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Document undercuts key GOP Senator's assertion about Kagan, Dems say

Senator Jeff Sessions got into a pretty spirited jousting match with Elena Kagan today over one of the key GOP attack lines on Kagan: The claim that she's "anti-military," based on her efforts to prevent the military from recruiting on campus when she was dean of Harvard law.

But Dems argue that a Department of Defense document that hasn't come to light undercuts an assertion Sessions made that's at the core of this particular assault.

The gist of the dispute is that in 2004 Kagan backed a lawsuit charging DOD with violating the First Amendment because it was forcing law schools to allow military recruiters on campus. Kagan protested the recruiting because of the military's "Don't Ask Don't Tell" policy.

Later that year, a Federal appeals court in the Third Circuit ruled in favor of Kagan's position, and she reinstated the school's ban on military recruiters. Kagan later relented under threat of massive federal sanctions, and the Supreme Court overturned the ruling in 2006.

Today's dispute centered on the appeals court law that supported Kagan's position. Senator Sessions blasted Kagan for applying the law on campus, arguing that it wasn't meant to apply to Harvard. "She suggested she was following the Third Circuit Law when the Third Circuit Law never applied at Harvard," Sessions said.

But a new document suggests that even the Bush Department of Defense thought it could apply at Harvard. That's because the ruling was so ambiguous that DOD felt it needed a closer look.

"Although Harvard Law School is not located within the Third Circuit's geographic jurisdiction," it says on page 51 of the document, an internal DOD legal memo, "the Department of Justice and DoD are currently evaluating" whether it applies.

Republicans say this is meaningless, arguing that the Third Circuit ruling was suspended before it ever took effect, making it irrelevant. They say the important point is that Kagan enforced the ban. But Dems point out that it's hard to fault Kagan for applying the law on campus, since even the DOD thought it might appropriately apply.

Either way, expect this document to be central to Dem efforts to push back on this attack as the hearings continue.

UPDATE, 7:42 p.m.: A GOP aide responds:

"Far from providing recruiters with 'full and good access' she actively and deliberately blocked the military's access to campus resources, obstructing military recruiting during a time of war and in defiance of the law. The Pentagon Documents reveal that 'the army was stonewalled,' and that the policy Dean Kagan adopted was 'tantamount to chaining and locking the front door of the law school.'"

By Greg Sargent  |  June 29, 2010; 5:07 PM ET
Categories:  Senate Republicans , Supreme Court  
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Comments

via Bench Memos:

"The Third Circuit’s ruling was stayed pending Supreme Court review, preventing it from interfering with the operation of the Solomon Amendment. She knew that Harvard’s previous separate and unequal treatment of the military recruiters was deemed non-compliant by the DoD, which led her predecessor to reverse course and permit equal access in order to avoid loss of federal funds. Since there was no change in the law effectuated by the Third Circuit’s stayed decision, there was no basis to return to a position she knew to be non-compliant.

"...There was no duty for Dean Kagan to violate the law. She was still bound by the Solomon Amendment, but she used an inapplicable decision as an excuse to push her policy preferences."

http://www.nationalreview.com/bench-memos/230455/no-legal-basis-separate-and-unequal/robert-alt

Posted by: sbj3 | June 29, 2010 6:25 PM | Report abuse

Senator Sessions would do well to return to the baking tree and start turning out those delicious cookies a and cakes. When the truth comes out about this Harvard thing, he will have completely humilitated himself and embarrassed the Congress of the United States.

Posted by: johnhenson499 | June 29, 2010 8:31 PM | Report abuse

Senator Sessions would do well to return to the baking tree and start turning out those delicious cookies and cakes. When the truth comes out about this Harvard thing, he will have completely humiliated himself and embarrassed the Congress of the United States.

Posted by: johnhenson499 | June 29, 2010 8:32 PM | Report abuse

Jefferson Beauregard Sessions is a complete moron. Another blackmark on the Reagan Presidency for nominating him as a Federal Judge and kudos to those that stopped him.

As a Senator, he was one of only nine who voted against an amendment to a House bill that prohibited torture of individuals in the custody or under the physical control of the United States Government. He's pro-torture and he then had the nerve to describe the 100,000 people who protested the bogus war in Iraq as not representing American ideals!

This guy is a bitter throwback to KKK supporters in the Senate. Shame on Alabama for sending him to Washington

Posted by: thebobbob | June 29, 2010 11:36 PM | Report abuse

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