During questioning by Judiciary chairman Patrick Leahy this morning, Elena Kagan defended the policy she upheld at Harvard of keeping military recruiters out of the office of career services.
"I'm confident that the military had access to our students and our students had access to the military throughout my entire deanship," Kagan said. She defended the anti-military policy:
"This was a balance for the law school because on the one hand we wanted to make abo sure that our students did have access to the military at all times, but we did have a very longstanding, going back to the 1970s, anti-discrimination policy, which said that no employer could use the office of career services if that employer would not sign a non-discrimination pledge, that applied to many categories--race, and gender and sexual orientation, and actually veteran status as well. And the military could not sign that pledge ... because of the Don't Ask/Don't Tell policy."
As many people have pointed out, the military's policy on gays in the military is based on a law passed by Congress and signed into law by President Bill Clinton, for whom Kagan worked. Why were other federal government officials not similarly discriminated against by Harvard?
Update: For more on Kagan and military recruiters at Harvard, see Bill Kristol here, here, and here.
Update: Ranking Republican Jeff Sessions followed up, asking Kagan: "Isn’t it a fact that the policy was not a military policy, but a law passed by the United States Congress? ... Why wouldn't you complain to Congress and not to the dutiful men and women who put their lives on the line for America every day?"
Kagan dodged the question and acted as if Sessions had asked her about the Solomon amendment rather than the "Don't Ask/Don't Tell" law. She replied:
"You're of course right that the Solomon amendment is law passed by Congress. We never suggested that any members of the military, you know, should be criticized in any way for this. Quite to the contrary, I tried to make clear in everything I did how much I honored everybody who was associated with the military on the harvard law school campus.
"All that I was trying to do was ensure that Harvard law school could also comply with its anti-discrimination policy, a policy that was meant to protect all the students of our campus, including the gay and lesbian students, who might very much want to serve in the military--who might very much want to do that most honorable type of service that a person can do for her country."