There will be no need for the Senate to waste their time interviewing President Barack Obama's nominee for the Supreme Court if Newt Gingrich has his
May 16, 2010

There will be no need for the Senate to waste their time interviewing President Barack Obama's nominee for the Supreme Court if Newt Gingrich has his way. Fox News' Chris Wallace asked Gingrich Sunday what he thought of the nomination of Elena Kagan.

"I think the president should withdraw it," said Gingrich. "You don't need a lot of hearings."

"The fact that she led the effort -- which was repudiated unanimously by the Supreme Court -- to block the American military from Harvard Law School," he said.

(NICOLE:) Does it surprise you that once again, Gingrich is cherry-picking his facts in a partisan hatchet job? Nope, me neither:

The facts behind the decision not to allow military recruiters at Harvard are subtler than Kagan’s critics make them out to be. For one thing, Kagan wasn't the one who barred the recruiters. Her predecessor as dean, Robert Clark, has explained that the military was barred from the law school’s Office of Career Services under its antidiscrimination policy since 1979—long before Kagan had even entered Harvard Law School, much less taken the job as dean.

Military recruiters were barred just as any employer that systematically rejects students on the basis of race, gender, or sexual orientation would have been because of the military's "don't ask, don't tell" (DADT) policy. Even then, the military continued recruitment on campus through a veterans organization. The ban on military recruitment, which protested DADT and affirmed the school’s commitment to LGBT students, did not actually hamper the military’s attempts to recruit at Harvard.

In 2002, the Pentagon threatened to pull federal funding for all of Harvard if the law school did not allow military recruiters back in. The law school receives no money from the federal government, but the medical and other faculties received $400 million a year. In 2003, Kagan became dean and had to respond. An appeals court ruled in 2004 that the Pentagon's threats were unconstitutional, but in the meantime Kagan did allow the recruiters back in while encouraging students to protest DADT on campus.

A group of law schools continued challenging the Pentagon’s threats in court, but Kagan and Harvard declined to join the lawsuits. Instead, Harvard Law School filed a brief coauthored by Kagan with the Supreme Court, arguing that it treated the military the same as any discriminatory employer. Goldman Sachs, the ACLU, or any other employer would have been banned if they had a stated policy of not hiring individuals based on their race, gender, or sexual orientation. Kagan argued Harvard was providing the “equal access” the Pentagon demanded. Kagan's brief did not argue, as some other schools did, that the Pentagon was acting unconstitutionally.

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