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Sessions slugsfest over military recruitment at Harvard

I haven't seen an exchange as intense as the one between Elena Kagan and Sen. Jeff Sessions (R-Ala.) since the Thomas confirmation hearings. The senator punched hard, very hard on Kagan's handling of military recruitment in the mid-2000's when she was dean of Harvard Law School. Kagan jabbed back but wasn't able to deflect all of his blows. Sessions had a point -- although I think he's ultimately wrong about the bigger question.

Kagan was dean of the Harvard Law School when she was caught in a three-way tug-of-war between the Solomon Amendment, the military's "don't ask, don't tell" and the law school's broad nondiscrimination policy. The Solomon Amendment required colleges and universities to give military recruiters equal access to the student body; schools that did not comply could face severe federal funding cuts. Yet the military's "don't ask, don't tell" policy banned gays and lesbians from serving openly, which meant it could not comply with the law school's policy, which, among other things, banned discrimination on the basis of sexual orientation. As a compromise, Kagan and the law school allowed military recruiters access to students through the school's veteran's group but did not give them privileges with the Office of Career Services. Kagan and Harvard Law also joined a constitutional challenge to the Solomon Amendment and argued that the school's accommodations, while not exactly equal, nonetheless complied with the spirit of the Solomon Amendment and should be allowed. An appeals court in Philadelphia sided with the law schools -- a fact that Kagan used to justify limitations on military recruitment.

Here's where I think Sessions is right: Kagan, a fierce critic of the "don't ask, don't tell" policy, clearly was looking for ways around the Solomon Amendment. And she and the school tried to justify its run-around through an opinion from a Pennsylvania court that was not binding on the Massachusetts school. Kagan's efforts were slapped down resoundingly when the Supreme Court took up the case; the justices ruled 9-0 against the law school.

But here's where I think Sessions is wrong: Kagan, as head of the law school, was a policymaker for the institution. She had an obligation to apply federal law and to abide by the school's long-standing policies. And providing an adequate accommodation could have allowed compliance with both. In other words, I think it was a legitimate attempt to find a "third way" that would respect both imperatives.

What should not be lost in all of this is the 9-0 ruling. Yes, it was an unequivocal loss for Kagan, but it also shows that the "liberals" on the court at that time (Stevens, Ginsburg, Breyer and Souter) were apparently able to cast aside their presumed political preferences to join conservatives in applying the law. I'm pretty confident that Kagan can do this, too.

By Eva Rodriguez  | June 29, 2010; 10:08 AM ET
Categories:  Rodriguez  | Tags:  Eva Rodriguez  
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Next: MC Kagan in the house: The Elena Kagan confirmation rap

Comments

Maybe there is one Republican with a backbone. We will see if he sticks to his guns. There is no way this godless nominee should be confirmed to the Supreme Court.

Posted by: sonofliberty09 | June 29, 2010 11:36 AM | Report abuse

Being "godless" is exactly what makes her a PERFECT nominee. She's deciding cases based on the Constitution, not the Bible or the Koran. Or is that a concept too complicated for you narrow-minded religious rightists to grasp?

Posted by: 7900rmc | June 29, 2010 11:46 AM | Report abuse

So again, let's examine Sessions with this VERY committee.. Oh, that's right, he got REJECT as a judge candidate because he too bigoted !! He's a racist from Alabamie.. He's acting like one again only this time he's got the pee-party AND the Klan watching his back...

This hearing, with Sessions asking the questions needs to be turned right around on ALL republican/pee-party slime to find out if they'll only govern their way or is our CONSTITUTIONAL republic still standing??

Posted by: rbaldwin2 | June 29, 2010 11:49 AM | Report abuse

Godless? I suppose you have no problems with "activism"... as long as it is advocated by your religion.

Posted by: Rickster623 | June 29, 2010 11:50 AM | Report abuse

Godless? My my my. How come we have so many idiots with access to the web. I don't want any nominee, regardless of which president nominates them, to come to the court with God as a compass. We have a constitution for a reason, and it explicitly does not mention GOD.
I guess to the idiot who calls her GODLESS, IRAN would be a better country to move to since they are governed entirely by religious edicts given down by the Ayatollah!!!

In the famous words of jack Nicholson,

"Sell stupid somewhere else, we are all stocked up here."

Posted by: khodjo | June 29, 2010 11:56 AM | Report abuse

good one 7900rmc. teabaggers believe the country should be governed based on the bible and not the constitution. of course, they don't pay attention to the parts about serving money, and invading countries that are minding their own business and bombing them into rubble and killing and maiming hundreds of thousands of innocents. yessiree, a teabagger don't have a problem with killing humans, but abort a fetus or harm a stem cell, and they're ready to kill - humans. doesn't make a lot of sense to me, but I guess I'm just not as "smart" as people with that perverted mentality.

Posted by: red2million | June 29, 2010 11:59 AM | Report abuse

Rodriquez is completely correct in her analysis. Kagan was wrong if she were truly believing that the law was on her side in the military recruitment matter, but her critics have not shown that it would have mattered if she had been on the bench. Not that she wouldn't have at first thought the same thing, but that she would have voted in that direction.

I willing to bet that some of the other justices too thought as did she, but in deliberations those justices understood the correctness of the decision or they did so after their clerks researched the issue. That is how the job is run. There are no supreme court cases decided on the spur of the moment (okay fine, Bush v. Gore is the exception and what a load of nonsense that was).

Posted by: familynet | June 29, 2010 12:06 PM | Report abuse

So again, let's examine Sessions history with this VERY committee.. Oh, that's right, he got REJECTED as a judge candidate because he too bigoted !! He's a racist from Alabamie.. He's acting like one again only this time he's got the pee-party AND the Klan watching his back...

This hearing, with Sessions asking the questions needs to be turned right around on ALL republican/pee-party slime to find out if they'll only govern their way or is our CONSTITUTIONAL republic still standing??

Posted by: rbaldwin2 | June 29, 2010 12:08 PM | Report abuse

As far as Sessions and the other Republicans go; it really doesn't matter who is in the chair as nominee. If the nominee is from a Democratic President, it will be viciously and vigorously opposed.

Posted by: smileyzjohn | June 29, 2010 12:08 PM | Report abuse

Sessions doesn't have backbone,he is a know nothing bonehead who is showing how ignorant he is as usual

Posted by: LDTRPT25 | June 29, 2010 12:10 PM | Report abuse

If nothing else, Sessions is clearly demonstrating what a prick he is during these hearings. His nastiness says more about him than Kagan.

Posted by: lddoyle2002 | June 29, 2010 12:18 PM | Report abuse

Apples and oranges. She was NOT a Supreme at Harvard- her job was entirely different- just as a prosecuting attorney's job is different from a defense attorney. If you used Sessions yardstick, Kagan should have been upholding Constitutional amendments in grade school. His Blustering Photo Op, again, when thought about, is useless and absurd, respective of where you fall on Don't Ask, Don't Tell. Just think it through.

Posted by: poppysue85 | June 29, 2010 12:18 PM | Report abuse

The point is, she willfully sought to evade complying with the law, then acted in contempt of the 3rd Court of Appeals, all to punish the military for following a policy imposed on them by the Congress and her erstwhile boss, Bill Clinton.
That she now feels she warrants a position in an institution she held in such contempt is disturbing.

Posted by: OttoDog | June 29, 2010 12:22 PM | Report abuse

"If nothing else, Sessions is clearly demonstrating what a prick he is during these hearings. His nastiness says more about him than Kagan." Posted by: ddoyle2002
=====================
It's abundantly clear that Kagan has had a lifelong disdain for pricks of any sort.

Posted by: OttoDog | June 29, 2010 12:25 PM | Report abuse

thank god for senator sessions. without him, we would not have a shining example of how stupider stupid can get.

Posted by: glenknowles | June 29, 2010 12:28 PM | Report abuse

I, for one, am so excited to have our first openly lesbian Justice! Won't it be great? Her wealth of experience from a gay perspective will help her decide cases in ways that the law alone can't.

She will singlehandedly swing the court to the left. Soon we'll have FREEDOM! We'll take the guns away from the nutjobs and we'll redistribute the wealth and property from greedy Republicans to the poor deserving Democrats.

Posted by: diesel_skins_ | June 29, 2010 12:32 PM | Report abuse

Why are conservatives so eager to lie in order to push an agenda? You'd think the "truth shall set us free" would be an ethic we could all embrace. Kagan is not a lesbian, unless dieselskins knows something we don't.

Posted by: josh13 | June 29, 2010 12:54 PM | Report abuse

Sessions is a jerk. He has no business sitting in judgement on who does or doesn't belong on the federal bench. Let's remember that his won record was so disgusting on race and other issues that his own nomination was rejected.

So, any point he may have is invalid, why give him any publicity for it?

Posted by: pblotto | June 29, 2010 12:59 PM | Report abuse

Who really cares what Sessions says or does. He's a hypocrite of the first order, and racist to boot. He just likes hearing himself speak and making a commotion. She had to do what she did as an administrator.

Posted by: mtravali | June 29, 2010 1:02 PM | Report abuse

As a military Mom I agree with Kagan and others who just don't want their kids in the Military. Now we're seeing how it's racism not qualifications that marks this confirmation hearing. Attacking Kagan because she admires late Justice Marshall well I'm black and I admire President Kennedy. Facts Kagan is better qualified for the job then Alito and Roberts were so build a bridge and get over it. Senator Sessions is jealous he was never ever even thought of as a candidate when we had Republican Presidents. Bush nominated Harriet Miers who didn't know Law 101, Sessions saw no problem with that.

Posted by: qqbDEyZW | June 29, 2010 1:04 PM | Report abuse

This is another poorly written opinion. While you may have caught the spirit of the debate, the concreteness was lost. Keeping up with the hearings and having particular knowledge of the DADT debate within Harvard and SCOTUS, I know this could have been a better piece without the eye-catching headline. Kagan's arguments were clearly produced in this case and she lost. Although she lost, there were other avenues that were exercised that are far more powerful than full-access. A dean has a great deal of latitude when using influence.

Posted by: joeabsconditus | June 29, 2010 1:07 PM | Report abuse

So Ms. Rodriguez, what's your excuse going to be when Kagan pursues limiting free political speech because it offends "some" groups?

Posted by: WildBill1 | June 29, 2010 1:08 PM | Report abuse

Kagan believes that Don't ask and don't tell is wrong and so do many Americans. Anyone who wants to defend Democracy and the way of life of all Americans should be able to without prejudice due to their sexual preference. Anyone who wants to lay their lifes down for my freedom and my families way life, gay or straight, I salute you. For you all, the American soldiers that fight and lay their lifes on the line without question are the ones who defend us from tyranny and for that I"m ever so greatful, no matter if your gay or straight.
However, the military has its own rules and maybe one day it will change and than you can serve openly. But until than, rules are rules and it must be followed. Of all people who know how to follow rules, the American men and women who serve know that rules must be followed, its instilled in you all from bootcamp. Until the rules change........You know what you all must do.

Posted by: Realistic5 | June 29, 2010 1:16 PM | Report abuse

Kagan was an integral part of the Administration that adopted the don't ask don't tell policy. As a private citizen, she then railed against that policy. Which is it, dear? Moreover, she tried to bar military recruiters from Harvard career services on the grounds that the Solomon Amendment was unconstitutional, and only backed down Harvard decided it needed federal cash. Quite the principled lawyer, eh?

Posted by: squid1 | June 29, 2010 1:19 PM | Report abuse

Sorry, Ms. Rodriguez, but your efforts to be evenhanded are less than persuasive. By your own admission, Ms. Kagan handling of the conflicting responsibilities of her position (and shifting legal interpretations of the central issue, don't forget) was a legitimate attempt to find a "third way" that would respect both imperatives.

That being the case, Sen. Sessions was completely out of line in his attacks on her. As some other folks have observed, he and his fellow Republicans know they don't have any way to prevent her from being confirmed, so they're taking cheap shots as a consolation prize. They are bullies, and I'm delighted that she stood up to him.

Posted by: DCSteve1 | June 29, 2010 1:22 PM | Report abuse

I am a taxpayer and I PAY for the military. The Don't Ask Don't Tell policy is SELF-EVIDENTLY unconstitutional no matter what the armed services or the Supreme Court says. I am sick and tired of listening to apologists for this discriminatory policy. The policy is WRONG. It is unconstitutional. Those are the facts.

Posted by: nyrunner101 | June 29, 2010 1:25 PM | Report abuse

I'm still waiting for Jefferson Beauregard Sessions III to complain about "outside agitators" in the hearings room.

Posted by: artbee2000 | June 29, 2010 1:28 PM | Report abuse

"I am a taxpayer and I PAY for the military. The Don't Ask Don't Tell policy is SELF-EVIDENTLY unconstitutional no matter what the armed services or the Supreme Court says. I am sick and tired of listening to apologists for this discriminatory policy. The policy is WRONG. It is unconstitutional. Those are the facts."

A) Nothing is "self-evidentlly" unconstitutional, by definition. You have to refer to the constitution as a baseline, and sorry, this is actually a close call. B) The policy is wrong and it should not be in place, but the military didn't put it in place. Congress did. C) If it's so wrong, why did Ms. Kagan work for an Administration that supported the policy? D) If it's so wrong, why didn't Harvard refuse to take federal funding and thereby not have to accept military recruiters at career services?

Oh, right. When it comes to ambition and dollars and sense, feigned indignation goes out the door.

Posted by: squid1 | June 29, 2010 1:33 PM | Report abuse

I am no fan of Sessions, nor a fan of Kagan, either, but sorry Rodriguez, Federal law trumps school "policy". If we were to bring your reasoning to its logical fruition then any school with a policy that runs counter to Federal law, say equal protection, etc. could compromise and "accommodate". The end result, discriminatory policy. While I am sure some will scream that discrimination is different, it is not, it is simply a disregard or "compromise" of Federal law. Kagan's resistance because of her personal beliefs and/or the policy of Harvard Law is irrelevant as to the violation of the law. And, since when does Harvard get to selectively pick and choose the laws to which it adheres?

Posted by: fwillyhess | June 29, 2010 1:37 PM | Report abuse

sonofliberty09,

Why call her godless? What is your basis for that claim?

To all, if discrimination is built into law, what is more "right", following the unjust law or fighting to have the unjust law changed?

Republicans would argue that any judge who rules against that law or claims it to be unlawful is activist. I'd argue that sometimes the laws on the books are inherently unjust and have to be changed.

Posted by: pathfinder12 | June 29, 2010 1:40 PM | Report abuse

Rodriguez has some torturous logic, and she still fails to admit Sessions was wrong. He had no point. He complains that Kagan tried what she thought was a legal way to balance all the competing demands. I know, from an intransigent "No! Unless we get exactly what we want..." political party, that seems wrong, but ethics and morals might disagree.

Kagan followed school policy while still allowing recruiters access to students. It was a fine line, she walked it well and the lower court noticed that.

The author has "liberal" appropriately in quotes when talking about SCOTUS's 9-0 ruling, but that doesn't support Sessions. It just shows that a completely right of center SCOTUS can come together whenever a hatred is consistent across the spectrum of judges.

Posted by: groucho42 | June 29, 2010 1:47 PM | Report abuse

The only thing Jeff Sessions confirmed is that he is a bitter old moron from a hopeless, poor, backward, and uneducated state. The kind of state that has been a drag on the rest of us forever.

Posted by: fare777 | June 29, 2010 1:57 PM | Report abuse

Solicitor General Kagan's hypocrisy on the gay/military recruiting issue is breath-taking. While fighting to keep US military recruiters out of Harvard's Office of Career Services, she uttered not a peep about Harvard University's acceptance of $20 million dollars from Saudi Arabia to build an Islamic Studies center. While open homosexuals are prevented from serving in the US military, the penalty for homosexuality in Saudi Arabia is merely death. I guess understanding "nuanced" issues is not her strength.

Posted by: Buffal0Bill | June 29, 2010 2:12 PM | Report abuse

Pete Sessions is an extraordinarily good Congressman, and his critique was right on target (as usual). "Don't ask, don't tell" is a wrong-headed policy which needs discussion but what is at issue here is Kagan's ability to be a Justice, not homosexuality. Additionally, accusing Sessions of racism is ridiculous.

Posted by: drzimmern1 | June 29, 2010 2:27 PM | Report abuse

Sessions should be an expert in judicial nominations, given his confirmation hearings back in 1986.

Posted by: drlatham22 | June 29, 2010 2:33 PM | Report abuse

America is a country divided against itself. On the one hand, the US relies on military might to solve all international problems. And on the other hand we wring our hands at something like "don't ask don't tell" and pretend that it is something horrible and quite similar to what happened to Oscar Wilde (who spent time in prison) or to Alan Turing who eventually committed suicide (after he saved the Allies against the Nazis).

But I do wish that people on the right were not bringing God into this all the time. Both the left and the right are pretty much bananas, and for the right to bring in God is their way of proving, "We are more crazy than they are".

Posted by: rohit57 | June 29, 2010 2:42 PM | Report abuse

Pete Sessions is an extraordinarily good Congressman, and his critique was right on target (as usual). "Don't ask, don't tell" is a wrong-headed policy which needs discussion but what is at issue here is Kagan's ability to be a Justice, not homosexuality. Additionally, accusing Sessions of racism is ridiculous.

Posted by: drzimmern1
******************************

Um, Rep. Pete Sessions is a Texas Congresscritter from the Dallas area. Jeff Sessions is a Senator from Alabama, and he's the one dealing with the Kagan nom. Accusing him of racism has been going on for decades.

Posted by: kguy1 | June 29, 2010 2:52 PM | Report abuse

Many of you continue to label Republicans as Racist. Let me remind you of the way Clarence Thomas was treated by the Liberal Left. Were Liberals Racist for the way he was talked down to by the murdering Ted Kennedy? Let's talk about the way Liberals treated Miguel Estrada when he was nominated to Appeals Court of the District of Columbia. Were Liberals racist for opposing a Hispanic Male? You Liberals gave Harry Reid a pass on his Negro Dialect comment on Barrack Obama. You gave Howard Dean a pass when he made a comment that Republicans could not get this many black people in a room unless they invited the cleaning crew. It must be an election year as Liberals are bring out the race card. How predictable. Liberals have a chip missing.

Posted by: Cobra2 | June 29, 2010 3:02 PM | Report abuse

There is too much tendency among both liberals and conservatives to decide issues using some "fundamental" principles.

Whether openly gay persons belong in the military should be a decision made on the basis of military effectiveness and not on some constitutional grounds of equality or on some religious principle that gays are sinners.

After all we do not allow quite smart 17 year olds to vote and we do allow adults who hardly remember their own names to vote. Are we violating equality by not allowing 17 year olds to vote?

Such matters are judgment calls, but many liberals and conservatives tend to unreasonably convert them into fundamental principles.

That way common sense goes out the window.

Not all questions are decided in the Bible and not all questions are decided in the constitution. Once we accept this fact, then we can use our own intelligence.

Posted by: rohit57 | June 29, 2010 3:27 PM | Report abuse

jeff sessions is a moron.

Posted by: hihi22 | June 29, 2010 10:43 PM | Report abuse

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