WASHINGTON — As a Harvard student government leader in the early 1970s, Merrick Garland, President Obama’s nominee for the Supreme Court, played a key role in efforts to hold a referendum that would have asked students if the university should end its campus ban on the Reserve Officers’ Training Corps.
The episode was an early test of Garland’s skills as a mediator on a highly emotional issue that roiled the university. More than 40 years later, it could give Senate Republicans opposing his nomination to the high court ammunition to say he did not sufficiently defend the US military in the face of left-wing activists.
Under pressure from a leftist group called the New American Movement, which had gathered 2,500 signatures, Garland asked a student-faculty steering committee to formally initiate debate on a campuswide referendum in October 1973 that asked whether the university should allow ROTC to return to campus, or keep its policy that effectively banned the group.
Garland sounded optimistic that the referendum would occur, predicting then that “chances are pretty good” that a larger student committee would sponsor the referendum, a key step in getting it before the full student body, according to an article at the time in the Harvard Crimson, the student-run paper, which chronicled the saga.
At a time of anti-Vietnam War protests and student activism, such a vote probably would have shown the student body overwhelmingly favored keeping the ban in place — placing intense pressure on the Harvard administration to continue the ban.
Indeed, as the threat of a referendum loomed, the administration signaled that no move was afoot to relax the ROTC ban, according to Crimson reports at the time. As a result, the larger student committee, including Garland, voted to scuttle the referendum effort — but on a provisional basis, as long as the administration did not propose lifting the ROTC ban.
Garland, now chief judge of the US Court of Appeals for the District of Columbia, declined to be interviewed for this article, as is customary for Supreme Court nominees.
A person familiar with the judge’s thinking said he never passed judgment on the underlying question of the referendum, only whether the question should be asked.
But any whiff of an antimilitary record will raise red flags for Republicans, who are refusing, with the ideological balance of the court at stake, to consider Obama’s pick at this point in the president’s term.
When Obama nominated Elena Kagan to serve as a justice, she answered questions about a policy she supported as the dean of Harvard Law School that denied military recruiters access to students through official school channels. The Harvard policy was a response to the prohibition against openly gay military service members. Kagan ultimately won her Supreme Court seat.
The 1973 controversy opens a small window into Garland’s activities on a hot-button issue while still an undergraduate at Harvard — and includes a twist that revealed how even then he found ways to blaze a path to center.
Days after the steering committee approved a larger debate on the referendum at his suggestion, Garland voted to prevent what would have probably been a divisive vote from occurring.
Garland therefore managed to bring up the idea of holding a referendum, which put pressure on the protest-weary Harvard administration, and then also participate in blocking it to avoid further inflaming a divisive campus fight.
The military training organization had been effectively banned from the campus in 1969, a year before Garland arrived at Harvard. “It was not the time to revisit that issue,” said David Johnson, who was at Harvard with Garland and was also a student representative who voted on the ROTC issue.
Johnson, in a phone interview with the Globe, said there was deep skepticism among student leaders about the New American Movement, a self-described organization of “revolutionaries” that was trying to push the referendum.
“I had the feeling at the time that groups like NAM were trying to use us for an agenda,” Johnson said. He called NAM “a very radical organization that didn’t have a great deal of standing or credibility” at Harvard at the time.
The ROTC issue reared up at Harvard in the summer before Garland’s senior year, in June 1973, when then-Harvard president Derek Bok gave a speech that many students believed would open the possibility of bringing the military training organization back on campus.
“I do not believe our record and our conscience can be fully clear until we manifest our willingness to entertain a ROTC program on terms compatible with our usual institutional standards,” Bok said.
NAM brought its 2,500 signatures to the executive board of the Committee on Housing and Undergraduate Life in October 1973, and asked to put the referendum item on the larger committee’s agenda.
Garland, who was at the time a Harvard senior representing his residence hall Quincy House, was the student who offered up the proreferendum agenda item, according to the Harvard Crimson. All six members — Garland and two other students, plus three faculty members voted yes, the newspaper paper reported.
Then, when the item came to a vote before the full Committee on Housing and Undergraduate Life, Garland joined all of the members voted against the referendum. Several students on the committee explained they had received assurances from the Harvard Administration that there were not plans to bring ROTC back on campus, and the referendum was therefore unnecessary.
Garland and another student on the committee, told the school newspaper that the referendum would be revisited if the administration took steps to bring ROTC back.
Garland, along with Johnson, “stressed that the refusal to hold a referendum is provisional,” according to the Crimson coverage. The paper reported that both Garland and Johnson agreed: “Discussion of the issue will revive instantly if the faculty starts to move” toward bringing the ROTC program back.
“A lot of us don’t want ROTC to ever come back here,” Johnson said, according to the paper. With no vote by Harvard students that year, the issue “fizzed out,” the Crimson wrote. Another 39 years would pass before Harvard lifted its ban, in 2012.