Alito May Favor Recruitment

The brewing battle in the Senate over the Supreme Court nomination of Samuel A. Alito, Jr. could affect the future of military recruitment at Harvard Law School. But even if Alito wins Senate approval, he might not join the court in time to cast a vote on the high-profile case regarding the Solomon Amendment, the 1994 law that allows the Pentagon to cut funds to universities that restrict military recruitment on campus.

The court’s decision in the case, Rumsfeld v. FAIR, will have immediate ramifications for Harvard. The Law School has tried to require all recruiters who use its career services office to sign a pledge stating that they will not discriminate against employees based on sexual orientation. The Pentagon’s “don’t ask, don’t tell” policy bars openly gay individuals from the military, but Harvard granted the military access to Law School resources this fall after the Pentagon threatened to cut over $400 million in federal funds to the University.

Although the Bush administration has backed the Solomon Amendment vigorously, Boston College law professor Kent Greenfield suggested that Alito might not adhere to the administration’s stance.

Greenfield is the president of the Forum for Academic and Institutional Rights (FAIR), a coalition of 38 law schools and law faculties that filed suit against the Pentagon to halt enforcement of the Solomon Amendment. Harvard is not a member of the coalition, but the University did sign a friend-of-the-court brief in September backing FAIR.

Greenfield said that Alito’s opinion in the August 2004 case of The Pitt News v. Pappert suggests that the nominee might support FAIR’s arguments.

In the Pitt News case, the college daily at the University of Pittsburgh challenged a Pennsylvania state law barring alcohol advertisements in student newspapers. A three-judge appellate panel struck down the law, ruling that it violated the newspaper’s First Amendment rights.

“[C]ourts must be wary that taxes, regulatory laws, and other laws that impose financial burdens are not used to undermine freedom of the press and freedom of speech,” Alito wrote.

If Alito applied the same standard to the Solomon Amendment case, he might back FAIR’s arguments, Greenfield said.

FAIR has asserted that the financial burdens imposed by the Solomon Amendment undermine law schools’ rights to express their disapproval of the “don’t ask, don’t tell” policy.

BUT WILL HE VOTE?

The court is scheduled to hear the FAIR case on Dec. 6. Meanwhile, the Senate Judiciary Committee has scheduled its hearings on the Alito nomination to begin on Jan. 9, with a full vote in the Senate tentatively slated for Jan. 20.

The court might not be able to reach a ruling in the complicated case by the time Alito—if he is confirmed—joins the bench, according to Langdell Professor of Law Martha A. Field ’65.

Alito could then choose to vote even if he did not hear oral arguments in the case, Greenfield said. The late chief justice, William H. Rehnquist, continued to cast votes even while he was in the hospital.

But according to Smith Professor of Law Martha L. Minow, “It would be a departure from the Court’s practice for a new justice to vote on a case if he was not on the bench at the time of argument.”

Justice Sandra Day O’Connor’s resignation from the court will not take effect until her successor joins the bench, but “in order for her vote to count in any case, she still has to be on the court at the time that the court actually releases her decision,” said Tyler Professor of Constitutional Law Richard H. Fallon.

If O’Connor has already left her post before the court decides the FAIR lawsuit—and if Alito does not vote on the case—then FAIR would only need four justices’ votes to uphold a federal appellate panel’s decision overturning the Solomon Amendment last year.

“The rule is that if the Supreme Court divides evenly, then the lower court decision stands,” Fallon said.

But if four justices support the Pentagon’s position, they could then order the full court—including Alito—to rehear the case, according to Fallon.

Of course, Alito’s decision would only affect the future of military recruitment if the other justices are deadlocked.

In May, appellate lawyer Howard J. Bashman, who filed a friend-of-the-court brief arguing that the Bush administration’s military recruitment policy is indeed constitutional, predicted that at least seven justices would vote to uphold the Solomon Amendment. In a phone interview with The Crimson this week, he stood by that forecast. “I don’t think it’s going to be that close of a vote,” Bashman said.

Meanwhile, some gay rights activists have speculated that Alito might be sympathetic to their cause, pointing to a report issued by a task force that Alito chaired as an undergraduate at Princeton in 1971. The report, revealed last week by the Boston Globe, recommended the decriminalization of sodomy.

The fight over military recruitment centers on law schools’ opposition to the “don’t ask, don’t tell” policy, but FAIR’s case primarily rests on First Amendment claims.

“As a formal legal matter, it’s not a gay rights case,” Fallon said.

Fallon, Field, and Minow—along with 37 fellow Harvard Law professors—signed a friend-of-the-court brief in September arguing that the school can bar military recruiters from campus without violating the Solomon Amendment. By requiring the Pentagon to sign a nondiscrimination pledge, the Law School held the military to the same standard as other recruiters and therefore adhered to Congress’ “equal access” requirement, according to the brief.

“I do not have any reason to believe that Judge Alito, once elevated to be Justice Alito, would be likely to accept a constitutional challenge to the Solomon Amendment,” Minow wrote in an e-mail. “The statutory interpretation argument offered in our amicus brief might be appealing to him...but if forced to bet, I’d bet against that prevailing, too,” she added.

—Staff writer Daniel J. Hemel can be reached at hemel@fas.harvard.edu