05/10/2010 08:25 pm ET | Updated May 25, 2011

Swiftboating General Kagan on DADT Is Bad Politics and Bad Policy

Some self-described progressives suggest that Supreme Court Justice nominee Elena Kagan should be "bashed" for standing up for gay patriots denied the right to serve in our military. I could not disagree more: if ever America needs strength and nuance, it's on issues of national security and equality.

The line of thinking goes something like "if you deny the military on campus it is like denying the flag or the President and estranges you from America. Just concede the issue so you can get military voters." I disagree on both counts.

First off, standing up for equality does not ipso facto estrange us from America. Dean Kagan's opposition to the military recruiters issue was not based upon opposition to the military as an institution, but in support of gay patriots wishing to serve and in defense of Harvard's non-discrimination policy which preceded her deanship. Then-Dean Kagan pressed for the change in military law and equality policy, joining the ranks of no less a conservative as Barry Goldwater who said, "you don't need to be straight to fight and die for your country. You just need to shoot straight."

Additionally, when the anti-military smear was leveled during her Solicitor General nomination hearings, young veterans themselves attested that Dean Kagan welcomed veterans on campus, writing "as Iraq War veterans who currently attend Harvard Law School, we wanted to inform the Committee of Dean Kagan's strong record of welcoming and honoring veterans on campus."

I attended University of California Hastings College of the Law in the early 1990s when Don't Ask, Don't Tell was initiated and the issue raged on campuses from California to Cambridge. Our stance as U.C. Hastings students was simple: open your recruiting to all of us based upon our school's non-discrimination policies or invite our students to interview at an off-campus location. The U.C. Regents and the Supreme Court ultimately disagreed, and the debate over DADT continues to this day. But to say that we were denying the military because we didn't think they should exist is patently false. In fact, some of my colleagues were veterans and one said quite often "the air force didn't care about my sexuality when they asked me to jump out of planes." Years later, when the SF School Board moved to cancel JROTC because - some said - they did not want to have any military presence, I took the "keep JROTC" view and voted for Prop V, a ballot measure drafted by JROTC students urging the Board to reconsider the cancellation because I believe JROTC has lifted up hundreds of thousands of young Americans and surely has a place in our community. Prop V passed and the SF School board voted 4 to 3 in favor of reinstating physical education credit for students enrolled in JROTC. Compromise and nuance worked. As my own experience has taught me, freedom to serve is a national security issue that requires nuance as we stand up for our patriots, gay and straight alike. No reason, therefore, to concede the point when we could benefit from a strong and nuanced national discussion on the march to equality from U.C. Hastings to Harvard.

Second, the political premise of "concede a point to gain votes" is wrong. Indeed, Democrats take pride in our efforts to separate the war from the warrior, and to encourage a culture of service among all Americans. My colleagues on the DNC Veterans & Military Families Council and allies around the country work tirelessly to promote veterans issues, support military families, elect Fighting Dems, and get out the vote. In 2008, the efforts paid off, considering that President Barack Obama received tremendous support from active duty service-members and military communities. (See Brandon Friedman's November 2008 HuffPost article demonstrated for a breakdown).

Yes, the issue of Don't Ask Don't Tell will continue to divide Americans until it is rescinded. (And change is coming, with 57% of Americans supporting the right of our lesbian and gay patriots to serve openly in the military). But there is a huge difference between banning the military recruiters or ROTC on campus because you hate the military and restricting their access when it conflicts with anti-discrimination policies. There is nothing in the record to suggest that Elena Kagan spoke against the military and everything to suggest that she went out of her way to defend the anti-discrimination policy and to welcome veterans. So to suggest that progressives simply allow anyone - much less our President's Supreme Court nominee - to be swiftboated on security and equality to gain political points is both bad politics and bad policy.