Military Families Caution Senators on Kagan Nomination

By Fred Lucas | June 25, 2010 | 5:46 PM EDT

Senate Judiciary Committee members, from left, Chairman Sen. Patrick Leahy, D-Vt., Sen. Amy Klobuchar, D-Minn, and Sen. Charles Schumer, D-N.Y., share a laugh on Capitol Hill in Washington, Wednesday, June 23, 2010, to discuss the committee's upcoming confirmation hearing for Supreme Court nominee Elena Kagan. (AP Photo/Alex Brandon)

( – As Supreme Court-nominee Elena Kagan undergoes her first day of hearings before the Senate Judiciary Committee on Monday a military families group is raising concerns about her fitness to serve on the high court.
The group, Military Families United, sent a letter on Friday to Judiciary Committee Chairman Patrick Leahy (D-Vt.) and ranking member Sen. Jeff Sessions (R-Ala.) citing Kagan’s actions to block military recruiters from Harvard Law School – when she was the dean there (2003-09) – based on her opposition to the “don’t ask, don’t tell” policy that bars homosexuals from serving openly in the military.
“We find Ms. Kagan’s failure to offer support to our military in a time of war, and her willingness to defy federal law as troubling and appalling,” said the letter signed by Robert Jackson, director of government relations for Military Families United.
Military Families United, a non-partisan non-profit group, is not opposing the Kagan nomination outright.
“While Military Families United is taking no official position on her confirmation, we are extremely concerned with Ms. Kagan’s perceived anti-military bias as well as her failure to comply with federal law in this regard,” the letter said.
“We are hopeful that the Senate Judiciary Committee will fairly and vigorously question her motivation and reasoning on this matter. Thousands of military families, if not all Americans, deserve to hear an explanation of her actions,” it added.
Senate Republicans released the letter before noon on Friday.
“What may not be clear to some in the progressive circles of academia is certainly clear to the vast majority of Americans: support for the troops and respect for the law, can’t be set aside whenever politically correct,” Sessions wrote in a commentary that ran in more than 50 newspapers on Friday.
“In one of the most significant positions she’s held, Ms. Kagan used her authority to hinder – rather than help – the soldiers who fight and die for our freedoms,” he added.
The White House has said that Kagan broke no laws while dean at Harvard Law School, and contends that more Harvard law graduates were recruited during her tenure as dean.
Further, during a conference call with reporters on Friday, White House Senior Adviser David Axelrod said Kagan is a mainstream nominee with broad bipartisan support from the legal community, citing endorsements from former Republican Solicitor Generals Ted Olsen and Ken Starr.
Not addressing the military issue directly, Axelrod said the only opposition to Kagan is based on politics.
“From the beginning, from the announcement of this nomination, it just feels that we’ve had an opposition in search of a rationale,” Axelrod said. “They’ve jumped from one thing to another, never really sustaining any argument.”
After President Bill Clinton made “don’t ask, don’t tell” the military policy in the 1990s, Harvard attempted to prevent the military from recruiting on campus, alleging the military violated the university’s anti-discrimination policy.
Congress passed the Solomon Amendment in 1995 to require schools to allow military recruiters on campus as a condition of federal funds. But Harvard persisted, until 2002 when the school was threatened with losing federal taxpayer funding. The school then accepted recruiters, a policy that Kagan inherited when she came on board as dean in April 2003.
But Kagan reversed the policy, and filed a legal brief to challenge the Solomon Amendment in an existing case. In the end, the U.S. Supreme Court unanimously upheld the constitutionality of the Solomon Amendment.
“Simply put, Harvard was legally bound by the Solomon Amendment every single day that Ms. Kagan was dean,” Sessions wrote. “Thus, when Ms. Kagan banned the military from the recruitment office she wasn’t only discriminating against our men and women in uniform, but was doing so in defiance of federal law.”
White House Counsel Robert Bauer told reporters on Friday that he expects the Senate Judiciary Committee to “fully engage” Kagan about her record on a number of issues, but he is confident she will impress the panel.
“The hearing is going to permit you to see a Supreme Court nominee who comes before the United States Senate extraordinarily well-prepared for the positions for which the president has nominated her. She is going to be in a position to talk knowledgably and in-depth, but clearly and receptively to the range of questions that are appropriately asked of a Supreme Court nominee in the confirmation process,” Bauer said.