the armed forces.

Respect for the military can play a valuable role in public discourse, and Elena Kagan has demonstrated such respect throughout her career. But respect does not mean that one must abandon key principles just because the military says so. Maintaining civilian control requires civilians and political leaders to exercise reasoned judgment based on healthy skepticism. Respect can be dangerous if it becomes blind faith.