Moving into the second round of questions, Senator Sessions focuses again on legal controversies relating to the Don’t Ask Don’t Tell policy.
He begins by saying that he was disappointed with Kagan’s testimony yesterday regarding military recruiting at Harvard Law Schoo.Asserting that Kagan’s testimony was “consistent with an inaccurate spin” put forth by the White House and “did not set forth what you did,” he said he was “disappointed.”
Sessions then went on to talk about two cases involving challenges to the DADT policy in which Kagan participated as Solicitor General. One was decided by the federal court of appeals in Boston, and upheld the law. The other was decided by the federal court of appeals in California, and it imposed significant procedural requirements before the government could discharge a service member under the DADT law. Sessions wants to know why Kagan didn’t seek Supreme Court review of the California court’s decision.
As Kagan explained, this was a litigation judgment of the type made all the time by the Solicitor General’s office. The case was “interlocutory” (legalspeak for not yet final–it had been sent back to the trial court for a hearing under the standard set by the court of appeals), and the Supreme Court is reluctant to take cases in that posture. And, in consultation with the Department of Defense, she concluded that the government would be in a stronger posture in the Supreme Court if those lower court proceedings had occurred and it could demonstrate the heavy burden imposed by the court of appeals. (The Solicitor General’s office makes this type of judgment all the time in deciding how to posture a case to maximize the government’s chances of prevailing in the Supreme Court.)
When Senator Sessions’ time was up, Chairman Leahy introduced and read from a letter from a Harvard Law School graduate currently serving in Iraq that described her support for members of the Armed Services attending Harvard and explained that recruitment levels actually increased during her deanship.