John McCain: I'm Voting Against Elena Kagan

1/24/10--Washington, DC--Senator John McCain (R-AZ), talks about the Supreme Court campaign ad ruling and the fate of the Healthcare Bill with CBS' Bob Schieffer on "Face The Nation" in Washington, DC January 24, 2010 Photo by Chris Usher
Chris Usher

Sen. John McCain has announced that he will vote no on confirming Supreme Court Nominee Elena Kagan, citing her handling of the military recruiting as dean of Harvard Law School.

Kagan "unmistakably discouraged Harvard students from considering a career in the military -- even while claiming to do otherwise -- by denying military recruiters the same access to Harvard students that was granted to white-shoe law firms," McCain wrote in an op-ed posted to the website of USA Today that will be published in the paper tomorrow.

He continues: "Kagan did so because she believed the military's 'don't ask, don't tell' policy to be 'a profound wrong -- a moral injustice of the first order.' While Kagan is entitled to her opinion, she was not entitled to ignore the law that requires universities to allow military recruiters on campus under terms of equal access with all other recruiters."

It's not clear that Kagan did actually "ignore the law," as Mark Murray points out - she instructed Harvard's Career Services office to bar military recruiters after the law in question, the Solomon Amendment, was deemed unconstitutional. Kagan, who said "don't ask, don't tell" conflicted with Harvard's non-discrimination policy, changed course after the law was reinstated.

McCain writes that Kagan "tried to justify her actions" by asking the school's Veterans Association to host military recruiters. But he said that wasn't enough. The senator suggests that the nominee "interpreted her duties as dean at Harvard to be consistent with what she wished the law to be, not with the law as written."

"I have previously stated that I do not believe judges should stray beyond their constitutional role and act as if they have greater insight than representatives who are elected by the people," McCain writes. "Given the choice to uphold a 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, it appears unlikely that she would exercise judicial restraint."

McCain, who is facing a tough primary challenge from the right, also opposed President Obama's first Supreme Court nominee, Sonia Sotomayor, though he backed President Clinton's two Supreme Court picks.

The former GOP presidential nominee, who is not a member of the Senate Judiciary Committee, joins Sens. Bob Bennett, Jim DeMint, Orrin Hatch, Jim Inhofe, Mitch McConnell and Lisa Murkowski in publicly announcing opposition to Kagan, as USA Today notes. Still, with Democrats maintaining a strong majority in the Senate and a Republican filibuster looking unlikely, Kagan is expected to be confirmed easily. Special Report: Elena Kagan
Sessions: Kagan "Failed Her Own Test"