SCOTUS Nominee Won’t Ask, Won’t Tell

On day two of the Elena Kagan confirmation hearings, ranking Senate Judiciary Subcommittee Member Jeff Sessions, R, Ala., remarked that he was “taken aback” by the tone of the Supreme Court nominee’s account of her decision to deny military recruiters access to Harvard Law School’s Office of Career Services at times during her tenure as Dean, because he thought the tone of her testimony was “unconnected to reality.”

“I know what happened at Harvard. I know you were an outspoken leader against the military policy. …” argued Sen. Sessions.

Kagan had earlier told Sen. Sessions that she was “not quite sure how I would characterize my politics, but one thing I do know is that my politics would be, must be, have to be, completely separate from my judging and I agree with you, to the extent that you’re saying, look, judging is about considering a case that comes before you… and then considering how the law applies to their case.”

“How the law applies to their case, not how your own personal views, not how your own political views might suggest, you know, anything about the case but what the law says, whether it’s the constitution or whether it’s a statute,” said Kagan.

She maintained at the hearing that she had repeatedly said she believed that the “…Don’t Ask Don’t Tell policy is unwise and unjust.”

“I believed it then and I believe it now, and we were trying to do two things [at Harvard Law],” she said. “We were trying to make sure that military recruiters had full and complete access to our students, but we were also trying to protect our own anti-discrimination policy and to protect the students whom it is…whom…the policy is supposed to protect, which, in this case were our gay and lesbian students,” said Kagan. “And we tried to do both of those things.”

Readers would be hard pressed to locate a public appearance by Kagan designed to honor the military among the comprehensive compendium of her scholarship assembled by the Senate Judiciary Committee.

However, as this correspondent outlined earlier, the former Harvard Law School Dean was frequent and vocal in her support of a gay rights student group at the school, HLS Lambda, as well as in her opposition to Don’t Ask Don’t Tell (DADT).

During her time as the law school Dean, Kagan

• invited the law school community via email to an HLS LAMBDA conference on “the military’s recruitment policies and the Solomon amendment,” and gave the welcoming remarks there,
• signed onto (pdf) an amicus, or friend of the court, brief regarding Fair v. Rumsfeld in her capacity as professor, not Dean,
• attended and is quoted as speaking at a “LAMBDA-sponsored rally” against military recruiting on campus,
• informed HLS Lambda members of a change in the school’s policy toward military recruiting before she informed the overall community, according to a student reporter,
• appointed a Solomon “task force” which included HLS LAMBDA members, and
• issued a series of emails condemning the DADT policy as discriminatory against homosexuals.

In the last case, Kagan did express her respect for the “honorable” military via email. She writes in 2008,

“I believe discrimination against gays and lesbians seeking to enter military service is wrong—both unwise and unjust. And this wrong harms the fabric of our own community by denying an opportunity to some of our students that other of our students have. The military is a noble profession, which provides extraordinary service to each of us every day. But this simple fact heightens, rather than excuses, the inequity in this case. … And I look forward to the time when all our students can pursue any career path they desire, including the path—as deeply honorable as any I can imagine—of devoting their professional lives to the defense of this country” (emphasis added).

However, earlier iterations show more hostility.  In a 2003 email Kagan writes that granting the military the ability to recruit on campus “causes me deep distress, as I know it does a great many others.” “I abhor the military’s discriminatory recruitment policy,” Kagan writes (emphasis added).

In September 2005, she writes,

“I believe the military’s discriminatory employment policy is deeply wrong—both unwise and unjust. And this wrong tears at the fabric of our own community by denying an opportunity to some of our students that other of our students have” (emphasis added).

In 2004, Kagan wrote in an email to the community that “I understand that the military’s presence on campus feels alienating to many here, especially our LGBT students. …”

At the very end of the email she invites “all of you to get in touch with me if you any questions or comments on this issue.”

“In addition, Ellen Cosgrove, our Dean of Students, serves as a resource for students who have interests or issues relating to sexual orientation,” she ends the email.

At the hearing Kagan said that “Senator Sessions, you’re of course right that the Solomon Amendment is law passed by Congress and we never suggested that any members of the military, you know, should be criticized in any way for this.”

“We—you know, uh, I tried to make clear in everything I did how much I honored everybody who was associated with the military on the Harvard Law School campus,” she maintained.

Bethany Stotts is a staff writer at Accuracy in Academia.