Bench Memos

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Kagan Hearing—Sessions’s Round 2


[Leahy passed, at least temporarily, on his Round 2.]

Sessions:   Asks Kagan about actions as SG on Don’t Ask, Don’t Tell litigation in failing to seek Supreme Court review in Witt.  Kagan:  Interlocutory in nature.  (EW:  Inadequate basis, for reasons I’ve explained in linked posts.)  Agrees that Ninth Circuit ruling undercut statute.  Decided that waiting was better course.  Would have better record on “strange thing” that  Ninth Circuit was requiring military to do.  (EW:  Unconvincing reasoning.  Could seek review at both stages (if cert not granted first time around).  For opponents of DADT, kicking the case down the road was politically appealing.) 

Kagan agrees that her reference to various cases as “settled law” means only that they are existing precedents.


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