Alabama Sen. Jeff Sessions is going after her for decisions made at Harvard:

Republicans wasted little time Monday criticizing President Obama’s nominee for the Supreme Court, Elena Kagan, for trying to block military recruiters from Harvard Law School in protest of the Pentagon’s policies preventing gays and lesbians from serving openly.

At the time, Kagan was the dean of the Harvard Law School.

“I think she made a big mistake,” said Alabama Sen. Jeff Sessions, who as the top Republican on the Judiciary Committee will be influential in determining GOP support for Kagan. “Was that disqualifying? I don’t know, we’ll see. But it’s a significant issue.”

Robert C. Clark, former Dean of Harvard Law School, has a different take on the issue:

When Ms. Kagan became dean in July of 2003, she upheld this newer policy. Military recruiters used OCS services, but at the beginning of each interviewing season she wrote a public memorandum explaining the exception to the school’s nondiscrimination policy, stating her objection to “don’t ask, don’t tell,” and expressing her strong view that military service is a noble and socially valuable career path that should be encouraged and open to all of our graduates.

In November 2004, however, the Third Circuit Court of Appeals found that the Solomon Amendment infringed improperly on law schools’ First Amendment freedoms. So Ms. Kagan returned the school to its pre-2002 practice of not allowing the military to use OCS, but allowing them to recruit via the student group.

Yet this reversion only lasted a semester because the Department of Defense again threatened to cut off federal funding to all of Harvard, and because the U.S. Supreme Court reversed the Third Circuit’s decision. Once again, military recruiters were allowed to use OCS, even as the dean and most of the faculty and student body voiced opposition to “don’t ask, don’t tell.”

Outside observers may disagree with the moral and policy judgments made by those at Harvard Law School. But it would be very wrong to portray Elena Kagan as hostile to the U.S. military. Quite the opposite is true.

It’s not an argument that will sway many right of center folks. Example:

This comes too close to that leftist drivel: We support the Troops! ( We really don’t like what they do as part of the evil Military warmongering machine. But as long as it is politically expedient for us to do so….why, we’ll have our picture taken with them and shake their hands and throw money at them.)


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