Executive Session

Floor Speech

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Mr. CORNYN. Mr. President, I want to address the nomination of Solicitor General Kagan to serve on the U.S. Supreme Court. Earlier this week, I discussed my opposition to the nomination, but at that time I didn't go into any depth about my concerns with regard to her participation in the military recruiting policy that banned the U.S. military from the Office of Career Services at Harvard Law School.

While this incident has been discussed a lot, I think it is very important to establish for the record exactly what happened. I believe a due respect for the men and women of our military and the gravity of this debate demand a full review of the facts behind what Elena Kagan did as dean of the Harvard Law School to exclude and stigmatize the U.S. military.

Harvard Law School adopted an antidiscrimination policy in 1979. This policy states that any employer that wished to use the Office of Career Services at the law school had to sign a statement affirming that it does not discriminate on various bases, including sexual orientation. The military--not just because of its policy but because of the policy of the Congress and the law that we passed--could not sign this statement because of the don't ask, don't tell policy adopted during the Clinton administration.

In 1993, when a Democratic Congress and the Clinton administration changed the military's outright ban on gays in the military to adopt this don't ask, don't tell policy, Harvard took the position that the military was still not in compliance with its antidiscrimination policy. As a result of Harvard's policy, from 1979 through 2002, the U.S. military was barred from recruiting individuals at the Harvard Law School's Office of Career Services, where everyone else who was recruiting on campus was allowed to conduct interviews and recruit potential candidates.

While this ban on the services of the Office of Career Services was in effect, the Harvard Law School Veterans Association essentially took the place of the Office of Career Services and established an off-campus interview forum for law students interested in serving their country in the U.S. military. So because they were banned from the Office of Career Services, the military had to look for an alternative venue or forum provided by the Harvard Law School Veterans Association in order to conduct those interviews.

But then something very important happened. In 1995, Congress enacted another law, popularly known as the Solomon Amendment. The Solomon Amendment said you cannot receive Federal funds--if you are an educational institution--if you, in effect, prohibit military recruiting on your campus. In other words, they could have continued their policy of discrimination against the military, but they would have been denied Federal funds under the plain wording of the Solomon Amendment passed in 1995.

The Secretary of Defense, under the Solomon Amendment, has to make a finding that the school is not offering access to military recruiters that is ``equal in quality and scope to the access that the school provides other employers.'' That was the 1995 law. In 2002, the Secretary of Defense of the United States found that Harvard's exclusion of military recruiters from the Office of Career Services was not ``equal access.''

In response to this Federal law and the finding by the Secretary of Defense, Ms. Kagan's predecessor, Robert Clark, essentially capitulated and gave the military access to the Office of Career Services in 2002. So Dean Robert Clark, Dean Kagan's predecessor, rather than be denied Federal funds to Harvard by violating the Solomon Amendment and denying access to military recruiters to the Office of Career Services, decided in 2002 to change Harvard's policy. Thus, when Ms. Kagan became dean of the law school in the spring of 2003, the military had full access to the Office of Career Services to recruit interested candidates for military service.

For a while, Dean Kagan maintained the military's access to the Office of Career Services in compliance with the Solomon Amendment. But it is clear that Dean Kagan did not like that because she voiced her political opposition to the don't ask, don't tell policy--in other words, the law enacted by Congress and to which the Department of Defense was accountable for enforcing--in an e-mail she sent to all of Harvard's law students saying that she ``abhorred'' the ``don't ask, don't tell policy'' and she considered it ``a moral injustice of the first order.''

In January 2004, Dean Kagan joined 53 other members of the Harvard law faculty in filing a friend of the court brief supporting a challenge to the Solomon Amendment in the Third Circuit Court of Appeals. So even though she maintained access for a while, inherited that policy under her predecessor, in 2004, when a lawsuit was filed to challenge the Solomon Amendment, Dean Kagan and other Harvard Law School faculty joined in a friend of the court brief to try to strike down the Solomon Amendment.

In November of 2004, a split panel on the Third Circuit Court of Appeals actually held that the Solomon Amendment was reasonably likely to be unconstitutional and sent the case back to the district court with instructions to issue an injunction halting the Solomon Amendment's enforcement.

Now, this is very important because the Third Circuit is one of our circuit courts of appeal in the United States, but it is not the U.S. Supreme Court. By that I mean when it makes a decision, its decision only applies to the territory or that part of the United States that is within the Third Circuit. That is important because Harvard is not in the Third Circuit. Harvard is in the First Circuit. So in effect, the Third Circuit panel's decision had no legal effect on Harvard Law School.

Nevertheless, the very next day, after the Third Circuit issued its decision, Dean Kagan changed the Harvard Law School policy to once again bar the military from using the services of the Office of Career Services. In other words, she was not compelled to do so by law but exercising her discretion as dean, she chose to reinstate this policy of barring military recruiters from the Office of Career Services.

Then, in January of 2005, the Third Circuit issued an order staying its enforcement pending a decision by the U.S. Supreme Court. After this, of course, the Third Circuit ruling did not even have any effect even in the Third Circuit, much less in the jurisdiction in the circuit with jurisdiction over Harvard. But even after the order was stayed, Ms. Kagan continued the policy of barring military recruiters from the Office of Career Services.

While her policy barring military recruiters from the Office of Career Services was in effect, Dean Kagan approached the Harvard Law School Veterans Association and asked them to serve as an alternate channel for military recruiting at Harvard Law School. In 2005, the law school veterans declined, writing:

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.

In short, the law school veterans told Dean Kagan that the separate access she wanted them to offer the military would not be equal because they didn't have the ability to match the resources of the Office of Career Services.

In May 2005, the Supreme Court of the United States then said they were going to hear an appeal of the Third Circuit's decision, and they granted the writ of certiorari to the Defense Department's appeal of that case to review their finding on the Solomon Amendment. Over the summer of 2005, the Defense Department notified Dean Kagan that it would rescind Harvard's funding--in other words, it would deny Federal funding to Harvard pursuant to the Solomon Amendment--if she continued to deny the military access to the Office of Career Services.

Faced with this ultimatum, on September 20, 2005, Dean Kagan finally ended her 10-month unlawful denial of access and announced that pending the Supreme Court's decision she would lift the ban and give the military access to the Office of Career Services. But in the meantime, she filed another friend of the court brief, this time in the Supreme Court of the United States, arguing the Solomon Amendment should not apply to her actions barring the military from the Harvard Law School's Office of Career Services.

Ultimately, the Supreme Court unanimously rejected Dean Kagan's position and unanimously upheld the Solomon Amendment.

To recap: Dean Kagan's ban on military recruiters lasted for 10 months--from November of 2004 through September of 2005. During that entire span of time, the Department of Defense position was always--was always--that the ban violated the congressionally passed Solomon Amendment. Never in that span of time did the Supreme Court, the First Circuit, or any other court with jurisdiction over Harvard adopt Dean Kagan's view regarding the scope or enforceability of the Solomon Amendment.

In that span of time, only a split panel of the Third Circuit held that the Solomon Amendment was unenforceable, and for all but 2 months of that time, the Third Circuit's order was stayed.

Despite all of this, Dean Kagan persisted in barring military recruiters from the Office of Career Services and insisted that the military could obtain separate but equal access to Harvard Law School through alternate routes. Dean Kagan held that the Supreme Court's position ran afoul of the Solomon Amendment, the findings of the Secretary of Defense, and ultimately the legal judgment of the entire Supreme Court. I believe these are the undisputed facts of the case.

So why do Ms. Kagan's actions matter? I would argue that they matter for two reasons. First is the message her actions sent about her lack of respect for the U.S. military at Harvard Law School during her deanship. Ms. Kagan claims she holds the military in the highest respect, but I have to ask you, this notion that you are going to provide separate but equal access to interviewing services is not one that shows respect. It is one that provides an unnecessary and really reprehensible stigma on the U.S. military, which had no control over a policy passed by Congress under the Solomon Amendment.

Of course, she did this at a time when hundreds of thousands of young men and women deployed to Iraq and Afghanistan were wearing the uniform of their country to protect their fellow citizens and the rule of law. Dean Kagan's actions in taking every step legally possible to relegate the military to what she herself believed was separate but equal status placed an unmistakable stigma on the military during a time of war.

I believe her decision to stigmatize the military is reason enough to oppose her nomination to a lifetime seat on the U.S. Supreme Court, but her actions as dean are troubling for another reason as well. I believe her actions as dean indicate strong evidence that, as a Justice, someone sitting in judgment on the U.S. Supreme Court, she would tend to advance her political preferences rather than take a traditional approach of a judge in following the law.

Many of our colleagues have pointed out correctly that Ms. Kagan has never been a judge. While that is not a requirement to serve on the Supreme Court, this lack of judicial experience makes it difficult to tell whether Ms. Kagan would adopt a judicial activist philosophy if she takes a seat on the Court. Because she has never held the job of a judge--we don't have any record to judge her by--we must look to the jobs she has held and the actions she has taken to see how she is likely to perform her job as a member of the U.S. Supreme Court.

In the 10 months during which she banned the U.S. military from the Harvard Law School campus, I believe Dean Kagan showed a willingness to
bend the law and facts to advance her own political goals of protesting the don't ask, don't tell policy and, as I said, stigmatizing the military in the process. Despite the lack of any binding authority, she adopted an interpretation of the Solomon Amendment so tenuous that it could not garner the vote of a single Justice on the U.S. Supreme Court, and she did so for the express purpose of advancing her objections to a policy she said she abhorred.

Bending the law and the facts to reach a preferred result is exactly what judicial activists do, and there is a pattern in Ms. Kagan's legal career of bending the law and facts to advance her preferred policy results. So while Ms. Kagan has never been a judge, she has established a disturbing pattern of doing what judicial activists do. Ms. Kagan's actions in her previous jobs showed she is very likely not to embrace the role of a judge who decides cases based on the Constitution as written and the law as passed by Congress that she is responsible for enforcing if they are, in fact, constitutional but, rather, she gives every indication of someone who believes it is within her role and prerogative as a Justice to basically make the law rather than to enforce the law as written. No Member of this Chamber should be surprised if, for the rest of her life as a Supreme Court Justice, Ms. Kagan does not merely follow the law as written but, rather, bends the law to advance her progressive political agenda.

Our Constitution is too precious and the Supreme Court is too powerful for us to accept without question a President's nominee to the Supreme Court. The Framers of the Constitution recognized the importance of this appointment and the power given to a Supreme Court Justice, who serves for life without any political accountability to the electorate. That is why they gave us the responsibility to give our advice and consent.

The nomination and confirmation of a Supreme Court Justice is really a two-step process. First, the President makes his nomination. The President can nominate anyone the President wants who meets the qualifications of the Constitution. But then it is our responsibility to exercise our constitutional duty to provide advice and consent.

I believe Ms. Kagan has failed to embrace the traditional view of judging that I believe all judges must adhere to at the risk of, rather, them becoming a lawmaker, which is incompatible with the role of a Justice. I believe a judge who assumes a role of being a policymaker or a lawmaker is, in essence, a lawbreaker.

Indeed, Ms. Kagan's career up to this point shows a willingness to bend the law and the facts to advance her own beliefs, and I fear this trend will continue in an activist tenure on the Supreme Court. For these reasons, I oppose her nomination and will vote no.

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