Kagan: DADT is "Unwise and Unjust"

U.S. Supreme Court nominee Elena Kagan took nearly nine hours of questions on Tuesday during her first round of inquiries, making a deliberate effort to remain neutral on many topics with two notable exceptions: "don't ask, don't tell" and whether the Supreme Court should allow cameras in its chambers.

"I have repeatedly said that the 'don't ask, don't tell' policy is unwise and unjust -- I believed it then and I believe it now," said Kagan, acting U.S. solicitor general, in response to a question from Alabama senator Jeff Sessions, the ranking Republican member on the Senate Judiciary Committee.

In an exchange with Democratic senator Herb Kohl of Wisconsin, Kagan willingly highlighted her departure from the opinion of several justices currently sitting on the court.

"I recognize that some members of the court have a different view," she said, "but I have said that I think it would be a terrific thing to have cameras in the courtroom. When you see what happens there, it's an inspiring sight."

In January the Supreme Court ruled against allowing cameras in a federal courtroom during a case brought by Ted Olson and David Boies challenging the constitutionality of Proposition 8, which denied same-sex couples the right to marry in California.

But the exchange between Sessions and Kagan about her management of the military recruitment policy on the Harvard Law School campus provided one of the more combative moments in Tuesday's hearings.

Democratic senator Patrick Leahy of Vermont, chair of the Judiciary Committee, tried to temper Sessions' line of questioning in advance by noting that recruitment never suffered during Kagan's tenure as dean of the law school. He further gave Kagan an opportunity to express her support for those who serve in the armed forces.

Kagan revisited an invitation she received to speak about the Constitution at West Point one year, calling it "really the greatest honor I think I've ever had." She added that she tried to be clear with students who were veterans or participated in the school's ROTC program about "how much I respected their service, how much I thought they were doing the greatest thing that anybody could do for their country."

Leahy also entered into the record a Washington Post op-ed written by one of Kagan's former students, Capt. Robert Merrill. "If Elena Kagan is 'anti-military,' she certainly didn't show it. She treated the veterans at Harvard like VIPs, and she was a fervent advocate of our veterans association," Merrill wrote. "She was decidedly against 'don't ask, don't tell,' but that never affected her treatment of those who had served."

After Leahy finished excerpting the piece, Kagan said she had been deeply touched by Merrill's piece when she first read it.

"I've only cried once during this process," she noted, "when I woke up one morning and I read that op-ed from Captain Merrill -- it meant an enormous amount to me."

But Sessions was neither soothed nor dissuaded and spent the bulk of his time reprising a handful of public statements Kagan made as dean in opposing the military's gay ban and grilling her about how she handled recruitment on campus.

Kagan stated several times that she was trying to balance two competing interests: compliance with the Solomon Amendment, a 1996 law that empowers the secretary of Defense to deny federal funding to colleges and universities that prohibit or prevent ROTC or military recruitment on campus; and an adherence to the school's antidiscrimination policy, which said that no employer could use the office of career services if that employer would not sign a nondiscrimination pledge. The military could not sign the pledge based on its discriminatory DADT policy.

Although military recruiters were not allowed to use the law school's office of career services during part of Kagan's deanship, they were allowed to recruit on campus through the office of veteran services. But much of the disagreement between Kagan and Sessions centered on the events following a 2004 decision by the U.S. court of appeals for the third circuit that found the Solomon Amendment to be unconstitutional -- a ruling that was subsequently overturned by a unanimous Supreme Court decision in 2006.

Sessions alleged that Kagan had purposely continued to block recruiter access to the school's office of career services even after the Department of Defense explicitly requested full access and said it would appeal the 2004 decision.

But Kagan contended that she believed the school's policy was "in compliance" with the Solomon Amendment and "for many, many years, the Department of Defense had agreed with us."

"When DOD came to us and said it thought that that was insufficient," Kagan said, "we went through a discussion over a couple of months and we made the decision to do exactly what DOD wanted."

But Sessions shot back that the law school complied only after the Defense Department threatened to pull "some $300 million [in federal funding] if Dean Kagan's policy was not corrected."

Kagan repeated her assertion that they granted military recruiters full access once the Defense Department asked for it.

With the remainder of his time, Sessions retorted, "I know what happened at Harvard. I know you were an outspoken leader against the military policy. I know you acted without legal authority to reverse Harvard's policy and deny those -- the military equal access to campus until you were threatened by the United States government of loss of federal funds. This is what happened!"

Several senators tried in vain to elicit answers from Kagan regarding her personal legal motivations, passions, and judicial leanings, but she consistently and evenly dodged the inquiries, often employing humor as a buffer.

"In what direction would you move the court?" asked Senator Kohl.

Kagan said blandly she would decide each case "fairly and objectively" and declined to say she would move the court in any particular direction.

"It's a fair question," Kohl probed further.

"Well, it might be a fair question," she responded without elaboration, eliciting a round of laughter from the hearing room.