Kagan, Sessions Spar on Harvard Recruiting Issue

By Mark Walsh — June 29, 2010 3 min read
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U.S. Supreme Court nominee Elena Kagan sparred sharply at her confirmation hearing this morning with the ranking Republican on the Senate Judiciary Committee over her handling of military recruiters while she was dean of Harvard Law School.

Sen. Jeff Sessions, R-Ala., pressed Kagan on whether she was hostile to recruiters in applying Harvard’s non-discrimination policy.

“I’m just a little taken aback by the tone of your remarks because it is unconnected with reality,” Sen. Sessions said near the end of his 30-minute question period, which he spent almost entirely on the recruiting issue. “I know you acted without legal authority to deny access to military recruiters.”

Kagan responded, “I respect, indeed, I revere the military. My father was veteran. ... I always tried to make sure I conveyed my honor to the military. In the short period the recruiters had that access through the veterans organization, recruiting actually went up. But I also felt the need to protect the students meant to be protected by [Harvard’s non-discrimination policy], the gay and lesbian students who might want to join the military,” Kagan said.

Kagan stressed this morning that she opposed as “moral injustice” the military’s “don’t ask, don’t tell” policy barring open service by homosexuals. When she became dean of Harvard Law School, she believed the school was in compliance with a federal law known as the Solomon Amendment—which requires higher education institutions to give military recruiters access under threat of loss of federal funds—by allowing the law school’s military veterans student organization to sponsor military recruiters, rather than having the school’s career office sponsor them. That changed after the military complained, and recruiters gained access to the career office until a federal appeals court, ruling in a case not involving Harvard, struck down the Solomon Amendment in 2004.

Sen. Sessions pressed Kagan on whether the Department of Defense had to pressure Harvard’s president and general counsel after Kagan, in response to the appeals court ruling, again made military recruiters work through the student veterans group. In 2006, the Supreme Court ruled 9-0 in Rumsfeld v. FAIR that the Solomon Amendment was constitutional. (SCOTUSBlog has this backgrounder on the issue.)

“You did what DOD wanted [only] after they went to the university counsel and the president [of Harvard] and said [Harvard was] going to lose some $300 million in aid, isn’t that a fact?” Sessions said.

Kagan said the DOD’s request went through “a discussion,” and ultimately Harvard agreed to reinstate military recruiters’ access to the law school’s career office.

“In fact, you were punishing the military,” Sessions said. “I don’t deny that you value the military but I do believe that the actions you took helped create a climate that was hostile to the military” at Harvard Law School, Sessions said.

Kagan stood by her handling of the issue. “Senator, the military, during my tenure, had full access” to the law school’s students, she said.

Earlier, Judiciary Committee Chairman Patrick Leahy had raised the issue in a more friendly way, suggesting that military recruitment actually went up while Kagan was dean at Harvard Law.

“There’s been this implication that recruiters didn’t have access,” Sen. Leahy, D-Vt., said.

“Sen. Leahy, military recruiters had access to Harvard Law School every single day I was there,” Kagan said. “I’m confident the military had access to our students, and our students had access to the military. And I think that is incredibly important. The military should have the best and the brightest.”

A version of this news article first appeared in The School Law Blog.