We haven’t heard much about the nomination of Elena Kagan to the Supreme Court lately, which has been one of the few beneficial side effects of the Gulf disaster for the Obama administration. Senator Jeff Sessions, the ranking Republican on the Judiciary Committee, addressed that lack of attention yesterday in a lengthy floor speech about Kagan’s controversial record with military recruiters as Dean of Harvard Law School. Kagan kept military recruiters off campus during her tenure because of the Pentagon’s “don’t ask – don’t tell” policy, but Sessions points out that Kagan served in the administration that created the policy and never went on record opposing it at the time. It’s a rather telling piece of political hypocrisy, and Sessions wonders why Kagan didn’t fight the policy when she had the power to do so, rather than hypocritically blaming it on the military later.
Furthermore, Sessions argues, her hypocrisy doesn’t end there. While Kagan successfully barred military recruiters from the Harvard Law campus because of their support of a “moral injustice of the first order,” Kagan sat by silently while Harvard accepted a $20 million gift from Saudi Arabia. Considering how the Saudis treat gays — with execution, flogging, or both — where was Kagan’s moral compass at that time? Given her lack of judicial experience and the Obama administration’s reliance on her tenure at Harvard to push her through to confirmation, Sessions wants answers to these questions.
The full speech and transcript follow:
“Mr. President, I’d like to speak briefly on President Obama’s nomination of Elena Kagan to the Supreme Court. The more we examine her record, there are concerns that her legal judgments might be infected by her very liberal political views. We see strong evidence of that in Ms. Kagan’s memos as a clerk on the Supreme Court, and in her work as domestic policy advisor in the White House for President Clinton.
We also see strong evidence of this in her time as dean of Harvard Law School. Perhaps to some in the elite, progressive circles of academia, it is acceptable to discriminate against the patriots who fight and die for our freedoms. But the vast majority of Americans know that such behavior is wrong, it has arrogance about it, and really it is not ethical.
When Ms. Kagan became Dean in 2003 she inherited a policy of full, equal access for the military. But she reversed that policy in clear, open defiance of federal law. She kicked the military out of the campus recruitment office as our troops at that very moment risked their lives in two wars overseas.
Some have recently attempted to defend Ms. Kagan’s conduct by arguing that she deigned to speak with student veterans, to discuss whether they would coordinate a sort of second-class system for the recruiters who had been coming on campus. This all happened after she had defied the law and shut down those official channels of the campus recruiting office. But the Harvard Student Veterans Association plainly expressed to Ms. Kagan, in a letter to the entire law school, that they lacked the resources to take the place of the campus office now closed to the military. That letter reads in part:
“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 events.”
But Ms. Kagan was unmoved. Instead of welcoming the military recruiters on campus, she punished them and relegated them to second-class status. In fact, Dean Kagan’s public comments contributed to a hostile on-campus environment for both recruiters and student veterans. Ms. Kagan said she “abhorred” the military’s recruitment policy—blaming soldiers for the decisions of the president and lawmakers in Congress. She called it a “moral injustice of the first order,” and participated in a student protest opposing military recruiting. And, stunningly, she expressed sympathy for students and faculty for whom “the military’s presence on campus feels alienating.”
Those alienated by the military’s presence did not need sympathy, they needed a history lesson: they had the freedom to complain and protest from the safety of Harvard’s campus because of the blood and sacrifice of the men and women who wear the uniform. If you talk to student veterans who were on campus during 2004 and 2005, you will learn that many of them felt exploited. Here were people who had just returned from battle in Iraq, dodging enemy gunfire, and now they were supposed to quietly hustle military recruiters through a back door—and provide political cover for Ms. Kagan.
In a report for NPR, one student veteran who was there summed it up this way: “getting us to carry her water on military recruitment through the back door was a bridge too far. … I came to view her as a very smooth political person.” Ms. Kagan said her mistreatment of the military was justified by her view that Don’t Ask Don’t Tell was a “moral injustice of the first order.” But Don’t Ask Don’t Tell was created and implemented by President Clinton. Where was her outrage during the five years she served in the Clinton White House? Why would she blame the military? They didn’t pass the rule. It was Congress and the president. Instead of taking a stand in Washington, Ms. Kagan waited until she got to Harvard and stood in the way of devoted, hardworking military recruiters.
And now, information has come to light suggesting Ms. Kagan may have been even less morally principled in her approach than previously thought. Around the same time Ms. Kagan was campaigning to exclude military recruiters—citing what she saw as the evils of Don’t Ask Don’t Tell—Harvard University accepted $20 million from a member of the Saudi Royal family to establish a center for Islamic Studies in his honor. A recent Obama State Department report concerning Saudi Arabia and Islamic Shari’a law noted that:
“Under Shari’a as interpreted in [Saudi Arabia] sexual activity between two persons of the same gender is punishable by death or flogging.”
Ms. Kagan was perfectly willing to obstruct the U.S. military—which has liberated countless Muslims from the hate and tyranny of Saddam Hussein and the Taliban. But it seems she sat on the sidelines as Harvard created an Islamic Studies Center funded by—and dedicated to—foreign leaders presiding over a legal system that violates what would appear to be her position. She fought the ability of our own soldiers to access campus resources, but not those who spread the oppressive tenets of Islamic Shari’a law.
Perhaps her response was guided by campus politics. But Ms. Kagan lacks experience as a judge, as a lawyer, and as a scholar. Much of her career has been spent actively engaged in liberal politics—not legal practice. There are serious questions as to whether Ms. Kagan could now suddenly set aside the political agenda that has defined so much of her career. These are important issues, and Ms. Kagan will have an opportunity to present her side of the story. I suspect many Americans will be listening closely to her explanation.”