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Solicitor General Nominee Should Respect Solomon Amendment
Homosexualists who want to use government power to impose their agenda on the military know that in the new Obama administration, gpeople are policy.h To achieve their most radical goals through the courts, these activists surely are counting on Elena Kagan, Pres. Barack Obamafs nominee for Solicitor General of the United States. If confirmed by the Senate, Kagan will be in a position to make or break scores of government policies and laws affecting the military, without the inconvenience of having to deal with elected representatives of the people in Congress.

The Solicitor General, who is legally required to be glearned in the law,h supervises and conducts government litigation before the U.S. Supreme Court. He or she determines which cases to appeal to the Supreme Court, and usually presents oral arguments in the most high-pressure environment any lawyer can face. (Ms. Kagan, Dean of Harvard Law School, has no experience before the Supreme Court.)

The Solicitor Generalfs office participates in the preparation of petitions, briefs, and other papers filed by the government in Supreme Court proceedings. In addition, the office reviews gall cases decided adversely to the government in the lower courts to determine whether they should be appealed and, if so, which position should be taken.h

When the Solicitor General allows adverse decisions to stand without appeal, lower-court judges sometimes are empowered to reinterpret, weaken, or incrementally nullify duly enacted laws. An example relevant to the Kagan nomination involves the Solomon Amendment, a law named for the late New York Republican congressman and former Marine Gerald Solomon. In 2003 a consortium of law schools and faculty called the Forum for Academic and Institutional Rights (FAIR) challenged the Solomon Amendment in the federal courts.

FAIR argued that Congress erred in passing a law that withholds federal funding for colleges and universities if they deny access for military recruiters on the same basis as civilian employers invited to participate in on-campus career days. This mandate, they said, is not fair to colleges and universities that forbid discrimination based on several factors, including sexual orientation.

FAIR further maintained that colleges and universities should be permitted to accept federal funds even if they refuse to provide equal access to any employer, including the military, which does not accept homosexual applicants. This presentation wrongly implied that the armed forces are no different than any other gequal opportunity employer.h

In November 2004 the U.S. Court of Appeals for the Third Circuit agreed with FAIRfs argument and declared the Solomon Amendment unconstitutional. The Solicitor General appealed the case, FAIR v. Rumsfeld, to the U.S. Supreme Court. Prof. Elena Kagan was one of 54 law school faculty members who filed an amicus brief supporting FAIRfs legal argument against the amendment.

Voting 8-0, (new Justice Sam Alito had not heard oral arguments) the Supreme Court upheld the constitutionality of the legislation, and firmly rejected FAIRfs argument. If the Kagan amicus brief had any merit at all, Justice Ruth Bader Ginsburg and other liberals on the court would have found a reason to agree. Instead, the Supreme Courtfs opinion was a unanimous rejection of the FAIR/Kagan argument.

The outcome of this case would have been dramatically different if Dean Kagan had been the Solicitor General instead of a law professor endorsing a losing argument. Absent an appeal, the Third Circuit ruling would have nullified the Solomon Amendment by judicial fiat, without any review by the Supreme Court.

Army veteran Flagg Youngblood of the Young Americafs Foundation, who advocates for student rights, takes issue with elite schools that claim they have a right to taxpayer funding while simultaneously barring our military. In a Washington Times op-ed titled gSolicitor General FlimFlam,h Youngblood noted that six major universities„ŸStanford, Caltech, Columbia, the University of Chicago, Harvard, and his own alma mater Yale„Ÿare still assigning gsecond-class, back-of-the bus statush to students who want to serve their country.

In 2006-2007 Youngbloodfs gShameful Sixh schools accepted almost $5 billion in taxpayer funding while continuing various strategies to circumvent the Solomon amendment. Students must travel miles away to other campuses if they want to take advantage of military opportunities that academic elites disdain with haughty contempt. Even Pres. Barack Obama, who was asked about this issue during the 2008 campaign, said that he disagrees with anti-military policies on college campuses„Ÿthe same practices that his own nominee, Elena Kagan, has endorsed.

Members of the Senate should question Dean Kagan closely and determine whether her elitist views in the Solomon Amendment case place her so far out of the judicial mainstream that she does not merit confirmation. Questions are even more important because easy confirmation would put Kagan on the short list for possible nomination to the Supreme Court.

For starters, members of the Judiciary Committee should ask Kagan whether she can put aside her personal views and vigorously defend the Solomon Amendment, which protects the militaryfs right of equal access to inform college students of available opportunities.

The senators also should ask Kagan whether she will defend the 1993 law stating that homosexuals are not eligible to serve, Section 654, Title 10, which is usually mislabeled gDonft Ask, Donft Tell.h The federal courts of appeal have upheld that statute several times. Will she follow those courts and zealously defend the law, or will she take the opposite position and undercut existing law by declining to appeal adverse lower-court rulings?

Senators and the American people need to know whether Kagan really believes that the military is no different from other employers. If this is her view, will she respect Supreme Court precedents recognizing the principle of gdeferenceh to the executive branch and Congress on matters of regulation and law affecting the military?

If Dean Kaganfs answers are not satisfactory, senators should not vote to confirm her as America's next Solicitor General. Enormous power should not be entrusted to an official whose liberal philosophy and skewed priorities would do great harm to the all-volunteer force.
Posted by: Sherry 2009-02-04
http://www.rantburg.com/poparticle.php?ID=261629