"Don't Ask, Don't Tell" at the Kagan Hearings

Posted by Chris Geidner
June 29, 2010 8:52 PM |

The second day of the confirmation hearings for Supreme Court nominee Solicitor General Elena Kagan began on Tuesday morning, June 29, with questions from Judiciary Committee Chairman Patrick Leahy (D-Vt.) and Ranking Republican Member Jeff Sessions (R-Ala.).

Sessions spent much of his time (video here) with Kagan on Tuesday morning -- more than 22 minutes -- discussing the issue of military recruiting at Harvard Law School, of which Kagan served as dean before joining the Obama administration in 2009. The military's "Don't Ask, Don't Tell" policy conflicted with the school's nondiscrimination policy.

The Solomon Amendment responded to this conflict, which happened at many law schools across the country, by requiring that military recruiters receive equal access to that given to other employers. Harvard Law School had traditionally allowed access to the school through the campus veterans group, but not through the career services office. It later, at the urging of the Department of Defense (DOD), allowed full access to the career services office. Then, after the Third Circuit Court of Appeals held that the Solomon Amendment was unconstitutional, Harvard reverted to the original policy of utilizing the veterans group. After DOD intervention, several months later Harvard went back to giving full access to the career services office. Later, the U.S. Supreme Court, in Rumsfeld v. FAIR, upheld the Solomon Amendment as constitutional.

Sessions began by discussing Kagan's opposition to the military policy, asking Kagan, "You personally opposed the "Don't Ask, Don't Tell" policy and felt strongly about it, did you not?"

Kagan: I do oppose the "Don't Ask, Don't Tell" policy --

Sessions: And you did then.

Kagan: I did then.

Sessions then descibed the email Kagan sent, as dean, to the student body, detailing her opposition to the policy.

Kagan: Senator 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. We were trying to do two things: We were trying to make sure that military recruiters had full and complete access to our students, and we also were trying to protect our own antidriscrimination policy and to protect the students to whom -- who the policy is supposed to protect, which in this case, were our gay and lesbian students. And we tried to do both of those things.

Sessions: Well, you couldn't do both, as it became clear as time went on.

Later, Sessions and Kagan addressed the specifics of Harvard's reaction to the Solomon Amendment.

Speaking of the period after the Third Circuit decision reversion to relying on the veterans group, Sessions began the exchange by asking: "Isn't it a fact that you were acting in violation of Harvard's agreement and the law when you reversed the policy?"

Kagan: We were never out of compliance with the law. Nobody ever suggested that Harvard should be sanctioned in any way. The only question was whether Harvard should -- continued to remain eligible for federal funding. After DOD told us that it wanted law schools to essentially ignore the Third Circuit decision ... We did change back, we did precisely what DOD asked us to do, and DOD never withheld funding from Harvard.

Sessions: Well, you did not do, you did not, Miss Kagan, you did not do what the DOD asked you to do. ... Put your legal hat on for a second. The Third Circuit oipinion never stayed the enforcement of the Solomon Amendment at Harvard, did it? Did that law remained [sic] in effect?

Kagan: Senator Sessions, the question was --

Sessions: No that's my question to you: Did the law remain in effect at all time at Harvard?

Kagan: The Solomon Amendmentremained in effect, but we had always thought that we complied with the Solomon Amendment, and for many, many years DOD agreed with us. ... When DOD came to us and said  [they planned to appeal the Third Circuit ruling] and we want law schools really to ignore what the Third Circuit said, DOD and we had some discussions, and we went back to what the DOD want us to do --

Sessions: Well, let's get more basic about it. The military -- You stopped complying. That season was lost before the military realized, frankly. ... By the time they realized that you had actually changed the policy, that recruiting season was over. ... I feel like you mishandled that, and I am absolutely confident that you did. ... What did the Supreme Court do with your brief? How did they vote on your brief?

Kagan: Senator Sessions, if I might you had suggested that the military lost a recruiting season, but in fact, the veterans' organization did a fabulous job ... and military recruiting went up that year, not down. ... We filed an amicus brief, not attacking the constitutionality of the Solomon Amendment, but instead saying that essentially the Harvard policy complied with the Solomon Amendment. The Supreme Court rejected it 9-0.

The video includes the exchanges above, which begin at 42:15 on the video and concludes at 1:04:30.

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