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The Standing Rules of the Senate are drafted to encourage vigorous public debate on our nation’s most important issues. Indeed, the U.S. Senate is often referred to as “the world’s greatest deliberative body.” The Rules allow any Senator to seek recognition from the Chair at any time and, absent a temporary agreement to the contrary, to speak without interruption so long as he or she wishes. Debating important questions before the Senate is one way a Senator can highlight an issue, advocate for a change in policy, or voice his or her opinion on pending legislation.
Senate debate occurs in public, and is televised on CSPAN and transcribed in the Congressional Record. For your convenience, I post transcripts of my Senate floor speeches on this site for your review. I hope you find them informative and useful. My web site also makes available information on my voting record and legislation that I have sponsored in the Senate.
KAGAN NOMINATION -- (Senate - May 24, 2010)
Mr. SESSIONS. Mr. President, Americans cherish and respect their military. They support and celebrate those who wear the uniform and serve our Nation. When our Nation is at war, they understand that this obligation of support deepens. Indeed, just Friday, I got forwarded to me an e-mail from a mother whose son was being deployed to Iraq, and she said that the one thing critical to them was to feel they had the support of the American people.
The American people understand that no matter what your ideology, no matter your view of the conflict we are engaged in, you have to support those whom we in Congress have deployed to execute policies that the President and the Congress have adopted. They didn't adopt the policies; we did. And when we send them, they deserve our support. The American people understand that it is not about politics but about the duty of citizenship--a duty to stand in solidarity with those in harm's way and those who defend our freedoms.
I believe these sentiments--shared by Americans overwhelmingly--are important as we evaluate the conduct of President Obama's Supreme Court nominee, Elena Kagan. They will raise serious questions that really must be answered before we have a final vote. I think it is just as important for me to say that.
Some people have suggested that the issue I am going to talk about is not significant. I think it is. I was involved in the debate of the Solomon amendment. I remember how it happened.
Ms. Kagan, who became the dean of Harvard Law in 2003, kicked the military off Harvard's campus and out of its campus recruitment office. She gave the big law firms full access to recruit bright young associates but obstructed the access of the military as it tried to recruit bright young JAG officers to support and represent our soldiers as they were risking their lives for our country. It was an unjustifiable decision. But rather than acknowledge that Ms. Kagan had acted inappropriately, the Obama administration has instead done something that, to me, is odd: it has tried to defend this indefensible activity--distorting the clear facts in the process. We need to get that straight. As we begin to think about this nomination, we need to understand the facts.
During a recent television interview, Vice President Biden actually said that Ms. Kagan was ``right'' to interfere with military recruitment. He then defended her conduct with the suggestion that she was somehow acting under a court order to keep the military people off campus. In reality--let's be correct--I misspoke--to keep the military from utilizing the normal recruitment offices available to every other law firm in America. In reality, the opposite situation is true. Ms. Kagan disregarded the law, really, in essence, in order to obstruct military recruitment during a time of war.
In 1995, Congress passed the Solomon amendment, which required universities to give equal access to military recruiters if they wished to continue to receive taxpayer funding for their university programs.
The passage of the Solomon amendment was a matter of a large national debate. I suspect most Americans have a vivid recollection of those discussions. It was well known that certain law schools, such as Harvard, were blocking the military from going to their recruitment offices and utilizing the resources like any other entity could do.
Administrators at Harvard and other law schools had been restricting access of military recruiters to campuses for several years, citing as their reason their opposition to President Clinton's don't ask, don't tell policy about gays in the military. That was something on which Congress had voted. It is a matter of statutory law, and President Clinton had indicated his support in the way it would be enforced. It came to be fairly settled as a national policy in that regard.
It was Congress's hope that the Solomon amendment would put an end to this obstruction. It basically said: You cannot deny our military the right to come on campus if they are following U.S. law, and still get Federal money. But Harvard persisted nonetheless.
Finally, in 2002, I believe it was the Air Force that made an official complaint. The Department of Defense spoke up. It quoted the statute that had been passed in the U.S. Code, title 10. They quoted it to Harvard and said: If you continue to deny entrance of our military personnel to the recruiting centers, you get no more Federal money. At that point, the principle evaporated. This great principle on which they were standing, a little money dangled in front of them and they folded on this point.
Dean Clark, Ms. Kagan's predecessor at Harvard, got the message, and he complied. The restrictions on the military recruitment were lifted.
This means that when Ms. Kagan became dean of Harvard, the military had full, open, and equal access to campus facilities. That is the policy she inherited; that is the policy she deeply opposed; and that is the policy she set about to reverse.
Ms. Kagan began her efforts to reverse the policy when she joined 53 of her academic colleagues in filing a brief to challenge the Solomon amendment. This case had been filed in another circuit, not Harvard's. If their efforts in this legal attack were successful, they would again obstruct the military's access on campus, and they could do so without losing Federal funds. That is what she wanted, no doubt about that.
Initially, the Third Circuit Court of Appeals, not her circuit, heard the case, and they issued a 2 to 1 decision that ordered the district court in New Jersey to issue a preliminary injunction suspending enforcement of the Solomon amendment in that district in New Jersey. The injunction was to take effect after a certain time period. I believe 50 days. But that injunction was never issued, even in that one district of New Jersey, because the Supreme Court of the United States undertook to hear the case, and the court of appeals, respecting the Supreme Court's view, eliminated their order staying the enforcement of the Solomon amendment.
I note, even if the Third Circuit's ruling had not been stayed, it would have applied only to the Third Circuit, not to Harvard. Remember, the Solomon amendment was a duly enacted law passed by the Congress.
Fully understanding all of this, as the trained and educated dean she was, Dean Kagan still used this ruling as a pretext to deny the enforceability of the Solomon amendment on the Harvard campus, again kicking the military out of the campus recruiting office. It did not apply. It was never made applicable and certainly not made applicable to the Harvard campus. But yet she used that as a pretext to carry out her desires about the don't ask, don't tell policy.
But I am told: Don't worry about that, Jeff. They could still talk to veterans groups on campus. They were not barred from campus. They just could not use the center for recruiting, but they could still talk to people on campus, and it is not so important. Well, if it is not so important, why did Dean Kagan go to such great lengths to have the law overturned, even risking Harvard's financial support? It was important.
Barred from institutional access, the military now had to work through a student group, the Harvard Law School Veterans Association. The veterans association, however, did not believe this was fair to them. They had courses to attend and school work to do. They wrote to their classmates about Dean Kagan's decision and explained they were unable to fill the role of the military recruiters that she had excluded. This is what they said:
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.
But Dean Kagan still did not relent. Only when the military again threatened to cut off money to Harvard did she give in. This was the second time they had to make this threat. This statute says the Secretary of Defense shall notify them that they will no longer get Federal funds if they do not allow recruiters on campus.
Ms. Kagan reversed Harvard's existing policy in order to obstruct the access of the military recruiters. She disregarded a congressional statute. Eventually, her view was rejected by the Supreme Court.
So what happened when the Third Circuit case got to the Supreme Court? She filed a brief with a group of other academics attacking the Solomon amendment. What happened? By an 8-to-0 vote, the U.S. Supreme Court rejected her brief.
According to Dean Kagan, actions she took against the military were motivated by her opposition to don't ask, don't tell. But somehow her fierce opposition was not enough to prevent her, I note parenthetically, from serving as a loyal aide to the man who created the policy, President Clinton. No, instead she directed her punishment to the military that had nothing to do with it. The soldiers, the recruiters who wanted to come on Harvard campus had nothing to do with establishing this don't ask, don't tell policy. It was Congress's law. It is statutory, and President Clinton endorsed it with his don't ask, don't tell enforcement strategy. It was the law of the land. It was not a policy dreamed up by some general somewhere. She knew that.
Ms. Kagan's conduct may have been applauded by some in the progressive circles of academia, but I think the American people would be uneasy about it. They are not sympathetic to the actions she took against the brave men and women who defend the rights and freedoms of Ms. Kagan, of Harvard professors, and of all Americans.
Dean Kagan has no judicial record to examine, and she has very little experience as a lawyer. One of the most prominent features of her legal experience and her tenure at Harvard is scarred by her open mistreatment of the military and her disregard for very clear law. I wish it were not so, but it is.
This matter does raise questions of whether Dean Kagan would be able to serve all Americans as a responsible, impartial jurist or whether she would bring her ideological agenda to the bench and attempt to get around the Constitution and the laws of the United States to effectuate what she thinks might be a better policy. That is the question I think is legitimate to ask, as well as to ask, in a serious way: What were you thinking when you punished our men and women in uniform because you did not like what Congress and your President--President Clinton--did with regard to their policies on gays in the military?
It is not a small matter. I believe this decision was clearly wrong. I believe it was not lawful. I believe it was not good policy. We will need to talk about that as we go forward and to hear a sincere explanation from the nominee.
This is not something from which we cannot learn. It is not necessarily the decisive matter in this person's nomination. But it is not correct to say it is an insignificant matter. It is a significant matter, a very significant matter. And it is a matter of significance such that whoever comments about it, even if it is the Vice President of the United States, they should be accurate. They should not be inaccurate, as has happened repeatedly from my observation in the media, as well as my good friend, our former colleague, Senator BIDEN, who also served on the Judiciary Committee. It is time we get these facts straight.
I also wish to express a concern about one more matter. During her time in the Clinton White House, 1995 to 1999, Dean Kagan, now Solicitor General Kagan, served in the White House Counsel's Office and later as Director of Domestic Policy Council in the White House. That is one of the few extensive public records she has. We need to obtain the documents relating to that service in advance of the hearings that now have been set for June 28. I think it is a rush to get ready for June 28, but I told Senator Leahy, our chairman, that he is the boss, and we will try to be ready by the 28th. But we both know it is important to have these documents in time to examine them before the committee hearing because so little other documents exist as to her record.
All the documents that have been requested I believe the committee is entitled to see. Senator Leahy has joined with me. We worked together on this. It appears President Obama has decided not to assert any claims of Executive privilege that would block the production of any of these documents. We received a letter from the Clinton Library on Friday where these records are held indicating that they understand President Obama will not make any claims of privilege.
The White House recognizes these documents are an important part of Ms. Kagan's record. In fact, after she was nominated, the White House sent a public letter to the National Archives asking for release of documents relating to her service in the Clinton White House. They included all of her e-mail documents in their request. But the White House request and media requests under FOIA are different from the committee request.
So last week, Chairman Leahy and I sent a letter to the Clinton Library requesting these documents.
I appreciate the leadership of Senator Leahy, who has been through so many of these confirmation matters--this is consistent with our history--and I appreciate his efforts on the letter and to get this information. But I would note there are important distinctions between the Obama White House's request and the committee's request.
First, the restrictions that apply to run-of-the-mill Freedom of Information Act requests do not apply when the committee requests document. Second, under the Presidential Records Act, President Clinton would normally be able to block the release of certain documents for up to 12 years. But under the PRA, the committee's request overrides any attempt by President Clinton to block the release of these records. Faced with a committee request, the only basis for withholding documents is executive privilege, and
President Obama has apparently decided not to do that.
So the concern is that last week the director of the library was quoted in the Los Angeles Times as saying that it would be ``very difficult'' for them to comply by the June 28 hearing date. The director said, ``there are just too many things here,'' and that ``these are legal documents and they are presidential records, and they have to be read by an archivist and vetted for any legal restrictions. And they have to be read line by line.''
In the letter we received on Friday, the library indicated they will start delivering documents by June 4--3 weeks before the hearing--and then they will make additional deliveries on a rolling basis. They did not tell us by when they will provide all the documents. I know they have a hard job. Maybe they have to do all these things, but the fact is we have a deadline that has been set by Chairman Leahy to start the hearing on June 28, and we are not able to, in my view, conduct a good hearing if we don't have the documents.
So I am trying to make clear to my colleagues that we are heading toward what could be a train wreck. I don't believe this committee can go forward without these documents in the request and have an accurate hearing. The public record of a nominee to such a lifetime position as Justice on the Supreme Court is of such importance that we cannot go forward without these documents. I hope we will get those in a timely fashion. If not, I think we will have no choice but to ask for a delay in the beginning of the hearings.
I thank the Chair, and I yield the floor.