While Republicans may be trying to play this up into some kind of story about how Elena Kagan hates our troops and prefers well — the type of people who “listen to a lot of Lady Gaga”, I think they may be barking up the wrong tree here. Number 1: as you can see from the clip above created by our men in uniform in Afghanistan, there are lots of our troops who appear to enjoy Lady Gaga just fine.

Number 2: There just doesn’t seem to be much of a story at all — except the one they are inventing. This yarn they are weaving is so boring, it’s …zzzzZZZ, wha? Oh, where was I? Right…

Looks like Kagan very simply did her job in an administrative and uninteresting capacity, while joining the majority of the nation (54%) in thinking DADT is discriminatory and should be eliminated.

Here’s the simple and extremely tedious facts of what went down. Don’t believe the hype. This is such a non-issue. (Thanks Media Matters).

CLAIM: Kagan’s actions and statements on Don’t Ask, Don’t Tell and military recruiters were extremist and hypocritical. In an April 18 article, The Washington Post noted that Kagan had called Don’t Ask, Don’t Tell “a profound wrong — a moral injustice of the first order” and said her decision to continue allowing military recruiters to access Harvard’s career center “causes me deep distress. … I abhor the military’s discriminatory recruitment policy.” The Post quoted Ed Whelan suggesting that Kagan’s quote was somehow “extreme”:

“For someone who has been so guarded on so many issues, she used strikingly extreme rhetoric. ‘Moral injustice of the first order’ would seem fit for something like the Holocaust,” said Ed Whelan, president of the conservative Ethics and Public Policy Center. “This is one issue that provides some jurisprudential clues as to how much her reading of the law will be biased by her policy views. If she is the nominee, that is an angle that I would press.”

Whelan has separately clamed that the fact that Kagan relented to Bush administration pressure to allow military recruiters to access the career center is evidence that Kagan is a hypocrite who engaged in “cheap and contemptible moral posturing.”

REALITY: Kagan’s objections to DADT are mainstream, and her willingness to comply with and, as solicitor general, defend the Solomon Amendment demonstrate devotion to the rule of law.Kagan’s moral objection to Don’t Ask, Don’t Tell is hardly “extreme.” For example, Adm. Mike Mullen, the chairman of the Joint Chiefs of Staff, has suggested that the ban on openly gay service members compromises the military’s “integrity.” Moreover, Kagan’s decision to abide by the Solomon Amendment doesn’t indicate hypocrisy; it indicates a commitment to the rule of law.

FACT: Kagan allowed military recruiters access to Harvard Law School’s Office of Career Services. In the 1990s, based on its anti-discrimination policy, Harvard Law School refused to allow military recruiters to use the school’s Office of Career Services (OCS) because of the military’s discriminatory Don’t Ask, Don’t Tell policy. In 2002, after the Bush administration threatened federal funding at Harvard, Kagan’s predecessor as dean created an exception to Harvard’s anti-discrimination policy and allowed military recruiters access to OCS. When Kagan became dean in 2003, she continued to allow military recruiters access to OCS.

FACT: After an appellate court — including a Reagan appointee — ruled Solomon Amendment unconstitutional, Kagan prohibited Harvard’s career office from working with recruiters for one semester. In 2004, a three-judge panel of the 3rd Circuit held 2-1 in FAIR v. Rumsfeld that the Solomon Amendment violated First Amendment free-speech rights: “The Solomon Amendment requires law schools to express a message that is incompatible with their educational objectives, and no compelling governmental interest has been shown to deny this freedom.” Judge Walter Stapleton, aReagan appointee, joined the majority opinion in the case. Following the 3rd Circuit’s ruling, Kaganreinstated the ban against military recruitment through OCS for one semester in 2005. After the Bush administration threatened to revoke Harvard’s federal funding, Kagan once again granted military recruiters access to OCS. In 2006, the Supreme Court reversed the 3rd Circuit decision.

FACT: During that one semester, students still had access to military recruiters via the Harvard Law School Veterans Association. The New York Times noted on May 6 that “even when [Kagan] … 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.” As Kagan explained in a September 2005 letter to her colleagues:

The Law School’s anti-discrimination policy, adopted in 1979, provides that any employer that uses the services of OCS to recruit at the school must sign a statement indicating that that it does not discriminate on various bases, including sexual orientation. As a result of this policy, the military was barred for many years from using the services of OCS. The military retained full access to our students (and vice versa) through the good offices of the Harvard Law School Veterans Association, which essentially took the place of OCS in enabling interviews to occur.


I reinstated the application of our anti-discrimination policy to the military (after appropriate consultation with University officials) in the wake of the Third Circuit’s decision; as a result, the military did not receive OCS assistance during our spring 2005 recruiting season.

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