MIXED MESSAGES FROM JUSTICE KAGAN

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Submitted by Prof. Diane Mazur
University of Florida College of Law>

Much of the opposition to Elena Kagan's nomination to the Supreme Court came from her blistering criticism of "don't ask, don't tell." She has called the policy "a profound wrong, a moral injustice of the first order." As dean of Harvard Law School, she refused to directly sponsor military recruiters because they could not follow the same non-discrimination rules that applied to every other employer. Instead, veterans at Harvard privately sponsored the military's interviews. Kagan believed the military's recruiting success showed it always had full and complete access to students despite any differences in protocol.

For a number of senators, Kagan's beliefs and actions demonstrated an intolerable level of disrespect for the military. Her supporters, however, emphasized how respectful and attentive-nearly reverential-she was in her personal interactions with military veterans. It seemed to cushion her opposition to "don't ask, don't tell" for a least a few senators. Advocates for repeal likely believed that Kagan would bring a reliable vote against the policy to the Supreme Court.

Or perhaps not. The part of Kagan's confirmation hearing that received no attention was her criticism of a court ruling that made it more difficult for the military to defend "don't ask, don't tell." Witt v. Department of the Air Force was a 2008 decision of the Ninth Circuit Court of Appeals holding that the military could not discharge gay service members without showing they had actually caused some harm to the military. Under the Constitution and its protection of individual liberty, the military could not simply assume that the presence of gay people was always a problem. It would have to make that showing in each individual case, something that in practice would be much more difficult to do.

Kagan didn't agree with Witt. After conferring with the Department of Defense, she concluded it was "a kind of strange thing" that the military would have to show harm in an individual case. She predicted it would "disrupt military operations" if the military actually had to prove the need for "don't ask, don't tell," and she hoped that future litigation would erase the requirement.

How does one square those two very different sides of Justice Kagan? How can someone believe that a policy is a moral injustice and at the same time complain when a federal court finds it is a constitutional injustice as well? By the way, military law routinely requires proof of prejudice to good order and discipline. There's nothing "strange" or "disruptive" about it at all.

The answer may lie in a common misunderstanding about healthy civil-military relations. I fear the new justice believes that all we need for good civil-military relations is for civilians to display enough respect for the military. This mistaken view teaches that civilians can disagree with the military from a distance-provided they temper it with ostentatious admiration-but they should not directly engage the military or insist that it stand the test of facts and proof.

Civilian control of the military is hard work. It requires engagement, not disengagement, between the military and all three branches of civilian government. It also requires assessment of the proper role of military judgment in our constitutional design because, in the end, civilians have the responsibility to decide the right course of action. Civilians-especially justices of the Supreme Court-should never be complicit in allowing the military to assert facts without evidence or substance.

Or is that the price of admission to the Supreme Court?

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