Sessions Misrepresents Kagan’s Opposition To Solomon Amendment To Paint Her As An Activist Justice

Moments ago, Sen. Jeff Sessions (R-AL), the ranking Republican on the Judiciary Committee, appeared on CNN to express his doubts about the nomination of Solicitor General Elena Kagan to fill the vacancy on the Supreme Court created by the retirement of Justice John Paul Stevens. Pressed by the anchor to explain what he finds so “troubling” in her record, Sessions misrepresented her opposition to the Solomon amendment — the measure which cuts off federal funding to colleges that don’t allow the military to recruit on their campuses — to portray her as an activist justice. Sessions presented Kagan as unilaterally opponent of the DADT policy and suggested that Kagan personally barred military recruiters from campus:

SESSIONS: The thing I was personally involved with was the Solomon Amendment. What happened was a number of law schools, Harvard being, I think, a leader when she was there, would not allow the military recruiters to come on to the law school to recruit jag officers for the military because she didn’t agree with the ‘Don’t ask, Don’t Tell’ policy that president Clinton had adopted. They just wouldn’t let them come on campus. We had 1,000 soldiers killed defending free speech and the right of Harvard to exist in freedom during that period of time. So I think that would be something that would be asked [...] she felt this was discriminatory, but it was the established policy of the United States, President Clinton’s policy and she could work to change that, but I don’t think it was acceptable. I do not believe it was acceptable for her to say you can’t even come on our campus because I disagree with your policy.

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In reality, when Kagan became Dean of Harvard Law School in 2003, she maintained existing Harvard policy, which had already carved out a special exception for the military from the University’s 1979 nondiscrimination policy. That policy required “any employer using the Office of Career Services for recruiting to sign a statement indicating that it did not discriminate on the basis of sexual orientation or certain other criteria,” but Harvard made an exception for military recruiters in 2002 (it allowed recruiters to operate from an alumni operation before then) to protect its stream of federal funding. Kagan, along with half of Harvard’s legal faculty, signed an amicus brief in support of overturning the amendment and “in November 2004, a divided panel of the Third Circuit” ruled in their favor. Kagan “reinstated Harvard Law School’s original nondiscrimination policy,” only to rescind the prohibition after the Supreme Court upheld the Solomon amendment.

Far from leading the charge against Solomon in the courts, moreover, Kagan argued that “the case should be resolved on statutory grounds,” rather than through a constitutional challenge. Her attempts to overturn the policy may have been driven by her opposition to DADT, but they were also supported by the University’s long-standing nondiscrimination policy.