Federal Courts and Nominations

Kagan at West Point: A Speech You Might Hear More About


Undoubtedly, over the next handful of weeks, as people pore over her papers and closely read her remarks, we’re going to learn more about Elena Kagan.

Already, her supporters are pointing to a speech she gave to cadets at West Point in 2007, while she was the Harvard Law dean, about the Constitution and the rule of law. (In this Huffington Post story, Doug Kendall called the speech “powerful” and that it gave “powerful examples of what fidelity to the Constitution and the law entails.”

Some of the more interesting or provocative excerpts:

On giving the speech:

I don’t accept many outside speaking invitations; this may be the only talk of this kind that I’ll give this year. I accepted this invitation primarily to thank all of you senior cadets — and to wish you godspeed as you go forward to serve your country and your fellow citizens in the greatest and most profound way possible.

On Don’t Ask, Don’t Tell:

I have been grieved in recent years to find your world and mine, the U.S. military and U.S. law schools, at odds indeed, facing each other in court – on one issue. That issue is the military’s don’t-ask don’t-tell policy. Law schools, including mine, believe that employment opportunities should extend to all their students, regardless of their race or sex or sexual orientation. And I personally believe that the exclusion of gays and lesbians from the military is both unjust and unwise. I wish devoutly that these Americans too could join this noblest of all professions and serve their country in this most important of all ways.

On West Point’s Constitution Corner (pictured):

There is a remarkable place on this campus, which suggests what approach that the military should adopt, and indeed long has adopted – the approach, that is, of honoring the law and abiding by the constraints it imposes. The place, which I’m sure all of you know, is Constitution Corner. . . . Constitution Corner has five plaques . . . . The fifth plaque is titled “Loyalty to the Constitution,” and begins with the following statement: “The United States boldly broke with the ancient military custom of swearing loyalty to a leader. Article VI required that American officers thereafter swear loyalty to our basic law, the Constitution.”

I do not think I have ever come across a more moving tribute to the rule of


On Communicating with Lawyers:

Insist that your lawyer understand your problems and their urgency. There’s nothing worse than a lawyer who just tells you no, without giving you any ways to achieve your most essential purposes. The best lawyers, even when they have to say no, explore with you and discover alternative possibilities – ways of complying with the law and accomplishing your principal goals. When lawyers don’t do this naturally, clients – that’s you – should force them to do so.

On When Not to Heed Lawyers’ Advice:

Don’t think that law is everything. Even when the lawyers clear something, it may not be the right thing to do. It may be unethical, even if it’s not illegal. Or it may be just plain dumb. I was amazed, when I worked in government, how often the legal question, once recognized, became the only question. That shouldn’t happen. It makes for bad policy. And frankly, it makes for bad law too, because when lawyers begin to think that they are effectively making the critical decisions, and not just advising on one aspect of them, they tend to stop thinking as lawyers – which, if the rule of law is to be maintained, someone has to do.


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