But Kagan didn't roll over. She pushed back, saying she "revered the military" and that military recruiting did not go down on campus when she was dean. She said she opposed that policy then, and she opposes it today.
"I always tried to make sure the military had excellent access to our students," Kagan said.
At issue was a Harvard policy that prohibits employers who recruit on campus from discriminating in hiring based on, among other things, sexual orientation. Since that policy conflicted with "Don't Ask/Don't Tell," the military only got limited access to recruiting on Harvard's campus, as well as other campuses with the same policy.
In 1994, Congress passed the Solomon Amendment, which required schools that get federal funding to give military recruiters the same access as other employers.
Before Kagan became dean, Harvard amended its policy to allow military recruiters full access. But in 2004, when she was dean, a federal appeals court ruling struck down the Solomon Amendment.Continue »
They will defend her as an intellectual heavyweight who can build consensus. And the plan to make this hearing as much about the conservative Roberts Court, led by Chief Justice John Roberts, as Elena Kagan herself.
I'll be filing regular posts the next two days on the questions--and also on the Senators themselves. With the help of my researcher, Georgetown Law grad Tim Middleton, we're going to show you what some senators have said in past nominations, and how they're taking directly opposite positions now on issues like timing, document production, filibusters, etc.
We'll call this Reality Check.
Elena Kagan called the confirmation hearings a "charade" and a "farce" back in a 1995 law review article. But are the Senators helping fuel that narrative by making these hearings overtly political?
You may have seen a little bit of that on Sunday's Face the Nation, when Bob Schieffer and I pressed Sens. Patrick Leahy, the Committee's Chairman, and Jeff Sessions, the ranking Republican, for flipping their positions on the idea of a filibuster. Remember the Democrats efforts to filibuster Justice Samuel Alito after President Bush nominated him in 2005? And the Republican outcry?Continue »
Now, with opinion polls showing a weakened president and critical midterm elections looming -- and with a steady stream of documents from past jobs showing Kagan taking predictably liberal positions -- Republicans are poised for a fight.
Alabama Sen. Jeff Sessions, the ranking Republican on the Judiciary Committee, said on Sunday's "Face the Nation" that Kagan has "serious deficiencies," citing her lack of judicial experience and her positions on a number of social issues.
It was the signature prosecution of an executive whose company became synonymous with corporate fraud and greed: Jeffrey Skilling, Enron CEO, disgraced, convicted and sentenced to 24 years in jail.
Today, the Supreme Court said the government went too far, in a landmark 9-0 decision that could unravel Skilling's conviction and spring him from jail, and is already reverberating well beyond his case. The justices, vacating part of his conviction, sharply scaled back a key tool prosecutors use to go after corporate executives and public officials.
In an opinion by Justice Ruth Bader Ginsburg, the Court said the government simply stretched an anti-fraud law too far when it prosecuted Skilling and others.
Skilling's lawyer, Dan Petrocelli, called the unanimous decision "an exhilarating victory" and predicted a lower court will be forced to dismiss all charges against his client. Petrocelli said he will immediately petition the appeals court to release Skilling on bond.
"It means Jeff Skilling has been vindicated, and it means he will soon be a free and innocent man," Petrocelli said.
The justices also vacated the convictions of newspaper baron Conrad Black and former Alaska legislator Bruce Weyhrauch, both of whom also were convicted under the anti-fraud statute, which requires employees, executives and public officials provide "honest services."
Miguel Estrada, Black's lawyer, said he will be asking for Black to be released on bond, as well. Estrada said today's decision gutted the government's prosecution against Black, and would mean "returning Conrad Black to freedom and to his family."
"I am ecstatic," Estrada said. "The Court has at long last placed significant limits on this abusive statute that has been misused by overeager prosecutors."Continue »
In an unusually harsh ruling, a federal judge this afternoon blocked the Obama administration's six-month ban on deepwater off shore drilling, slamming the government for relying on "incomprehensible" studies and making "factually incorrect" arguments that abused "reason (and) common sense."
The hard-hitting, 22-page opinion by Federal District Court Judge Martin Feldman said the government failed to show that the BP oil spill meant all other rigs were also in danger of failing. As such, he said, the moratorium simply went too far.
Feldman also skewered the administration for mischaracterizing the views of engineering experts in order to justify the moratorium.
Press Secretary Robert Gibbs said the administration would appeal Feldman's ruling to the New Orleans-based federal appeals court.
Feldman called the Deepwater Horizon oil spill "an unprecedented, sad, ugly and inhuman disaster," but noted it was only the fourth such incident worldwide in 41 years, and the first ever in the Gulf of Mexico.
"If some drilling equipment parts are flawed, is it rational to say all are? Are some airplanes a danger because one was? All oil tankers like Exxon Valdez? All trains? All mines?" he wrote. "That sort of thinking seems heavy-handed and rather overbearing."
But he said the government, without justification, arbitrarily made the sweeping conclusion that "all Gulf deepwater drilling activities put us in a universal threat of irreparable harm."Continue »
While working as a domestic policy adviser to President Clinton, Elena Kagan emphatically agreed with a proposal to strongly defend affirmative action in the Supreme Court, while at the same time siding with a white teacher who was laid off instead of a black colleague solely because of her race.
"I think this is exactly the right position--as a legal matter, as a policy matter, and as a political matter," Kagan wrote by hand in the margin of a memo from then-Solicitor General Walter Dellinger about the controversial case, Piscataway Board of Education v. Taxman.
That posture -- strategic and careful -- is reflected throughout the 46,500 pages of documents contained in the Clinton Library and released on Friday. The documents represent about a third of the Kagan documents stored in the Library and cover her time as a deputy domestic policy adviser to President Clinton from 1997-1999.
In that role, she focused on issues ranging from tobacco negotiations and criminal law to abortion and gay rights, and she helped strategize on how best to further the President's policy agenda. Some of the documents, for example, reflect attempts to head off conservative efforts to pass a broad ban on so-called "partial-birth abortion" or to curtail abortions by minors without parental consent.Continue »
Sen. Jeff Sessions, the top Republican on the Senate Judiciary Committee, has responded this morning to our report last night on Elena Kagan's legal memos while she was a law clerk to Justice Thurgood Marshall.
Sessions called the documents "troubling" and said they "have to be carefully examined" as part of her confirmation hearings.
The remarkably candid documents provide some insight on her approach in a number of controversial social issues, from abortion to gun rights. Kagan has previously kept her views close, so liberals are certain to be encouraged by the memos, which indicate she may not be the moderate some had characterized her to be.
But as Sessions' comments reflect, Republicans now have ammunition to use in the fight against her--and appear ready to use it.Continue »
Elena Kagan has kept her cards so close to the vest that in the days after President Obama nominated her to the Supreme Court, some on the left worried she was too moderate to replace liberal Justice John Paul Stevens.
But in documents obtained by CBS News, Kagan--while working as a law clerk to the late Justice Thurgood Marshall - made her positions clear on some of the nation's most contentious social issues.
The documents, buried in Marshall's papers in the Library of Congress, show Kagan standing shoulder-to-shoulder with the liberal left, at a time when the Rehnquist Supreme Court was moving to the conservative right.
They also provide a remarkably candid picture of her opinions, including on the most controversial issue Supreme Court nominees ever confront: abortion.
Although Kagan's confirmation has thus far been an all but foregone conclusion, sources say these documents will give Republicans a few cards of their own to mount a strong fight against her.
The Supreme Court rejected on Tuesday a convicted killer's claim that police violated his Miranda rights, ruling that criminal suspects must clearly tell police they wish to remain silent to stop detectives from questioning them.
The 5-4 decision by Justice Anthony Kennedy said criminal suspects being questioned by officers must say they don't want to talk, instead of merely sitting there silently during an interrogation.
The case came about after a murder suspect, Van Chester Thompkins, was read his Miranda rights and then sat silently while detectives questioned him about a shooting. But near the end of a three-hour interrogation, which detectives said was basically a police monologue, Thompkins answered "yes," when asked if he prayed to God to forgive him for the shooting.
That statement was used against him at trial, and he was convicted of first-degree murder. He argued it should not have been used against him.Continue »
The White House enlisted the help former President Bill Clinton to offer Congressman Joe Sestak unpaid positions in the Executive Branch, but is flatly denying any of the overtures were improper or illegal.
In a legal memo today, White House Counsel Robert Bauer said the Democratic Party had a "legitimate interest in averting a divisive primary fight." He said it was believed that Sestak could continue to serve in the House while also taking on additional responsibilities in the Executive Branch.
Bauer said Chief of Staff Rahm Emanuel asked President Clinton to see if Sestak would be interested in serving on a presidential or other senior executive branch advisory board if he would stay in the House. Sestak declined, Bauer wrote, and remained committed to his Senate candidacy.
Bauer said allegations of improper White House conduct in the Sestak case "rest on factual errors and lack a basis in the law."
Some Republican lawmakers have questioned whether the offers to Sestak violated federal bribery or extortion statutes. Lawyers said the outreach may have amounted to a technical violation of the law--although they said it's also the kind of thing that happens all the time in Washington.
"It's not the kind of thing anybody likes to talk about, but it does go on," said former Reagan Justice Department official Michael Carvin. "But it does fall within the literal language of the statute."Continue »
A Department of Justice criminal investigation into the BP oil spill could expose the oil giant and other companies involved to a multitude of criminal charges and civil claims -- and expose them to damages that could exceed the $1.9 billion in fines, penalties and interest Exxon paid for the 1989 Valdez oil spill.
As with Exxon after the Valdez spill, BP could face prosecution for various environmental violations. After the Valdez spill, Exxon pleaded guilty in 1991 to violating the clean Water Act, the Refuse Act and the Migratory Bird Treaty Act, and agreed to pay $100 million to settle those criminal charges. It was the largest single environmental criminal recovery ever.
But for BP and the two other companies involved, the sanctions could be worse -- or at least that's what some members of Congress are suggesting. The three companies -- BP, Halliburton and Transocean -- also could face additional criminal charges if investigators determined they either lied in the permitting process or tried to cover up the gravity of the spill. If DOJ believes the companies lied to the government, they could face felony charges for making false statements, as well as possible obstruction of justice and conspiracy charges.
A group of prisoners being detained indefinitely at Bagram Air Field in Afghanistan cannot turn to U.S. courts to argue for their release, as detainees at Guantanamo Bay can, according to a ruling today by a federal appeals court panel in Washington.
The decision is significant because the detainees were trying to extend landmark Supreme Court decisions that allowed prisoners in Guantanamo to challenge their detention in U.S. courts. The Obama Administration had argued that Guantanamo Bay is different, and that U.S. courts do not have jurisdiction over foreign prisoners being detained in a war zone.
The 3-0 decision by conservative Judge David Sentelle was joined by two of the court's most liberal judges, David Tatel and Harry Edwards. They were troubled that allowing prisoners at Bagram to challenge their detention would open up the U.S. court system to any non-citizen being held in any U.S. military facility around the world.
That means that although the detainees will surely take this case to the Supreme Court, they will have a tough time convincing the justices to step in and hear it.
The Supreme Court ruled today that convicted sex offenders can be imprisoned even after their sentences expire if they are determined to be mentally ill and sexually dangerous.
In a decision by Justice Stephen Breyer, the Court upheld a federal law that allows dangerous sex offenders to remain in prison if the federal government proves by clear and convincing evidence they would have "serious difficulty in refraining from sexually violent conduct or child molestation" if released.
The case came about when the government sought to detain five men who had been convicted or charged with federal sex offenses. Three had pleaded guilty in federal court to possessing child pornography and a fourth had pleaded guilty to sexual abuse of a minor. The fifth man was charged with aggravated sexual abuse of a minor, but was found incompetent to stand trial.