Gay issues continue to dominate as Senate committee recommends Kagan’s nomination

Jeff Sessions

Jeff Sessions

Both “Don’t Ask, Don’t Tell” and same-sex marriage continued to be a prominent focus of the confirmation proceedings for Elena Kagan to the U.S. Supreme Court, as the Senate Judiciary Committee Tuesday recommended the confirmation.

The vote and debate in committee was—with one exception—strictly partisan—Democrats spoke in favor and Republicans against her nomination. The vote was 13 to 6.

Senator Charles Grassley (R-Iowa) said Kagan has “shown a strong commandment to far left ideological beliefs” and that “her liberal convictions, rather than the law, seemed to guide her recommendations.” Among his specific concerns, he said, were her actions that “actively defied federal law by banning military recruiters from campus while the nation was at war.”

Jon Kyl (R-Ariz.) criticized her for “evading” a question about whether she could find a constitutional right that would enable same-sex couples to obtain marriage licenses.

But Dianne Feinstein (D-Calif.) said Kagan would “clearly” move today’s conservative Supreme Court back toward the ideological center. And Richard Durbin (D-Ill.) said Kagan’s opposition to “Don’t Ask, Don’t Tell” (DADT) could not be construed as a statement against the military but, rather, a statement against DADT.

As he did during Kagan’s confirmation hearing, Jeff Sessions (R-Ala.), the ranking Republican on the Senate Judiciary Committee, led the attack against her Tuesday. He reiterated, at length, his deep concern over Kagan’s actions opposing DADT, the federal law banning openly gay people from the military.

He accused Kagan and Harvard of “playing games” with Air Force recruiters and having “stonewalled” their efforts to recruit attorneys from among students. He said her answers to questions about her opposition were either “inaccurate,” “not true,” or “intellectually dishonest.”

“The bottom line is this,” said Sessions, “when Miss Kagan chose to block military recruiting, the law was crystal clear. She knew she was defying the law.”

Sessions said he was even more disturbed by Kagan’s actions, as Solicitor General, in regards to a challenge of the DADT law in federal court. The case in question was Margaret Witt v. Air Force, in which a highly decorated military nurse was discharged, apparently after a third party told military officials she was gay. In 2008, Witt, represented by the ACLU, won a preliminary court victory when the 9th Circuit U.S. Court of Appeals ruled she had a right to a trial. Kagan recommended the federal government not appeal that preliminary victory to the U.S. Supreme Court but to wait instead for the trial and its appeal to be completed.

Sessions said this amounted to Kagan having “abdicated” her duty as Solicitor General by “refusing to effectively appeal the Witt decision.”

“The Witt decision,” said Sessions, “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.”

During her confirmation hearing, Kagan had said that the Obama administration declined to appeal at that time in order to build a factual record that would demonstrate to the Supreme Court the burden the Witt ruling would place on the military, by requiring that each person discharged under DADT have a trial.

“The government would have to show in each particular case,” said Kagan, “that a particular separation caused the military harm, rather than view it in general across the statute.” Such individual inquiries, she said, “would disrupt military operations.”

Her response seemed to take the wind out of Sessions’ attack during the confirmation hearing, and he said he’d take another look at it. But on Tuesday, Sessions said her response “left a false impression that the government had to choose between appealing a decision then or later, after trial, but again that is not true.” Sessions said the government could appeal at both points “and should.”

“Her decision not to appeal pushed the government into a disruptive trial process with full knowledge that it would damage the military’s interest,” said Sessions. “She knew that letting [the preliminary ruling in Witt] stand would do damage to the ‘Don’t Ask, Don’t Tell’ law….Her personal policy objection [to DADT] played a role in this decision…[It was] a failure to do her duty.”

Senator Jon Kyl (R-Ariz.) and John Cronyn (R-Texas) also focused on Kagan’s actions around military recruiters while dean of Harvard Law School and her decision not to appeal the Witt case. On the latter, Kyl said there “was no need to develop a fuller record” in the Witt case. Cornyn reiterated his concern that Kagan’s opposition to recruiters on campus “stigmatized” the military.

Arlen Specter, the Republican-turned-Democrat member of the Committee, lamented the partisan nature of the vote on Kagan, saying it reflected the ideological split on the high court, as well.

The exception to the partisan line in Committee was Senator Lindsey Graham (R-S.C.), who voted to support the nominee. Graham supported the nomination of Sonia Sotomayor to the high court, as well, last year. He said Kagan’s challenge of the DADT law was a legitimate exercise of democracy and he said he does not believe Kagan to be anti-military.

Graham did not focus on any particular quality in Kagan that affected his vote and said he wouldn’t expect a nominee to say, in front of the committee, specifically how she would vote on same-sex marriage. But he was moved, he said, by the support of conservative former appeals court nominee Miguel Estrada for Kagan’s nomination.

Although a specific date for the Kagan nomination to reach the Senate floor has not yet been set, Senate Majority Leader Harry Reid has made clear he plans to take up the matter before the August 9 recess.

Leave a Reply