Sen. McCain Says Kagan Was "Aiding And Abetting Violation Of A Law"

May 13, 2010 11:47 am ET — Matt Finkelstein

One of the most common objections to Solicitor General Elena Kagan's nomination to the Supreme Court is the false claim that, as dean of Harvard Law School, she "banned" military recruiters from campus over her objection to "Don't Ask, Don't Tell" (DADT).  Last night on Fox News, Sen. John McCain (R-AZ) told Sean Hannity that he is "outraged" by Kagan's actions, suggesting that she was "aiding an abetting violation of a law." 

MCCAIN: Well, I'll give the process a chance to work its way through. But I am still outraged. You know the members of the ROTC at Harvard had to go to MIT to do their training. Now here's a school -- the Harvard Law School can produce all of our Supreme Court justices, but Harvard will not allow recruiters to help young men and women serve their country in uniform.  And she called it a policy. But it wasn't a policy, it was a law. "Don't Ask, Don't Tell" is a law. ...And so she was encouraging, it seems to me -- and I'll be glad to let her make her case, but seems to me she was aiding and abetting violation of a law.


McCain's criticisms are incredibly dishonest.  For starters, many academic institutions have long held bans on ROTC, including Columbia University, where McCain recently sent his daughter (and his money).  To blame Kagan for a policy that took effect in 1969, when she was only nine years old, and isn't particular to the law school is absurd.

Furthermore, Kagan did not ban the military from Harvard's campus.  In reality, she upheld an existing policy disallowing employers who discriminate based on sexual orientation from participating with the university's Office of Career Services, while facilitating military recruitment through the law school's Veterans Association.    

It's true that Kagan opposes the military's discrimination against gays, but that is far from evidence that she is anti-military.  In fact, the opposite is true.  As Kagan said in 2005, "The importance of the military to our society -- and the great service that members of the military provide to all the rest of us -- heightens, rather than excuses, this inequity."

ThinkProgress has more on McCain's comments.  For a comprehensive look at Harvard's policies, click HERE.