Judging Kagan

Supreme Court nominee's hearings involve opposition to DADT

The first Republican to question President Obama’s nominee for the Supreme Court, Solicitor General Elena Kagan, at this week’s Judiciary Committee confirmation hearings in the Senate spent more than half of his time on Tuesday, June 29, discussing the ”Don’t Ask, Don’t Tell” policy and Harvard Law School’s opposition to it.

Sen. Jeff Sessions (R-Ala.), the ranking Republican member of the committee, spent more than 22 minutes questioning Kagan – the dean at Harvard Law School for several years – about her opinion of and the law school’s reaction to DADT.

DADT, which bars gays and lesbians from serving openly in the military, conflicted with Harvard Law School’s nondiscrimination policy. This conflict was present at several schools across the country, so Congress passed the Solomon Amendment to require schools to give military recruiters equal access to that given to other employers.

In a series of back-and-forth policy changes involving the law school, the Department of Defense and higher-ups in the university administration, the law school – under Kagan’s leadership – went from allowing recruiters full access to the school’s career-services office, to utilizing the campus veterans group to provide access, and then going back to giving recruiters full access to the career-services office.

Sessions – as well as other Republicans – have taken aim at the period when the law school, and therefore Kagan, had limited the access.

Sessions first asked about Kagan’s views regarding DADT in a sharp set of exchanges that led to Kagan forcefully stating, ”Sen. Sessions, I have repeatedly said that I believe the ‘Don’t Ask, Don’t Tell’ policy is unwise and unjust. I believed it then, and I believe it now.”

Sessions then asked, ”Isn’t it a fact that you were acting in violation of Harvard’s agreement and the law when you reversed the policy [of allowing full access to the career-services office]?” Kagan responded that the school was ”never out of compliance with the law.” After substantial back-and-forth, Sessions nonetheless concluded that he was ”absolutely confident” Kagan ”mishandled” the matter.

The only other mentions of LGBT issues included a brief mention by Sen. Ben Cardin (D-Md.) in his opening statement that it is only ”mostly correct” that ”you have a right to fall in love and get married to whomever you wish” and a less LGBT-friendly mention about ”gay marriage” from Sen. Tom Coburn (R-Okla.).

Coburn, saying that he believes Kagan is a ”liberal,” noted, ”You believe in gender-mixed marriages, or gay marriage. You believe that states oughta recognize those throughout.” When Kagan began to explain that any policy preference for what she would do as a lawmaker ”is a very different” question than judging the matter, Coburn acknowledged, ”I’m not saying you aren’t going to have the capability to separate those positions.”

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