Judiciary panel oks Elena Kagan for Supreme Court

Elena Kagan
Elena Kagan

WASHINGTON (AP) - The Senate Judiciary Committee has voted to approve Elena Kagan's nomination to the Supreme Court.

The 13-6 vote sends Kagan's nomination to the full Senate, where she's expected to be confirmed as early as next week to succeed retiring Justice John Paul Stevens.

Just one Republican, Sen. Lindsey Graham of South Carolina, joined panel Democrats in supporting President Barack Obama's second Supreme Court nominee. A few more Republicans are likely to back her in the full Senate, where Democrats have more than enough votes to confirm her.

Most GOP senators argue that Kagan would put her political views ahead of the law. They also point to what they call her liberal agenda on such issues as abortion and gun rights.

Senator Sessions lays out his case against Kagan
(Full statement from his office)

"When Justice Sotomayor was nominated, she had good experience, as I said at that time. She had an exceptionally fine background for the Court; the kind I like to see.

When the President nominated Elena Kagan, I expressed my concern with her lack of experience—not simply her lack of judicial experience, but her lack of robust legal experience. There have been other Supreme Court nominees who did not serve as judges prior to their nominations, but for the most part, these Justices had spent a number of years in the full-time practice of law before joining the Court. They spent years trying cases, drafting and arguing motions, and taking depositions. That is the type of legal experience—the day in and day out practice of law—that forces clarity of thought. That is the type of experience that separates the "lawyer's lawyer" from the "political lawyer."

Ms. Kagan does not have that type of experience, she just does not. Instead, much of her experience has been defined by her involvement in politics. That is not disqualifying, but the American people must know that a nominee for a nominee for the Supreme Court will set their politics aside when they put on the robe. More fundamentally, we must be assured that a nominee approaches legal questions dispassionately and objectively, like a "lawyer's lawyer," and not like a "political lawyer."

So when I asked questions during the hearing, I was listening not only to the substance of her answers but also to the way she answered questions, because it tells you a great deal about someone's approach to the law. I wanted to know whether she would give the type of careful and clear answers that demonstrate objectivity and clarity of thought, or whether she would attempt to obscure and spin the truth. Unfortunately, throughout her testimony, I believe Solicitor General Kagan repeatedly chose to provide the Committee with political spin, rather than clearly and honestly admitting or describing events that are, objectively, capable of description.

I was quite surprised when Ms. Kagan denied the reality that she banned military recruiters from Harvard's recruiting office in order to punish the military for the Don't Ask, Don't Tell policy. That policy, of course, was not adopted by the military, but by Congress, and it was signed into law by her former boss, President Clinton. Her testimony regarding this issue was at best inaccurate, and at worst intellectually dishonest.

First, she claimed that at all times during her tenure that the military had "full and good access." This is simply not the case. The military lost an entire recruiting season at Harvard in 2005. Internal Pentagon documents show that, under Dean Kagan, Harvard was "playing games" with the Air Force. One e-mail said simply: "The Army was stonewalled at Harvard." Ms. Kagan testified that the school's student-led veterans group stepped in to support the military recruiting effort when Harvard would not. Yet, the veterans stated openly at the time that they could not take over because they were not equipped for the task. They were not happy about being asked to fill that role.

Second, she testified that in banning the military from the campus recruiting office, she "always thought we were acting in compliance" with federal law. But again, while this might sound good, it's just not true. Ms. Kagan clearly knew, from the time she announced her decision in November 2004, that her actions violated the law. In fact, she wrote an e-mail to the Harvard community acknowledging the Solomon Amendment was still in force, but that she had banned military recruiters in the "hope" that the federal government "would choose not to enforce" the law. She did not "always think [she was] acting in compliance" with federal law. Rather, she "hoped" that the federal government "would choose not to enforce" the law. Those are two very different things. I was expecting clarity in her answer.

Third, I was surprised to hear Ms. Kagan defend her actions by claiming that it was good enough to grant the military second-class access through a student-led veterans organization. Again, it was not good enough, and not right. Ms. Kagan knows better because when she first challenged the Solomon Amendment in the Third Circuit, she made this argument. But when Congress strengthened the law in 2004, to mandate equal access, Ms. Kagan knew that argument was no longer plausible. When she challenged the Solomon Amendment in the Supreme Court, she changed her argument and claimed instead that Harvard did not need to allow military recruiting at all. The Supreme Court flatly rejected her theory, unanimously calling it "rather clearly not what Congress had in mind."

Despite this clear record, at her hearing Ms. Kagan returned to her old tune and again claimed she believed that directing the military to work through a student group was good enough to comply with the Solomon Amendment. In other words, Ms. Kagan argued before this Committee what she did not argue before the Supreme Court because she knew it wasn't even plausible.

The bottom line is this: when Ms. Kagan chose to block military recruiting, the law was crystal clear: She knew she was defying the law. Her claim to this Committee that she "thought" she was in compliance is not accurate. Rather than admit what she did and explain why she did it, Ms. Kagan chose to spin the facts in a way that was at best, misleading, and at worst, dishonest.

Ms. Kagan's testimony regarding her actions in the Witt case, in which the Don't Ask, Don't Tell law was challenged, was perhaps even more disturbing to me. Despite the clear record, she denied the reality that she abdicated her duty as Solicitor General by refusing to appeal the Witt decision. I spoke at length about her actions in the Witt case on the Senate floor, so I will not go into detail here. But the fact of the matter is that the Witt decision placed the Don't Ask, Don't Tell law—a law that she has stated repeatedly that she personally abhors—in serious jeopardy and has made it unworkable. Ms. Kagan chose, for stated reasons that are wholly unsatisfactory, not to seek an interlocutory, immediate Supreme Court review.

At her hearing, Ms. Kagan claimed that "the question we had to decide was whether to challenge that Ninth Circuit decision at an early stage or at a late stage of the case." Her answer left the false impression that the government had to choose between appealing the decision then, or later after a trial. But again, that is just not true. The government could have taken two bites at the apple. If the Court did not grant their interlocutory appeal, then it would still have the right to appeal after trial. As Solicitor General, she knew that.

She also testified that she believed "it would be better to go to the Supreme Court with a fuller record." But, the Ninth Circuit ruling was clearly contrary to prevailing Supreme Court case law on deference to military policy, as Ms. Kagan herself described that case law at her Solicitor General confirmation hearing. There was no need for a "fuller record" to establish that fact.

And there is no question that Ms. Kagan personally knew the damage it would cause to the military's interests if the Witt case was allowed to go to trial. According to the plaintiff's lawyers from the ACLU, they were invited to meet with Ms. Kagan before she made her final decision to block Supreme Court review, and the plaintiff's lawyers were told in no uncertain terms that discovery and trial would be enormously disruptive to the military.

Her decision not to appeal pushed the government into a disruptive trial process with full knowledge that it would damage the military's interests. Perhaps more importantly, she failed to appeal that decision when she knew that letting it stand would do damage to the Don't Ask, Don't Tell law, a law that she abhors. Rather than admit and discuss this honestly, she chose to provide this Committee with political spin. It is very difficult not to conclude that her personal policy objections played a role in this decision. I think it was a failure to do her duty, and she promised specifically before the Committee that she would defend Don't Ask, Don't Tell aggressively."

(Copyright 2010 by The Associated Press. WSFA 12 News contributed to this report. All Rights Reserved.)