WASHINGTON — U.S. Supreme Court nominee Elena Kagan doesn't have the extensive paper trail of a sitting judge.
What she does have is her record as a public official and prominent scholar.
And at least one decision she made while dean of the Harvard Law School is cause for concern, Sen. Mike Johanns, R-Neb., and other Republican critics say.
Kagan in 2004 booted military recruiters in rapid response to a federal appeals court decision removing the requirement that universities receiving federal grants must allow military recruiters on campus.
“Not even the Supreme Court agreed with her,” Johanns told The World-Herald this week. “I think that was an 8-0 decision . . . for the Supreme Court to come out 8-0 is a slam dunk.
“She was wrong. She just simply was wrong.”
The 3rd U.S. Circuit Court of Appeals had found unconstitutional the Solomon Amendment that allows the government to deny federal grants to schools that prohibit military recruitment on campus.
The next day, Kagan banned military recruiters from using a campus placement office, but allowed them to work through a veterans group. Under threat of a funding loss, Kagan again allowed the recruiters to use the placement office.
In 2006, the Supreme Court unanimously reversed the appeals court, calling the government's decision to deny funding to schools that do not allow military recruiting constitutional.
Kagan's decision to bar the recruiters is likely to get more air time as her confirmation process moves forward.
Asked about the issue, Sen. Ben Nelson, D-Neb., said he was unfamiliar with all the details.
“I'm aware that there's some sort of controversy about that, but I haven't dug into it yet,” Nelson said.
Sen. Chuck Grassley, R-Iowa, a senior member of the Senate Judiciary Committee, said he has to wait for Kagan's confirmation hearing to judge her fitness for the position but noted her status as the rare recent Court nominee without experience on the bench makes her harder to judge.
“She's not as much of an open book as otherwise would be, and I think it puts more responsibility . . . on her to be more clear when we ask her questions,” he said.
Johanns, though, said Kagan's decision at Harvard reflects poorly on her judgment.
“She really was wrong on this one, and apparently she was playing some politics with the issue and that's just not a good thing,” Johanns said, adding that he will consider Kagan's “total record” before deciding whether to support her confirmation.
“She's obviously very bright. She's very accomplished in what she has done in her life,” Johanns said. “So, it's all part of what you look at.”
This report contains material from the Associated Press.
Contact the writer:
202-662-7270, joe.morton@owh.com
