Bench Memos

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Kagan Testifies to the Left of Justice Stevens


Senator Sessions just finished an interesting exchange with Kagan on “Don’t Ask, Don’t Tell” and her decision to prohibit military recruiters from taking advantage of Harvard’s on campus recruiting services.  Kagan is being extremely disingenuous, repeatedly suggesting that the military had equal access and pretending that she actually helped the military.  Nonsense. 

If the military had equal access, what was the point of the hullaballo at Harvard?  Was the Department of Defense making it up when they said they didn’t have equal access?  She told Senator Sessions that she still disagrees with “Don’t Ask, Don’t Tell” and believes it to be unjust.  So was she merely voicing objections, and not putting any official Harvard force behind her decisions affecting the military?  I think the gay-rights community would be surprised to hear that Kagan’s official actions at Harvard had no impact on the nation’s military recruitment policy, which she believed to be a “moral outrage.” 

Kagan believes the policy enacted by Congress and signed by her former boss, President Clinton, is unjust.  Her way of responding to that perceived injustice was to penalize military recruiters.  But she never had the courage to raise the same objections while working for President Clinton, and now doesn’t have the courage to admit that she wanted her official actions at Harvard to have a negative impact on the military’s recruitment. 

Kagan is far out of the mainstream on this issue.  She reduced the military to second-class employer and took such an untenable legal position on the issue that even Justice Stevens (and every other Justice!) disagreed when it was presented to the Supreme Court.  All this debate came on the heels of Kagan claiming that “we are all originalists” and refusing to embrace the label “progressive.”  We know she isn’t an “Originalist” but it is clear she will play one on TV during hearings week.

 – Gary Marx is executive director of the Judicial Crisis Network.


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