[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 Kagan reinstated the ban after the Solomon Act was struck down by the Third Circuit but rescinded the prohibition after the Department of Defense (DOD) [official website] threatened to withhold all aid from HLS.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.