06/24/2010 04:09 pm ET Updated May 25, 2011

Clearing the Air on Swirling Mistruths About Kagan's Military Stance

On Monday, I will have the chance to introduce Elena Kagan to the Senate Judiciary Committee as our confirmation process begins in earnest. Before I do, I wanted to clear the air about a mistruth that some are determined to keep recycling and recirculating -- I guess not surprising, but nonetheless disappointing when we're talking about a nomination for the Supreme Court where you'd think the Senate would actually insist on a debate on the merits.

Instead, misinformation, distortions and flat-out untruths about Elena Kagan's support of the military are growing predictably louder.

Specifically, I was more than a little surprised to hear some Republican Senators recycling their disproven claims that Kagan is somehow "anti-military" -- claims that other Republicans, including Sen. Scott Brown, have already -- quite admirably -- knocked down.

The simple truth is this: Dean Kagan never banned the military from Harvard Law School. Every year that she was Dean of Harvard Law, the United States military recruited on campus. And this is partly why military students at Harvard have overwhelmingly supported her -- both then and now.

Moreover, as a veteran, and as a veteran who actually opposed the ban many Ivy League schools had on ROTC and recruitment reaching back to the Vietnam era, I know personally that Elena Kagan is an ardent supporter of our service members and their families. It's who she is and it's how she's led. Just look at everything she's said and every action she's taken.

Here are the facts.

Harvard adopted a non-discrimination policy in 1979 -- decades before Dean Kagan arrived. That policy prohibited any form of discrimination based on race, color, sex, sexual orientation, gender identity, religion, age, national or ethnic origin, political beliefs, veteran status, or disability. So when the military adopted "Don't Ask Don't Tell" more than a decade later, Harvard's non-discrimination policy prevented the armed services from recruiting directly through the school's Office of Career Services. But that was all -- the military was still free to recruit elsewhere on campus, and student organizations continued to support this recruiting.

In 2002, the year before Kagan became dean, Harvard made an exception to its non-discrimination policy, allowing the military to use the Office of Career Services. Following an appeals court ruling in 2004, Kagan reinstated Harvard's policy precluding the military from using the Office of Career Services -- but still permitting the military access via student organizations.

Like me, Kagan has never made it a secret that she opposes "Don't Ask Don't Tell" -- so, by the way, do Secretary Gates and Admiral Mullen.

But Kagan's actions as Dean don't speak to her political beliefs -- they simply reflected current law. That's why in 2005, after the Department of Defense voiced objections and the Supreme Court took the case, Kagan respected the likely outcome, kept faith with the law once again, and reversed the policy -- and so today, military recruiters once again have unfettered access to career services and students.

The facts make it clear: At no time were military recruiters barred from the campus. And even when they were not allowed to use the career center, Dean Kagan went out of her way to provide them with interview space on campus, even though other universities weren't doing this.

Elena Kagan is, in fact, a strong supporter of our men and women in uniform -- which is why she has broad support, personal support, from military students. She held annual dinners for veterans and the wives of service members while she was Dean.

Even military students who opposed Harvard's policy have confirmed Kagan's support for the military. After Kagan's nomination to Solicitor General, three former Harvard Law School students who served in the military came to her defense. In a letter to the Washington Times, they criticized Harvard's longstanding policy but also stated, "this position has not diminished our appreciation for Miss Kagan's embrace of veterans on campus. During her time as dean, she has created an environment that is highly supportive of students who have served in the military... Indeed, every year, Miss Kagan makes a point to mention the number of veterans in the first-year class during her welcome address to new students. Under her leadership, Harvard Law School has also gone out of its way to highlight our military service, publishing numerous articles on the school Web site and in alumni newsletters. These are not actions of an "anti-military zealot," and greater care should be exercised before someone is labeled as such."

Judge people by what they say and do when they're not under the political microscope. And in Kagan's case, long before she was a nominee for the Supreme Court, she went to West Point and spoke to the cadets -- and her remarks capture her personal feelings about the military. She said, "I am in awe of your courage and your dedication, especially in these times of great uncertainty and danger. I know how much my security and freedom and indeed everything else I value depend on all of you."

Bottom line: I want a Supreme Court Justice who believes what Elena believes about the courage and character of our military. And I hope we can have a new dialogue grounded in the facts of what this accomplished nominee actually has stood for and what she will bring to the Supreme Court. America deserves nothing less -- and the Senate owes much more.