Obama's likely nominee will have to defend stance on military recruitment

Foes may target Kagan's stance on military recruitment at Harvard

Four months after becoming dean of Harvard Law School, Elena Kagan sent an e-mail to students and faculty lamenting that military recruiters had arrived on campus, once again, in violation of the school's anti-discrimination policy. But under government rules, she wrote, the entire university would jeopardize its federal aid unless the law school helped the recruiters, despite the armed forces' ban on openly gay members.

"This action causes me deep distress," Kagan wrote that morning in October 2003. "I abhor the military's discriminatory recruitment policy." It is, she said, "a profound wrong -- a moral injustice of the first order."

Her stance put Kagan squarely in sync with professors at Harvard and other law schools -- and wholly out of sync with the Supreme Court, which later ruled unanimously that the schools were wrong. Four years after that ruling, Kagan, now the U.S. solicitor general, is a leading candidate to succeed retiring Justice John Paul Stevens. Conservatives have signaled that if President Obama nominates her, her stance on this issue -- like perhaps no other in her career -- dangles as ripe fruit that opponents would grab to thwart her confirmation.

"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."

The Washington Post