The Senate Judiciary Committee’s top Republican spent much of his allotted 30 minutes for questioning Elena Kagan on Tuesday morning by painting her as antimilitary. Sen. Jeff Sessions suggested President Obama’s Supreme Court nominee had created a hostile environment for the military by disfavoring military recruiters when she was dean of Harvard Law School earlier this decade.
But Kagan gave no ground. She politely contradicted Sessions even as he bluntly challenged her responses. Kagan repeatedly stressed that she had always revered the military and those who serve in it and had made this clear as dean by regularly honoring students who had served or planned to serve in the military.
She also emphasized that she had violated no law and had insured military recruiters ample access to Harvard law students and to the campus—even as she limited the law school’s assistance to military recruiters. This, she said, was in keeping with a longstanding law-school policy disfavoring any employer that discriminated against gay people.
Kagan’s testimony was truthful and precise. But whether the Sessions attacks resonated with an American public that has high respect for men and women in uniform remains to be seen.
In earlier questioning, Sen. Patrick Leahy, the committee’s Democratic chairman, used softball questions to elicit testimony by Kagan that recent decisions recognizing a constitutional right to own guns for self-defense are “settled law.” This was significant because the court’s three more-liberal members and Justice John Paul Stevens, who retired effective Monday, implied in dissenting opinions in Monday’s big gun-rights decision that they would like to overturn it and a 2008 decision that had set the stage for it. Kagan’s testimony sounded fairly close to a commitment not to vote to overturn those decisions.
Leahy sounded pleased. Though liberal on most issues, he supports gun rights, which are popular with his Vermont constituents.
As to the military, Kagan testified that its recruiters “had access to Harvard students every single day I was dean” and that she had always made clear that military service was “the most import and honorable way any person can serve his or her country.” Leahy seconded her by reading into the record a letter praising Kagan’s homage to the military from a former Harvard student who had served.
Kagan said that the restrictions that she had placed for a time on military access through the law school’s Office of Career Services were designed to honor the school’s antidiscrimination policy and protect gay and lesbian students while at the same time working with a veterans group to accommodate students who wanted to meet with military recruiters.
But Sessions accused her of violating a law called the Solomon Amendment during the period in 2004 and 2005 when she denied the U.S. military access to the career-services office that the law school provided to other employers. Kagan stressed that the Solomon Amendment did not require the school to provide military recruiters full access—or, indeed, any access at all—but rather called for the government to deny federal funding to any educational institution that did not meet certain conditions. She also argued that she had thought the law school had complied with the conditions specified by the Solomon Amendment.
Sessions pointed out that the Supreme Court had unanimously rejected the law school’s interpretation in a 2006 decision. But Kagan pointed out that nothing in the court’s decision suggested that noncompliance with the Solomon Amendment would have any consequence other than denial of federal funds.
Kagan also noted that when the military had threatened to take concrete steps to cut off Harvard University’s more than $300 million in federal funds, she and Harvard had done exactly as the military requested and given recruiters access.
Confronted by Sessions with a statement she had made as dean that the military’s discrimination against gays was a “profound moral wrong,” Kagan responded: “I believed it was unjust. I believed it then. I believe it now.”