Senators question Kagan’s views on Solomon Act, Citizens United

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Senators question Kagan’s views on Solomon Act, Citizens United

June 29, 2010 12:03:31 pm

[JURIST] The second day of confirmation hearings [materials] for Supreme Court [official website] nominee Elena Kagan [JURIST news archive] began Tuesday with Kagan defending her decision to restrict military recruiter access to Harvard Law School [academic website] while she was dean. Senate Judiciary Committee ranking member Jeff Sessions (R-AL) [official websites] called Kagan’s position “unconnected to reality” and held that it “punished” the military. During her deanship at HLS, Kagan reinstated a prohibition against military recruiters using the Office of Career Services (OCS) because the military’s “Don’t Ask Don’t Tell” (DADT) [JURIST news archive] policy violated the school nondiscrimination code. HLS has previously made an exception to the nondiscrimination code for the military after Congress passed the 1996 Solomon Act [Georgetown backgrounder], which blocks federal funding for schools refusing to allow military recruitment on campus. Kagan reinstated the ban after the Solomon Act was struck down by the Third Circuit but rescinded the prohibition after the Department of Defense (DOD) [official website] threatened to withhold all aid from HLS. The Supreme Court has since upheld the Solomon Act. During the hearings, Kagan defended her reinstatement of the restrictions on military recruiting, holding that the DOD “ignored” the Third Circuit ruling striking down the Solomon Act. Sessions said that Kagan’s action was not “with the law” but instead part of her agenda against DADT.

Later on Tuesday, in a friendlier exchange with Senator Orrin Hatch (R-UT), Kagan discussed her opinion of the recent Supreme Court ruling in Citizens United v. Federal Exchange Commission [Cornell LII backgrounder; JURIST report], which eased restrictions on political campaign spending by corporations. Kagan carefully avoided answering his questions on her personal views about the case, but asserted that the Supreme Court decided wrongly. She also noted that there is a difference between an advocate and a judge. Kagan’s distinction was meant to assure Republicans that she will be an impartial justice and that her ideological view will not play a role on the bench. Hatch supported Kagan when she was confirmed to her current position as Solicitor General, but has criticized her lack of judicial experience. Hatch was less critical during his time on the floor Tuesday raising a series of questions rather than direct criticism.

Kagan’s confirmation hearings began Monday [JURIST report] with Democratic and Republican senators offering contrasting interpretations of Kagan’s judicial philosophy and lack of experience on the bench. In his opening statement, Senator Ted Kaufman (D-DE) [official website] welcomed Kagan’s lack of judicial experience, stating that her experience with all three branches of government would help to diversify the bench and bring a fresh perspective to a court that is composed of all former judges. Kagan’s lack of experience was not similarly embraced by Sessions, who applauded her work as outside the courtroom, but held that there is no replacement for first-hand judicial experience. Obama nominated Kagan [JURIST report] in May to replace Justice John Paul Stevens [official profile; JURIST news archive], who announced his retirement [JURIST report] in April. Kagan became the first woman confirmed as Solicitor General [JURIST report] in 2009.

Martin Luther King Jr. wrote his Letter from Birmingham Jail

On April 16, 1963, an incarcerated Martin Luther King, Jr. (arrested for demonstrating in defiance of a court order) wrote his Letter from Birmingham Jail in response to a published statement by eight fellow clergymen from Alabama.

Part of the letter read: We have waited for more than 340 years for our constitutional and God-given rights. The nations of Asia and Africa are moving with jetlike speed toward gaining political independence, but we stiff creep at horse-and-buggy pace toward gaining a cup of coffee at a lunch counter. Perhaps it is easy for those who have never felt the stinging dark of segregation to say, "Wait." But when you have seen vicious mobs lynch your mothers and fathers at will and drown your sisters and brothers at whim; when you have seen hate-filled policemen curse, kick and even kill your black brothers and sisters; when you see the vast majority of your twenty million Negro brothers smothering in an airtight cage of poverty in the midst of an affluent society; when you suddenly find your tongue twisted and your speech stammering as you seek to explain to your six-year-old daughter why she can't go to the public amusement park that has just been advertised on television, and see tears welling up in her eyes when she is told that Funtown is closed to colored children, and see ominous clouds of inferiority beginning to form in her little mental sky, and see her beginning to distort her personality by developing an unconscious bitterness toward white people; when you have to concoct an answer for a five-year-old son who is asking: "Daddy, why do white people treat colored people so mean?"; when you take a cross-county drive and find it necessary to sleep night after night in the uncomfortable corners of your automobile because no motel will accept you; when you are humiliated day in and day out by nagging signs reading "white" and "colored"; when your first name becomes "nigger," your middle name becomes "boy" (however old you are) and your last name becomes "John," and your wife and mother are never given the respected title "Mrs."; when you are harried by day and haunted by night by the fact that you are a Negro, living constantly at tiptoe stance, never quite knowing what to expect next, and are plagued with inner fears and outer resentments; when you are forever fighting a degenerating sense of "nobodiness" then you will understand why we find it difficult to wait. There comes a time when the cup of endurance runs over, and men are no longer willing to be plunged into the abyss of despair. I hope, sirs, you can understand our legitimate and unavoidable impatience. Read the full text of the Letter.