KAGAN NOMINATION; Congressional Record Vol. 156, No. 79
(Senate - May 24, 2010)

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[Pages S4108-S4110]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

                            KAGAN NOMINATION

  Mr. SESSIONS. Mr. President, Americans cherish and respect their 
military. They support and celebrate those who wear the uniform and 
serve our Nation. When our Nation is at war, they understand that this 
obligation of support deepens. Indeed, just Friday, I got forwarded to 
me an e-mail from a mother whose son was being deployed to Iraq, and 
she said that the one thing critical to them was to feel they had the 
support of the American people.
  The American people understand that no matter what your ideology, no 
matter your view of the conflict we are engaged in, you have to support 
those whom we in Congress have deployed to execute policies that the 
President and the Congress have adopted. They didn't adopt the 
policies; we did. And when we send them, they deserve our support. The 
American people understand that it is not about politics but about the 
duty of citizenship--a duty to stand in solidarity with those in harm's 
way and those who defend our freedoms.
  I believe these sentiments--shared by Americans overwhelmingly--are 
important as we evaluate the conduct of President Obama's Supreme Court 
nominee, Elena Kagan. They will raise serious questions that really 
must be answered before we have a final vote. I think it is just as 
important for me to say that.
  Some people have suggested that the issue I am going to talk about is 
not significant. I think it is. I was involved in the debate of the 
Solomon amendment. I remember how it happened.
  Ms. Kagan, who became the dean of Harvard Law in 2003, kicked the 
military off Harvard's campus and out of its campus recruitment office. 
She gave the big law firms full access to recruit bright young 
associates but obstructed the access of the military as it tried to 
recruit bright young JAG officers to support and represent our soldiers 
as they were risking their lives for our country. It was an 
unjustifiable decision. But rather than acknowledge that Ms. Kagan had 
acted inappropriately, the Obama administration has instead done 
something that, to me, is odd: it has tried to defend this indefensible 
activity--distorting the clear facts in the process. We need to get 
that straight. As we begin to think about this nomination, we need to 
understand the facts.
  During a recent television interview, Vice President Biden actually 
said that Ms. Kagan was ``right'' to interfere with military 
recruitment. He then defended her conduct with the suggestion that she 
was somehow acting under a court order to keep the military people off 
campus. In reality--let's be correct--I misspoke--to keep the military 
from utilizing the normal recruitment offices available to every other 
law firm in America. In reality, the opposite situation is true. Ms. 
Kagan disregarded the law, really, in essence, in order to obstruct 
military recruitment during a time of war.
  In 1995, Congress passed the Solomon amendment, which required 
universities to give equal access to military recruiters if they wished 
to continue to receive taxpayer funding for their university programs.
  The passage of the Solomon amendment was a matter of a large national 
debate. I suspect most Americans have a vivid recollection of those 
discussions. It was well known that certain law schools, such as 
Harvard, were blocking the military from going to their recruitment 
offices and utilizing the resources like any other entity could do.
  Administrators at Harvard and other law schools had been restricting 
access of military recruiters to campuses for several years, citing as 
their reason their opposition to President Clinton's don't ask, don't 
tell policy about gays in the military. That was something on which 
Congress had voted. It is a matter of statutory law, and President 
Clinton had indicated his support in the way it would be enforced. It 
came to be fairly settled as a national policy in that regard.
  It was Congress's hope that the Solomon amendment would put an end to 
this obstruction. It basically said: You cannot deny our military the 
right to come on campus if they are following U.S. law, and still get 
Federal money. But Harvard persisted nonetheless.
  Finally, in 2002, I believe it was the Air Force that made an 
official complaint. The Department of Defense spoke up. It quoted the 
statute that had been passed in the U.S. Code, title 10. They quoted it 
to Harvard and said: If you continue to deny entrance of our military 
personnel to the recruiting centers, you get no more Federal money. At 
that point, the principle evaporated. This great principle on which 
they were standing, a little money dangled in front of them and they 
folded on this point.
  Dean Clark, Ms. Kagan's predecessor at Harvard, got the message, and 
he complied. The restrictions on the military recruitment were lifted.
  This means that when Ms. Kagan became dean of Harvard, the military 
had full, open, and equal access to campus facilities. That is the 
policy she inherited; that is the policy she deeply opposed; and that 
is the policy she set about to reverse.
  Ms. Kagan began her efforts to reverse the policy when she joined 53 
of her academic colleagues in filing a brief to challenge the Solomon 
amendment. This case had been filed in another circuit, not Harvard's. 
If their efforts in this legal attack were successful, they would again 
obstruct the military's access on campus, and they could do so without 
losing Federal funds. That is what she wanted, no doubt about that.
  Initially, the Third Circuit Court of Appeals, not her circuit, heard 
the case, and they issued a 2 to 1 decision that ordered the district 
court in New Jersey to issue a preliminary injunction suspending 
enforcement of the

[[Page S4109]]

Solomon amendment in that district in New Jersey. The injunction was to 
take effect after a certain time period. I believe 50 days. But that 
injunction was never issued, even in that one district of New Jersey, 
because the Supreme Court of the United States undertook to hear the 
case, and the court of appeals, respecting the Supreme Court's view, 
eliminated their order staying the enforcement of the Solomon 
  I note, even if the Third Circuit's ruling had not been stayed, it 
would have applied only to the Third Circuit, not to Harvard. Remember, 
the Solomon amendment was a duly enacted law passed by the Congress.
  Fully understanding all of this, as the trained and educated dean she 
was, Dean Kagan still used this ruling as a pretext to deny the 
enforceability of the Solomon amendment on the Harvard campus, again 
kicking the military out of the campus recruiting office. It did not 
apply. It was never made applicable and certainly not made applicable 
to the Harvard campus. But yet she used that as a pretext to carry out 
her desires about the don't ask, don't tell policy.
  But I am told: Don't worry about that, Jeff. They could still talk to 
veterans groups on campus. They were not barred from campus. They just 
could not use the center for recruiting, but they could still talk to 
people on campus, and it is not so important. Well, if it is not so 
important, why did Dean Kagan go to such great lengths to have the law 
overturned, even risking Harvard's financial support? It was important.
  Barred from institutional access, the military now had to work 
through a student group, the Harvard Law School Veterans Association. 
The veterans association, however, did not believe this was fair to 
them. They had courses to attend and school work to do. They wrote to 
their classmates about Dean Kagan's decision and explained they were 
unable to fill the role of the military recruiters that she had 
excluded. This is what they said:

       Given our tiny membership, meager budget, and lack of any 
     office space, we possess neither the time nor the resources 
     to routinely schedule campus rooms or advertise extensively 
     for outside organizations, as is the norm for most recruiting 

  But Dean Kagan still did not relent. Only when the military again 
threatened to cut off money to Harvard did she give in. This was the 
second time they had to make this threat. This statute says the 
Secretary of Defense shall notify them that they will no longer get 
Federal funds if they do not allow recruiters on campus.
  Ms. Kagan reversed Harvard's existing policy in order to obstruct the 
access of the military recruiters. She disregarded a congressional 
statute. Eventually, her view was rejected by the Supreme Court.
  So what happened when the Third Circuit case got to the Supreme 
Court? She filed a brief with a group of other academics attacking the 
Solomon amendment. What happened? By an 8-to-0 vote, the U.S. Supreme 
Court rejected her brief.
  According to Dean Kagan, actions she took against the military were 
motivated by her opposition to don't ask, don't tell. But somehow her 
fierce opposition was not enough to prevent her, I note 
parenthetically, from serving as a loyal aide to the man who created 
the policy, President Clinton. No, instead she directed her punishment 
to the military that had nothing to do with it. The soldiers, the 
recruiters who wanted to come on Harvard campus had nothing to do with 
establishing this don't ask, don't tell policy. It was Congress's law. 
It is statutory, and President Clinton endorsed it with his don't ask, 
don't tell enforcement strategy. It was the law of the land. It was not 
a policy dreamed up by some general somewhere. She knew that.
  Ms. Kagan's conduct may have been applauded by some in the 
progressive circles of academia, but I think the American people would 
be uneasy about it. They are not sympathetic to the actions she took 
against the brave men and women who defend the rights and freedoms of 
Ms. Kagan, of Harvard professors, and of all Americans.
  Dean Kagan has no judicial record to examine, and she has very little 
experience as a lawyer. One of the most prominent features of her legal 
experience and her tenure at Harvard is scarred by her open 
mistreatment of the military and her disregard for very clear law. I 
wish it were not so, but it is.
  This matter does raise questions of whether Dean Kagan would be able 
to serve all Americans as a responsible, impartial jurist or whether 
she would bring her ideological agenda to the bench and attempt to get 
around the Constitution and the laws of the United States to effectuate 
what she thinks might be a better policy. That is the question I think 
is legitimate to ask, as well as to ask, in a serious way: What were 
you thinking when you punished our men and women in uniform because you 
did not like what Congress and your President--President Clinton--did 
with regard to their policies on gays in the military?
  It is not a small matter. I believe this decision was clearly wrong. 
I believe it was not lawful. I believe it was not good policy. We will 
need to talk about that as we go forward and to hear a sincere 
explanation from the nominee.
  This is not something from which we cannot learn. It is not 
necessarily the decisive matter in this person's nomination. But it is 
not correct to say it is an insignificant matter. It is a significant 
matter, a very significant matter. And it is a matter of significance 
such that whoever comments about it, even if it is the Vice President 
of the United States, they should be accurate. They should not be 
inaccurate, as has happened repeatedly from my observation in the 
media, as well as my good friend, our former colleague, Senator Biden, 
who also served on the Judiciary Committee. It is time we get these 
facts straight.
  I also wish to express a concern about one more matter. During her 
time in the Clinton White House, 1995 to 1999, Dean Kagan, now 
Solicitor General Kagan, served in the White House Counsel's Office and 
later as Director of Domestic Policy Council in the White House. That 
is one of the few extensive public records she has. We need to obtain 
the documents relating to that service in advance of the hearings that 
now have been set for June 28. I think it is a rush to get ready for 
June 28, but I told Senator Leahy, our chairman, that he is the boss, 
and we will try to be ready by the 28th. But we both know it is 
important to have these documents in time to examine them before the 
committee hearing because so little other documents exist as to her 
  All the documents that have been requested I believe the committee is 
entitled to see. Senator Leahy has joined with me. We worked together 
on this. It appears President Obama has decided not to assert any 
claims of Executive privilege that would block the production of any of 
these documents. We received a letter from the Clinton Library on 
Friday where these records are held indicating that they understand 
President Obama will not make any claims of privilege.
  The White House recognizes these documents are an important part of 
Ms. Kagan's record. In fact, after she was nominated, the White House 
sent a public letter to the National Archives asking for release of 
documents relating to her service in the Clinton White House. They 
included all of her e-mail documents in their request. But the White 
House request and media requests under FOIA are different from the 
committee request.
  So last week, Chairman Leahy and I sent a letter to the Clinton 
Library requesting these documents.
  I appreciate the leadership of Senator Leahy, who has been through so 
many of these confirmation matters--this is consistent with our 
history--and I appreciate his efforts on the letter and to get this 
information. But I would note there are important distinctions between 
the Obama White House's request and the committee's request.
  First, the restrictions that apply to run-of-the-mill Freedom of 
Information Act requests do not apply when the committee requests 
document. Second, under the Presidential Records Act, President Clinton 
would normally be able to block the release of certain documents for up 
to 12 years. But under the PRA, the committee's request overrides any 
attempt by President Clinton to block the release of these records. 
Faced with a committee request, the only basis for withholding 
documents is executive privilege, and

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President Obama has apparently decided not to do that.
  So the concern is that last week the director of the library was 
quoted in the Los Angeles Times as saying that it would be ``very 
difficult'' for them to comply by the June 28 hearing date. The 
director said, ``there are just too many things here,'' and that 
``these are legal documents and they are presidential records, and they 
have to be read by an archivist and vetted for any legal restrictions. 
And they have to be read line by line.''
  In the letter we received on Friday, the library indicated they will 
start delivering documents by June 4--3 weeks before the hearing--and 
then they will make additional deliveries on a rolling basis. They did 
not tell us by when they will provide all the documents. I know they 
have a hard job. Maybe they have to do all these things, but the fact 
is we have a deadline that has been set by Chairman Leahy to start the 
hearing on June 28, and we are not able to, in my view, conduct a good 
hearing if we don't have the documents.
  So I am trying to make clear to my colleagues that we are heading 
toward what could be a train wreck. I don't believe this committee can 
go forward without these documents in the request and have an accurate 
hearing. The public record of a nominee to such a lifetime position as 
Justice on the Supreme Court is of such importance that we cannot go 
forward without these documents. I hope we will get those in a timely 
fashion. If not, I think we will have no choice but to ask for a delay 
in the beginning of the hearings.
  I thank the Chair, and I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Michigan is