The top Republican on the Senate Judiciary Committee followed through today on plans to press Elena Kagan about her handling of military recruiting while dean of Harvard Law School.
Sen. Jeff Sessions (R-Ala.) accused Kagan of acting “without legal authority” when she ordered that military recruiters could not have the assistance of the school’s office of career services. Kagan repeatedly replied that the recruiters, even without the assistance, had full access to students and that recruiting actually increased after she issued the rule, which was based on a long-standing anti-discrimination policy.
The issue consumed almost all of Sessions’ time during the committee’s first round of questioning at Kagan’s confirmation hearing for the Supreme Court.
“I’m just a little taken aback by the tone of your remarks, because it’s unconnected to reality. I know what happened at Harvard,” Sessions said at the end of the long exchange. “I know you acted without legal authority to reverse Harvard’s policy and deny those people equal access to campus.”
At several points, Kagan emphasized that she always thought the law school was in compliance with the Solomon Amendment, which ties federal spending to whether a university grants to military recruiters the same access it gives other recruiters. Kagan and others at Harvard said the military was in violation of the school’s antidiscrimination policy because of its ban on gays and lesbians serving openly.
“We were never out of compliance with the law. No one ever suggested that we should be sanctioned in any way,” Kagan said.
Sessions pressed Kagan on one specific legal point: He noted that, though the U.S. Court of Appeals for the 3rd Circuit ruled the Solomon Amendment unconstitutional in 2004, the court stayed its ruling pending an appeal to the Supreme Court, so the law was always in effect. Kagan repeated that she thought the law school was within the law.
She did not back down on her position regarding gays in the military. “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,” Kagan said.