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Public Statements

Executive Session

Floor Speech

Location: Washington, DC


Mr. McCAIN. Mr. President, I rise to discuss Solicitor General Elena Kagan's nomination to the U.S. Supreme Court. During my time in Congress, I have had the honor to vote in support for the nominations of several Associate Justices put forward by both Democratic and Republican Presidents. Presidents are due a great amount of deference in the evaluation of his or her nominees to be members of the highest Court in the land, and elections, I understand very well, do have consequences. However, in this case I am not able to provide such deference to President Obama's nominee who has shown such a public unwillingness to follow the law.

When Ms. Kagan was dean of the Harvard Law School, she unmistakably discouraged Harvard students from considering a career in the military by denying military recruiters the same access to Harvard students that was granted to the Nation's top law firms. She barred military recruiters because she believed the Federal Government's don't ask, don't tell policy to be ``a profound wrong--a moral injustice of the first order.''

Ms. Kagan is entitled to her opinion of whether the policy is wrong. She is not entitled to ignore the law that required universities to allow military recruiters on campus or forgo Federal funds.

The chief of recruiting for the Air Force Judge Advocate General Corps was repeatedly blocked from participating in Harvard's spring 2005 recruiting season and wrote to Pentagon leaders: ``Harvard is playing games and won't give us an on-campus interviewing date.''

The Army's report from the 2005 recruiting season was even more blunt, stating: ``The Army was stonewalled at Harvard.''

Ms. Kagan sought a compromise by asking the law school's Veterans Association to host military recruiters, but the association responded: ``Given our tiny membership, meager budget, and lack of any office space, we possess neither the time nor the resources ..... of duplicating the excellent assistance provided by the Harvard Law School Office of Career Services.''

The association was right and an Air Force Judge Advocate General recruiter wrote Pentagon officials, and I quote from his letter: ``Without the support of the Career Services Office, we are relegated to wandering the halls in hopes that someone will stop and talk to us.''

That was a remarkable statement from a military recruiter. According to the Solomon Amendment, any institution that barred recruiters from their campus would therefore not be eligible for Federal funds. Ms. Kagan and Harvard University, in general, and the law school in particular, were, according to this Air Force officer, doing that. ``Without the support of the Career Services Office we are relegated to wandering the halls in hopes that someone will stop and talk to us.''

The university that portrays itself as the premier institution in America relegated our officers and recruiters for honorable service in the military of the United States of America to ``wandering the halls in hopes that someone will stop and talk to us.''

Ms. Kagan had a direct role in seeing that military recruiters were ``relegated to wandering the halls in hopes that someone will stop and talk'' to them. Ms. Kagan's claim that she was bound by Harvard's antidiscrimination policy is belied by the fact that her predecessor allowed military recruiters full official access, a policy Ms. Kagan changed.

While Ms. Kagan barred military recruiters access to the school, Harvard continued to receive millions of dollars in Federal aid. I will not go into my opinion of Harvard University's behavior throughout this whole issue of whether recruiters should be allowed on their campus. There are members of the ROTC who are still condemned to go to a neighboring institution for their training. But we are speaking of Ms. Kagan.

During her confirmation hearing last month, Ms. Kagan asserted that Harvard law school was ``never out of compliance with the law ..... in fact, the veterans' association did a fabulous job of letting all our students know that the military recruiters were going to be at Harvard. .....''

She went on to state: ``The military at all times during my deanship had full and good access.''

Absolutely false statement. Facts show that these statements are false, and recruitment for our Nation's military suffered due to her actions.

Well, I strongly disagree with Ms. Kagan. I take no issue in terms of her nomination with her opposition to President Clinton's don't ask, don't tell policy. She is free to have her own ownership. Ms. Kagan was not free to ignore the Solomon Amendment's requirement to provide military recruiters equal access because she opposed don't ask, don't tell. In short, she interpreted her duties as dean of Harvard to be consistent with what she wished the law to be, not with what the law was as written.

In the end, Ms. Kagan's interpretation of the Solomon Amendment was soundly rejected by the U.S. Supreme Court. By changing the policy she inherited and restricting military recruiter access when the prevailing law was to the contrary, Ms. Kagan stepped beyond public advocacy in opposition to a policy and into the realm of usurping the prerogative of the Congress and the President to make law and the courts to interpret it. It is precisely for this reason that I cannot support her nomination.

I have previously stated that I do not believe judges should stray beyond their constitutional role and act as if they have greater insight into the meaning of the broad principles of our Constitution than representatives who are elected by the people. These activist judges assume the judiciary is a superlegislature of moral philosophers. It demonstrates a lack of respect for the popular will that is fundamental to our republican system of government.

Regardless of one's success in academic and government service, an individual who does not appreciate the commonsense limitations on judicial power in our democratic system of government ultimately lacks a key qualification for a lifetime appointment to the bench. For Ms. Kagan, given the choice to uphold the law that was unpopular with her peers and students or interpret the law to achieve her own political objectives, she chose the latter.

I cannot support her nomination to the Supreme Court, where, based on her prior actions, she is unlikely to exercise judicial restraint and respect the roles of the coequal branches of government.

I am sure my colleague from Alabama, who has done so much work on this issue, probably recalls that during her confirmation process, Peter Hegseth, who is the executive director of Vets for Freedom, a veteran of the Iraq war, and currently an infantry captain in the Massachusetts Army National Guard, testified: ``I have serious concern about Elena Kagan's actions toward the military and her willingness to myopically focus on preventing the military from having institutional and equal access to top-notch recruits at a time of war.''

He went on to say: ``I find her actions toward military recruiters at Harvard unbecoming a civic leader and unbefitting a nominee to the U.S. Supreme Court.''

Another veteran, Flagg Youngblood, ROTC graduate from Princeton, testified at the same hearing: To defend the barriers Dean Kagan erected by saying military recruiting did not suffer misses the point. Just imagine how many more among Harvard Law's 1,900 young adults would have answered the Defense Department's call.

Lastly, retired Air Force COL Thomas Moe, a veteran with 33 years of service to our Nation, testified: ``Ms. Kagan knowingly defied a particular law and treated military recruiters as second-class citizens. How can our warriors look at such people when they are poised at the tip of the sword, ready to sacrifice everything for their country, while a cloistered clique in ivory towers eats away at their institution for the sake of narrow ideological interests.''

I know the Senator from Alabama was present at these hearings. I ask unanimous consent to engage in a short colloquy with the Senator from Alabama.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. McCAIN. Mr. President, Ms. Kagan stated that she--I understand her words were ``reveres the military;'' is that correct?

Mr. SESSIONS. She did use that word.

Mr. McCAIN. Is it a bit contradictory that you would want to treat the military as ``separate but equal,'' condemning them--the Air Force Judge Advocate General military person said they were condemned to wandering the halls of Harvard Law School in hopes that someone would stop and talk to them. Is that, I wonder, in keeping with the actions of someone who claims they revere the military?

Mr. SESSIONS. I certainly do not believe it is. As the Senator has noted repeatedly--and we serve on the Armed Services Committee together--this was not a military policy; this was a law passed by this Congress and signed by President Clinton, with whom she worked for 5 years. But she was punishing these young officers, many of them, demeaning them, making them be treated in a second-class way because she did not agree with that policy.

Mr. McCAIN. May I ask the Senator, is there any doubt in your mind, given the testimony of other witnesses, including letters such as from the Air Force Judge Advocate General recruiters and others, that Ms. Kagan--then Dean Kagan--did take these actions restricting the access of recruiters to the Harvard Law School?

Mr. SESSIONS. There is absolutely no doubt about it. She openly sent an e-mail to all students and said she considered this policy that Congress adopted a moral injustice of the first order.

On one occasion a military recruiter was apparently working in one building, and she spoke to a protest rally outside the next-door building, creating a climate that was certainly hostile to the good efforts of that military officer.

Mr. McCAIN. But at the same time, then-Dean Kagan never asked to return the Federal funds that were flowing into the university?

Mr. SESSIONS. No. In fact, it took the president of Harvard, Larry Summers--now President Obama's chief financial economic adviser; he was then president of Harvard--he had to reverse her decision when he was faced with the loss of Federal funds. The entire recruiting season, however, was lost before the military realized they were systematically being blocked. And they protested to the university, and finally she was overruled by the president.

Mr. McCAIN. So then-Dean Kagan's actions, which she believed--and I respect her views that it was a moral imperative, and basically she chose what she viewed as a moral imperative--i.e., her opposition to the don't ask, don't tell law--as overriding compliance with the law, which then brings into question her qualifications and what her future actions will be as a member of the U.S. Supreme Court.

Mr. SESSIONS. Absolutely. I think that is the essence of what happened. She eventually acknowledged that at no time was the Solomon Amendment not in force at Harvard when she was there.

I know Senator McCain remembers that we passed four versions of the Solomon Amendment because every time one was passed, these law schools or others figured out a way to get around it. We finally wrote one they couldn't get around. This was systematic obstruction by universities that I think does not speak well of them.

She also filed a brief with the Supreme Court attacking the law, and, as the Senator noted earlier, the Supreme Court rejected that brief 8 to 0.

Mr. McCAIN. So we are not discussing the merits or demerits of a law that was passed by Congress; we are discussing then-Dean Kagan's actions in opposition to this law which were absolutely in contradiction to the law.

Mr. SESSIONS. Absolutely. Harvard had agreed to follow this law. Her predecessor as dean, Dean Clark, had agreed to do so. She seized upon an opportunity, without legal authority, to cease to comply with that law, denied the military full access to the campus as the law required, and eventually had to be reversed by the president of Harvard.

Mr. McCAIN. Could I finally ask my colleague from Alabama, do you ever think the day will come when we have a nominee for the U.S. Supreme Court who didn't go to Harvard Law School?

Maybe that might be healthy for America.

Mr. SESSIONS. Well, you know, I think it might. If they have good judgment and are good people, I am not so worried where they come from. But when you have five people on the Supreme Court--and we will have that if she is confirmed--all from one of the boroughs of New York and most of them from Harvard or Yale, then I think it does raise questions about it. Maybe someone from Arizona could handle that job.

Mr. McCAIN. Or perhaps Alabama.

Mr. SESSIONS. Perhaps so.

With regard to those young officers who were on the Harvard campus, my understanding of the military--and the Senator's experience is far greater than mine--is that many of those officers may well have just returned from Iraq or Afghanistan. You don't just serve all your career as a recruiter. I mean, they may have been combat officers or helicopter pilots or convoy leaders putting their lives at risk. I wonder how the Senator thinks they felt when they faced this kind of discrimination.

Mr. McCAIN. Frankly, I would say to my colleague from Alabama, obviously it is not related to Dean Kagan, but treatment at these elite institutions in the Ivy League, going all the way back to the Vietnam war--you know, they are entitled to their views and their opinions and their opposition, but to treat people who were designated by the President of the United States to be recruiters, to motivate other young men and women to join what I believe is a very honorable profession, most honorable, to put impediments in their way and intentionally block their ability to do so is something that I guess they will have to answer for in the future.

I thank my colleague from Alabama for his leadership on this issue on the Judiciary Committee. He has worked tirelessly, night and day, on this issue for a long period of time now. I thank the Senator from Alabama for his outstanding work and leadership. I appreciate it. I know Americans do too.

Mr. SESSIONS. I thank the Senator. I would note that one of the arguments that has been made--and my time is about up--has been that: Well, nothing was really done at Harvard. We asked a veterans group, a veterans organization to take care of all of these things we were refusing to allow the military to have through the Career Services Office.

And this is what the veterans group said at the time. They sent an e-mail to everybody on campus because it offended them that they were being asked to do a job that should have been done through the Career Services Office. They sent this e-mail:

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. ..... [Our effort] falls short of duplicating the excellent assistance provided by the Office of Career Services.

So this argument has been repeatedly made: Don't worry about it; the veterans groups were taking care of all of this. It is bogus. It is incorrect. And she repeated that. I am not surprised to get that kind of statement from the White House spin doctors, but a nominee under oath----

The PRESIDING OFFICER. The Republican time has expired.

Mr. SESSIONS. Should not have made the statement she did in that regard.

I yield the floor.


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