The Center for Military Readiness, an independent public policy organization that specializes in military/social issues, opposes the nomination of Solicitor General Elena Kagan to the U.S. Supreme Court.  CMR President Elaine Donnelly issued the following statement in response to the Kagan nomination:

“It is unfortunate that President Barack Obama has chosen to replace the only military veteran on the Supreme Court with extensive wartime experience with a nominee whose only significant record indicates deliberate hostility and opposition to laws protecting the culture and best interests of the American military.”  

Donnelly continued, “Senators considering this nomination should question Elena Kagan’s flawed logic and anti-military attitude that she expressed by signing an amicus brief challenging the Solomon Amendment in Rumsfeld v. Fair.  It is significant that the U.S. Supreme Court upheld the constitutionality of that legislation, which protects equal access for military recruiters on college campuses, with a unanimous (8-0) vote.  Even Justice Ruth Bader Ginsberg did not agree with Kagan’s anti-military views.”  

“In addition, Elena Kagan’s record as Solicitor General should be considered a serious problem.  In her current capacity, Kagan failed to appeal the unjustified and problematic procedural ruling of the Ninth Circuit Court of Appeals in a case challenging the 1993 law stating that homosexuals are not eligible for military service.  (Witt v. Department of the Air Force).”  

As reported by Ed Whelan, President of the Ethics and Public Policy Center on National Review Online, Kagan’s irresponsible failure to appeal the rogue procedural ruling of the Ninth Circuit in the Margaret Witt case contradicted assurances she had given to Sen. Jeff Sessions (R-AL) in a post-confirmation hearing letter to Sen. Arlen Specter (then-R-PA) dated March 18, 2009.

Background:

References to a “Don’t Ask, Don’t Tell” (DADT) law are not accurate because there is no DADT law.  Legislative history indicates that members of Congress considered then-President Bill Clinton's DADT proposal, but realized that it was indefensible in court.  Instead, they voted for the current law, (Section 654, Title 10, U.S.C.) which should have been given a more accurate name, such as the “Military Personnel Eligibility Act of 1993.”  

In fifteen findings that remain valid today, the law codified long-standing Defense Department regulations affirming that homosexuals are not eligible for military service.  Significantly, the phrase ‘sexual orientation,’ which is key to DADT, appears nowhere in the law. 

The only “compromise” involved allowed the Clinton Administration to continue the unwise policy of not asking "the question” about homosexuality that used to be on induction forms.  The law provides, however, that the inquiry regarding homosexuality can be reinstated by the Secretary of Defense at any time.

Confusion persists because the convoluted DADT concept, which the Clinton Administration imposed on the military with administrative regulations announced on December 23, 1993, is not consistent with the law that Congress actually voted for with bi-partisan veto-proof majorities in both Houses.  Federal courts have upheld the 1993 law as constitutional several times, and it enjoys widespread support among members of the military.  

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*       Justice Alito has ROTC background and served on active duty (U.S. Army Signal Corps) for a few months, but spent most of his time in the military as a member of the inactive Reserve.  Justice Kennedy served in the California National Guard in 1961.  Unlike the others, Justice Stevens served on active duty as a Navy cryptologist in time of war, 1941-1945, in the Pacific.  He is a liberal, but declared in an interview that the Supreme Court would benefit from a member with military experience.  This is an excerpt from an interview with Jeffrey Toobin in the New Yorker:

“Veterans of the Second World War dominated American public life for decades, but Stevens is practically the last one still holding a position of prominence. He is the only veteran of any kind on the Court. (Kennedy served briefly in the National Guard; Thomas received a student deferment and later failed a medical test during Vietnam.) ‘Somebody was saying that there ought to be at least one person on the Court who had military experience,’ Stevens told me. “I sort of feel that it is important. I have to confess that.’ ” 

·         After Stevens: What Will the Court be Like Without Its Liberal Leader?

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