Being a very accomplished academic doesn’t necessarily translate into being an accomplished fighter pilot, or a nuclear physicist, nor does it translate necessarily into being a Supreme Court justice. So it seemed when Elena Kagan went up against Republican Senator Jeff Sessions during the 2nd day of her confirmation hearings.
Kagan faced tough questions early from Sessions, questions which seemed to frame the early part of hearings. If Sessions expected Kagan to admit to having made a mistake as Dean of the Harvard Law School, he didn’t get one. Kagan made known her dislike of the military’s “don’t ask, don’t tell” policy. The issue centered upon the question of Harvard’s policy under Kagan with regard to military recruitment on campus.
Harvard’s dual policy pre-dated Kagan’s stewardship at the Harvard Law School, but Kagan supported it, and amplified it in what Sessions called a “runaround” of Defense Department requests. The Harvard policy allowed recruitment through Harvard’s veteran organization but barred the military from access to Career Services. The policy was later reversed to allow the military access to Harvard Career Services, but Kagan took it upon herself to again bar military access to Harvard Career Services after a liberal 3rd circuit federal court ruled the Solomon Amendment was a violation of institutional rights. While the 3rd Circuit federal court impacted some institutions within its jurisdiction, it did not apply in Harvard’s 1st District jurisdiction.
The Solomon Amendment was passed by Congress, and withholds federal funds from institutions which bar the military from campus activities such as recruitment. Kagan defended her policy decisions on the basis of her opposition to “don’t ask, don’t tell,” but Sessions pointed out that the nominee went beyond the law in attempting to circumvent Solomon.
Kagan continued to insist that her policies on behalf of demonstrating gay and non-gay students justified her application a policy that ran contrary to Solomon. Sessions countered that Solomon law remained in effect as the case went to the Supreme Court.
The Supreme Court upheld Solomon, and Kagan huddled with Harvard University President Larry Summers to restore military access to Harvard Career Services. The Kagan-Summers decisions prevented the loss to Harvard of $300 million dollars in taxpayer funding.
Meanwhile, the confirmation committee has been provided with thousands of documents and Kagan emails, many directed against Defense Department military recruitment efforts at Harvard. Sessions pointed out that these objections should have been directed against Congress and the law it passed (Solomon) rather than at the military. Sessions pointed out that, as a consequence of Kagan’s policies at Harvard, Iraq and Afghan war veterans had complained of hostility and discrimination on the Harvard campus. Sessions said he was “taken back” by the “tone of your (Kagan’s) remarks” in defense of her actions regarding military recruitment at Harvard.
“Your emails refer to military policy but it was a law effectuated by Congress,” said Senator Sessions.
Kagan pointed out that her father served in the military and that she was proud of Harvard’s veterans and the contributions they had made at Harvard. Her support of a dual policy designed to maintain federal funding and satisfy opponents of “don’t ask, don’t tell” was not intended to bar the military from recruiting, Kagan told the committee, but only to bar it from Career Services.