Sen. McCain: I will not support Kagan - USA TODAY.com

July 7, 2010

By John McCain

In 1987, I had my first opportunity to provide "advice and consent" on a Supreme Court nominee. At that time, I stated that the qualifications essential for evaluating a nominee for the bench included "integrity, character, legal competence and ability, experience, and philosophy and judicial temperament." On that test, Elena Kagan fails.

When Kagan was dean of Harvard Law School, she unmistakably discouraged Harvard students from considering a career in the military — even while claiming to do otherwise — by denying military recruiters the same access to Harvard students that was granted to white-shoe law firms. Kagan did so because she believed the military's "don't ask, don't tell" policy to be "a profound wrong — a moral injustice of the first order."

While Kagan is entitled to her opinion, she was not entitled to ignore the law that requires universities to allow military recruiters on campus under terms of equal access with all other recruiters. The chief of recruiting for the Air Force's Judge Advocate General Corps described the impact of Kagan's changes by saying that "Harvard is
playing games." The Army's report from that same period was even more blunt, stating, "The Army was stonewalled at Harvard."

Kagan tried to justify her actions in terms of Harvard's anti-discrimination policy and sought a compromise by asking the law school's Veterans Association to host military recruiters. However, the association responded to the dean, "Given our tiny membership, meager budget, and lack of any office space, we possess neither the time nor the resources ... of the Harvard Law School Office of Career Services." An Air Force recruiter wrote Pentagon officials, "Without the support of the Career Services Office, we are relegated to wandering the halls in hopes that someone will stop and talk to us."

'The facts are otherwise'

Kagan's claim that she was bound by Harvard's anti-discrimination policy is belied by the fact that her predecessor allowed military recruiters full official access — a policy Kagan changed. And while Kagan barred military recruiters' access to the school, Harvard continued to receive millions of dollars in federal aid.

During her confirmation hearing last week, Kagan asserted that Harvard Law School was "never out of compliance with the law ... in fact, the veterans association did a fabulous job of letting all our students know that the military recruiters were going to be at Harvard." She went on to assert, "The military at all times during my deanship had full and good access." The facts are otherwise.

While I strongly disagree with Kagan, I take no issue in terms of her nomination with her opposition to President Clinton's "don't ask, don't tell" policy. She is free to have her own opinion. Kagan was not free, however, to ignore the Solomon Amendment's requirement to provide military recruiters equal access because she and many of her colleagues opposed "don't ask, don't tell." In short, she interpreted her duties as dean at Harvard to be consistent with what she wished the law to be, not with the law as written.

'Beyond public advocacy'

In the end, Kagan's interpretation of the Solomon Amendment was soundly rejected by the Supreme Court. By changing the policy she inherited and restricting military recruiter access when the prevailing law was to the contrary, Kagan stepped beyond public advocacy in opposition to a policy and into the realm of usurping the prerogative of the Congress and the president to make law and the courts to interpret it.

I have previously stated that I do not believe judges should stray beyond their constitutional role and act as if they have greater insight than representatives who are elected by the people.

Given the choice to uphold a law that was unpopular with her peers and students or interpret the law to achieve her own political objectives, she chose the latter. I cannot support her nomination to the Supreme Court where, based on her prior actions, it appears unlikely that she would exercise judicial restraint.

On the main campus of Harvard University stands Memorial Church, dedicated to the memory of Harvard's veterans who laid down their lives for their country, including some from the greatest families in American history, such as the Roosevelts and the Kennedys. During this Independence Day holiday week, we should also honor those who encouraged our military men and women to serve our country and a cause greater than themselves.

Let us hope that the day will come when leaders of our country's most elite schools fully embrace military service and encourage their students to commit their lives and talents to their nation and one of its great institutions, the U.S. military.

John McCain is a Republican senator from Arizona.