Elena Kagan Draws Fire For Stance on Military Recruiting

Supreme Court nominee Elena Kagan’s time at Harvard Law School drew intense scrutiny Tuesday during questioning by Senator Jeff Sessions, the Alabama Republican, who claimed that she had treated the military in a "second-class way" as dean.

Sessions, the ranking minority member on the committee, said that according to Defense Department documents the military had been obstructed in its recruiting activities at the Law School, which he said indicated a bias against the military.

Kagan said that she had worked to uphold the University’s anti-discrimination policy, while she also tried to ensure that the military would have access to Law School students.

"We were trying to make sure that military recruiters had full and complete access to our students, but we were also trying to protect our own antidiscrimination policy and to protect the students whom it is...supposed to protect, which in this case were our gay and lesbian students," Kagan said.

The sometimes-heated exchange with Sessions proved to be the day’s most terse line of questioning, but Kagan staunchly defended the Law School’s position and contended that recruiting had actually increased during her tenure.

In a May Washington Post opinion piece, Robert Merril, a 2008 Law School graduate and a Marine Corps captain, came to Kagan’s defense, arguing that as dean, she had supported veterans and made an effort to reach out to them. Kagan—not prone to emotional outpourings—said that when reading the piece was the only time during the confirmation process that she had cried.

Kagan claimed that she had partnered with veteran’s groups to ensure military access while it was barred from using the school’s official career services facilities.

On a day that saw the Supreme Court severely limit laws restricting gun rights, Kagan also said that several important second amendment cases limiting gun restrictions were “settled law” during questioning by Diane Feinstein, a California Democrat.

According to media reports, Sessions harshly criticized Kagan’s comments during remarks to reporters after the event, questioning the veracity of her description of events at the Law School.

But Kagan also showed a lighter side in Tuesday's hearings. Republican Senator Lindsey Graham asked her, in connection with the Christmas Day terrorist attack, where Kagan had spent her Christmas. Kagan responded that “like all Jews, I was probably at a Chinese restaurant."

She also quipped to Pennsylvania Democrat Arlen Specter that if the high court installed cameras she would have to get her hair done more often, a reply that left the senator rather lost for words.

Kagan is in the midst of a weeklong confirmation process that began on Monday. If confirmed, Kagan would be the youngest Justice on the Court, and the first Justice since William H. Rehnquist without prior judicial experience.

—Staff writer Elias J. Groll can be reached at egroll@fas.harvard.edu.