Sessions Questions Kagan's Commitment to Defending DADT as Solicitor General

AP

On the third day of Supreme Court nominee Elena Kagan's confirmation hearings, Sen. Jeff Sessions (Ala.), the top Republican on the Senate Judiciary Committee, questioned whether Kagan upheld her responsibility as the White House's top lawyer to defend the military's "don't ask, don't tell" law -- a law Kagan has clearly said she personally opposes.

Republicans this week have already questioned Kagan about her opposition to "don't ask, don't tell," which was most evident during her tenure as dean of Harvard Law School. As dean, Kagan limited military recruiting on campus because she said the "don't ask, don't tell policy," which prohibits openly gay men and women from serving in the military, violated the school's anti-discrimination policy.

Sessions today told Kagan that he thought her explanations of her actions at Harvard have been "too consistent" with White House spin. He said "ironically, and almost amazingly," it was later Kagan's job as the Obama administration's solicitor general to uphold "don't ask, don't tell" in court.

The senator questioned Kagan's actions as solicitor general in two particular court challenges to "don't ask, don't tell." In one case, the Ninth Circuit Court did not uphold "don't ask, don't tell." The Ninth Circuit Court, Sessions said, "invented a new standard of review," requiring individual trials for each case against the law. Sessions said it would be "difficult, if not impossible," to uphold the law under that standard.

However, Sessions pointed out, Kagan as solicitor general chose not to challenge the ruling right away.

Upholding "don't ask, don't tell," Sessions told Kagan, "was your responsibility and it was an oath you took."

"I'd just like to hear you state with as much specificity as you can why you felt it necessary not to appeal either of these cases," he said.

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Kagan responded that the case is not yet closed.

"I agree with you the Ninth Circuit decision undercuts that statute," she added.

As solicitor general, Kagan said she sought "to vigorously defend all statutes, including the statute that emobides the 'don't ask, don't tell' policy." She said she engaged in "very serious discussions" with the Department of Defense on how to proceed in that case.

Kagan explained that the case is in remand in district court and may still be dismissed. She said it was decided that it would be preferable for the government to wait for that decision before appealing to the Supreme Court.

"We thought it would be better to go to the Supreme Court with a fuller record about the particular party involved," she said. The remand, Kagan said, would allow the government to show how the Ninth Circuit's requirement for individual review "really would disrupt military operations."

Kagan told Sessions that when the decision was made to wait for the remand to be completed, the administration wrote a letter to the Judiciary Committee explaining their decision.

More on the Kagan Hearings:

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Kagan Employs Humor and the Artful Dodge
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Kagan Supports Cameras in Supreme Court

[digrawg]

I look forward to the day when sexual deviants are allowed to adopt children and serve openly in the military. I can't believe that anyone would condemn or oppose this! I am in the Navy and I want our homosexuals to be free to tell us about their sexual deviation and I want them to be loud and proud! I want to be able to look around me and 24/7 on a 6 month deployment and take comfort in knowing that the people who I'm working closely with and sharing living quarters with are sexual deviants. I want them to be able to walk around on the boat all day long proclaiming their deviation for me and all of my fellow honorable servicemembers to hear, including the Captain, the Commodore and all of the marines on the boat! I will not rest until sexual deviants are practicing their deviation openly, loud and proud, in full military uniform. Dear God please get them into the service. And to those of you that are in the service having to conceal your sexual deviation; thank you for your service! We're gonna make sure you can be open, it might take some more work, but we'll make it happen!!! God bless you guys

[user000049586849302948602]

I feel like Sessions should cross his eyes and wiggle his ears when he talks to create the full effect.

[MerrellObrian]

I'm extremely pleased with the answers Elena Kagan is giving. Look at the theatre being created by the Right: It's now "bad" to be an activist judge after they have elected two of their very own activist judges to the Supreme Court. How dare those liberals to do the exact same thing! So what if she is? I HOPE she is. That's the way fair and balanced works. Never before 2004 was it American, fair and right to vote on Civil Rights. Would blacks have ANY rights whatsoever if the courts had not GIVEN them the rights? Then why, why is it fair for gays to have their rights voted on? Yes, she's a liberal and damn! Those of us with equality on the brain are damn glad!!

[smellyecoli2]

Is it not a fact that Kagan liken the NRA to the KKK.Is she against the law abiding Americans arming themselves for protection from the murderous,thieving,raping scum??Is she not a black racist??? READ HER WRITTEN RECORDS !!!!IS SHE NOT ANOTHER OBAMA ""PREACHER"" ???