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President Barack Obama’s nominee for the U.S. Supreme Court, Solicitor General Elena Kagan, finished testifying before the Senate Judiciary Committee on the evening of June 30, after two days of questioning from the committee and with her confirmation looking likely, according even to Republican members of the committee who are opposed to her nomination.
Following the opening statements on June 28, Sen. Jeff Sessions (R-Ala.) focused both rounds of questions on LGBT-related issues. The first, on June 29, related to Kagan’s tenure as dean of Harvard Law School and her handling of military recruitment on campus. Because of law schools’ nondiscrimination policies, many law schools objected to ”Don’t Ask, Don’t Tell” and barred military recruiters on campus, leading Congress to pass the Solomon Amendment requiring schools to give equal access to such recruiters.
On the second go-around of senators’ questions to Kagan, Sessions again turned to DADT. On June 30, Sessions focused on two particular challenges to the policy: one from the First Circuit, Cook v. Gates, and another in the Ninth Circuit, Witt v. Dep’t of the Air Force.
In the First Circuit case, one of the 12 plaintiffs, James Pietrangelo, sought U.S. Supreme Court review of the decision, which upheld DADT as constitutional. The other 11 plaintiffs — who had, along with Pietrangelo, been represented by Servicemembers Legal Defense Network (SLDN) — did not seek high-court review.
In the Ninth Circuit case, the court determined that an individual inquiry was required before any servicemember could be separated under DADT.
Sessions on June 30 asked Kagan, who was responsible for determining whether the government supported the appeal of these matters to the U.S. Supreme Court, why she decided to urge the Supreme Court not to take Pietrangelo’s case and decided not to seek an appeal of the Witt decision.
Specifically, Sessions asked Kagan why she made that decision after telling the Senate Judiciary Committee when being confirmed as solicitor general that, as Sessions put it, she was “fully committed to vigorously defending that law.”
“I’d like to hear you state with as much specificity as you can, why you felt it was necessary not to appeal either one of these cases,” Sessions pressed.
Kagan responded that she agreed with Sessions that her role as solicitor general is “to vigorously defend all statutes, including ‘Don’t Ask, Don’t Tell.”’
Of the Pietrangelo appeal, Kagan said, “He was challenging a decision that the government very much approved of.”
“We told the court not to take the case because the statute was constitutional,” she said of the Supreme Court’s ability to pick and choose the cases it will hear. “The argument was made vigorously [in the Department of Justice’s brief] that the statute is constitutional.”
The Supreme Court took Kagan’s advice and chose not to review Pietrangelo’s case challenging the constitutional validity of the DADT policy.
In the Ninth Circuit case, Kagan told the committee, “The Witt matter is interlocutory in nature.” As she explained, this means the case is “in the middle” because the Ninth Circuit’s decision remanded the case, or sent it back to the trial court for further development of the case.
The decision not to appeal the Ninth Circuit’s decision requiring individual inquiry prior to any servicemember being discharged under DADT, according to Kagan, was made after consultation with the Department of Defense. Of the Witt decision, she said to Sessions, “I agree with you that the Ninth Circuit [opinion] undercuts” the DADT policy.
Kagan said, however, that allowing the case to go back to the trial court would give the government the opportunity to show “exactly what the Ninth Circuit was demanding that the government do … [which] was, in the government’s view, and particularly in DOD’s view, a kinda strange thing.”
The opinion required that a DADT discharge case show that “a particular separation caused the military harm, rather than to view it in general across the statute. … The remand would enable us to show what this inquiry would look like … [and] how it was this inquiry really would disrupt military operations.”
Kagan said that because of this the decision was made that the “better course actually is to wait on it and accept the court’s remand. … In the event we didn’t win the case on remand [or on appeal in the Ninth Circuit], then presumably [we] would” take the case to the Supreme Court and ask the court to review the matter.
Kagan added that the Department of Justice had explained this decision, in writing, to the Senate Judiciary Committee in a letter that she said the department “writes whenever there’s a moment in which it does not contest a decision that is inconsistent with a federal statute.”
The letter explained the reasoning and noted the government would still be able to take the case to the Supreme Court at a later date.
Sessions was skeptical of Kagan’s illustration of how, as solicitor general, she defended the government’s position of supporting DADT, while remaining personally opposed.
”I appreciate that position. I will look at it and review it,” he said. ”It does appear, however, that your position was in harmony with the ACLU,” which is bringing the Witt challenge.
Later in the day, Sen. Chuck Grassley (R-Iowa) asked Kagan about marriage, saying, ”Do you believe that marriage is a question reserved for the states to decide?” When Kagan responded that “[t]here is, of course, a case coming down the road” and added that she did not want to “prejudge any case that might come before me,” Grassley asked about Baker v. Nelson.
Baker is a 1972 case in which the Supreme Court heard a state-law challenge to marriage laws and held the same-sex marriage claim raised in the case did not present a ”substantial federal question.”
At that time, the court disposed of many cases this way, without full briefing or the benefit of oral argument, but the case has never been directly challenged or overturned so its current status is in question. Grassley asked, ”Do you agree with that decision? … Is it settled law?”
Saying its posture means it did ”not [have] the weight of a ‘normal’ decision,” Kagan went on to say, ”the view that most people hold, I think, is that it is entitled to some precedential weight but not the weight afforded to a fully argued, fully briefed decision.”
Grassley, as with Sessions earlier, with not satisfied, saying, ”I’m disappointed you didn’t use the word ‘settled law.”’
On July 1, witnesses in support of and in opposition to Kagan testified before the committee, with several of the opposition witnesses brought in to discuss Kagan’s military-recruiting decisions at Harvard, as well as her potential vote on a case challenging same-sex marriage prohibitions. Kagan did not attend the session that day and told committee Chairman Patrick Leahy (D-Vt.) that she likely would not even watch the witness testimony.
The likely outcome, at that point, appeared clear to most observers. Even Sen. Orrin Hatch (R-Utah), who has said he will vote against Kagan, told The Salt Lake Tribune on June 28, ”She’d have to really blow up and do something really bad not to get through.” His office later told The Huffington Post that he would not support a filibuster effort to keep her nomination from coming to a vote.
Leahy has said that he intends for the committee to vote on her nomination on July 13.