The current Solicitor General and former dean of the Harvard University School of Law tried to stay neutral but defended her past statements and actions with regard to Don't Ask, Don't Tell and the Army ROTC's presence on the Harvard campus.
In response to a question from Jeff Sessions, the ranking Republican on the Senate Judiciary Commission about her past statements against DADT, “I have repeatedly said that the ‘don’t ask, don’t tell’ policy is unwise and unjust — I believed it then and I believe it now.”
The Advocate's Kerry Elveld reports:
Kagan stated several times that she was trying to balance two competing interests: compliance with the Solomon Amendment, a 1996 law that empowers the secretary of Defense to deny federal funding to colleges and universities that prohibit or prevent ROTC or military recruitment on campus; and an adherence to the school’s antidiscrimination policy, which said that no employer could use the office of career services if that employer would not sign a nondiscrimination pledge. The military could not sign the pledge based on its discriminatory DADT policy.
Although military recruiters were not allowed to use the law school’s office of career services during part of Kagan’s deanship, they were allowed to recruit on campus through the office of veteran services. But much of the disagreement between Kagan and Sessions centered on the events following a 2004 decision by the U.S. court of appeals for the third circuit that found the Solomon Amendment to be unconstitutional — a ruling that was subsequently overturned by a unanimous Supreme Court decision in 2006.
Sessions alleged that Kagan had purposely continued to block recruiter access to the school’s office of career services even after the Department of Defense explicitly requested full access and said it would appeal the 2004 decision.
But Kagan contended that she believed the school’s policy was “in compliance” with the Solomon Amendment and “for many, many years, the Department of Defense had agreed with us.”
“When DOD came to us and said it thought that that was insufficient,” Kagan said, “we went through a discussion over a couple of months and we made the decision to do exactly what DOD wanted.”