Senate Republicans and Solicitor General Elena Kagan are facing off over whether her objection to the military's ban on openly gay soldiers and her decision to restrict recruiters at Harvard Law School disqualify her from serving on the Supreme Court.
Just minutes into Kagan's confirmation hearing Monday, Alabama Sen. Jeff Sessions charged she had "kicked the military out of the recruiting office" at Harvard, "in violation of federal law."
"Her actions punished the military and demeaned our soldiers as they were courageously fighting two wars overseas," Sessions said. "I can't take this issue lightly."
The recruitment matter is one of the few points on her resume that Republicans have been able to use against her. Her policies and writings on the issue call up broader themes of patriotism and equal rights, both emotional topics at a time when the nation is at war and both parties are gearing up for the midterm elections. In some measure, the November balloting will be a referendum on her patron, President Barack Obama.
At the very heart of Kagan's decision at Harvard is an even more sensitive topic — her opposition to the military's "don't ask, don't tell" policy on openly gay soldiers.
Republicans contend that Harvard was the wrong venue for Kagan's "personal political grievance" and that briefly restricting the recruiters on campus broke the law. They conclude with questions about whether Kagan is anti-military and unfit to make impartial decisions on the high court.
Republicans have a tough case to make.
Judging by her own words, Kagan held the military in high regard and stories abound of her praising and thanking veterans on campus. She did call the policy toward gays "repugnant," but when court rulings went back and forth on the matter, she complied.
In a widely circulated 2003 memo, Kagan blasted "don't ask, don't tell" as "a moral injustice of the first order." She was explaining to students and faculty that under a federal law known as the Solomon Amendment, the university risked jeopardizing hundreds of millions of federal dollars unless the school allowed military recruiters on campus.
The following year, a federal appeals court struck down the Solomon Amendment as unconstitutional and Kagan re-imposed a restriction on recruiters.
But she wasn't the first at Harvard to take a stand against a military policy. The Solomon Amendment was passed by Congress two decades after Harvard first banned military recruiters over the issue of discrimination against gays. Afterward, military recruiters were still allowed to recruit students on campus through the Harvard Law School Veterans Association, a student group.
After the Sept. 11, 2001, terrorist attacks, Republicans in Congress said military recruiters should not be hampered in wartime. The Bush administration threatened to cut off funding, and in 2002 Harvard Law School relented and allowed military recruiters to use a campus office.
Kagan continued that policy when she became dean in 2003. Meanwhile, three dozen law schools challenged the Solomon Amendment in federal court. Harvard declined to join the lawsuit but filed a brief siding with the schools.
In 2004, the 3rd U.S. Circuit Court of Appeals found the Solomon Amendment unconstitutional, and Kagan banned military recruiters from using the campus career office, allowing them to work instead through the veterans group.
When Republicans in Congress renewed the threat of a funding cutoff, she relented and allowed the recruiters to use the career placement office. In 2006, the Supreme Court unanimously reversed the lower court's ruling and found it constitutional to deny funding to schools that restrict military recruiting.
Republicans note that the 3rd Circuit, seated in Philadelphia, had no jurisdiction over Harvard's policies and contend Kagan was bound by the Solomon Amendment throughout her time at Harvard.
"Her tenure . . . was marred, in my view, by her decision to punish the military and would-be recruits for a policy — 'don't ask, don't tell' and the Solomon Amendment — that was enacted by members of Congress and signed into law by President Clinton," said Senate Republican Whip Jon Kyl of Arizona.
Sessions noted that Kagan apparently never brought up her problems with "don't ask, don't tell" while she worked in the Clinton administration.
"Instead, she went to Harvard and stood in the way of devoted, hardworking military recruiters, punishing them to air her personal political grievance in which they had no part," Sessions' office said in a statement.
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