Coburn Written Questions to Kagan on Military Recruiters, Guns, Abortion

After Elena Kagan’s nomination hearing to be solicitor general, Sen. Tom Coburn sent some written follow-up questions to Kagan about her stance on military recruiters on college campuses and gun rights. Here are the questions sent by Coburn, R-Muskogee, a member of the Senate Judiciary Committee:

Follow-up Questions of Senator Tom Coburn, M.D.
Hearing: “Nomination of Elena Kagan to be Solicitor General of the United States”
United States Senate Committee on the Judiciary
February 10, 2009

Solomon Amendment
President Obama has said, “the notion that young people…anywhere, in any university, aren’t
offered the choice, the option of participating in military service, I think is a mistake.” As
solicitor general, you are tasked with deciding whether and when to appeal if a lower court rules
against the government in any case.
• If a lower court strikes down the Solomon Amendment, which it appears this
Administration supports, will you recommend intervening on behalf of the government to
defend the policy, even though you once described its defeat as “gratifying?” (Reported in
the Harvard Law news on 11/30/04 after the Third Circuit struck down the Solomon
Amendment)
• Would you recuse yourself from personally arguing a case involving the Solomon
Amendment?
• Will you commit to ensuring a vigorous defense of the Solomon Amendment, providing
the resources and expertise necessary to vehemently defend the policy?
• Do you believe that you would enjoy a job that requires you to advance a policy that you
have described as “discriminatory,” “deeply wrong,” “unwise,” “unjust,” “abhor[rent],” a
“profound wrong,” and a “moral injustice of the first order?”

(Kagan) Answer: As I stated at my confirmation hearing, I know well the facts and issues
involved in Rumsfeld v. FAIR, 547 U.S. 47 (2006), and I feel confident in saying that had
I been Solicitor General at the time that the 3rd Circuit held the Solomon Amendment
unconstitutional, I would have sought certiorari in the Supreme Court, exactly as then-
Solicitor General Paul Clement did. A fortiori, now that the Supreme Court has upheld
the Solomon Amendment, if confirmed I would vigorously defend it against
constitutional challenge. I would not recuse myself from participating in or personally
arguing such a case because I would feel confident in my ability to supply such a defense
given the responsibilities and role of the Solicitor General. I understand that role as
representing the interests of the United States, not my personal views. I indeed think that
I would enjoy, as well as be deeply honored by, the Solicitor General’s position if I am
fortunate enough to be confirmed. The advocate’s role is frequently to put aside any
interests or positions other than those of her clients. And as I hope I expressed at my
confirmation hearing, I would take enormous pride in representing and advancing the
interests of the United States as a client – even if I would not myself have voted for every
one of its statutes.

Solomon Amendment — Amelioration
The Association of American Law Schools (AALS) requires that law schools “ameliorate” the
“presence of the military on campus.” This guide, produced by the Association of Legal Career
Professionals, was produced after the Supreme Court upheld the validity of the Solomon
Amendment.
• Are you familiar with the “Amelioration Best Practices Guide,” published by the
Association of Legal Career Professionals in August 2007?
• As dean of Harvard Law School, did you ever consult the Guide or adopt any of its
recommendations? If so, which ones?
• The only ameliorative step that is “absolutely mandated” by the AALS is that a notice be
posted stating that the military’s so-called discriminatory practices are inconsistent with
the schools nondiscrimination policy. Also required, however, is an additional
“amelioration” step. Do you believe that an additional step is necessary? If so, why is
notice insufficient to educate law students of the difference in policy?
• Do you believe that law schools should not only ameliorate any perceived ills that stem
from military activities or presence on campus, but that they should also protest either the
military’s presence or policies? (The Guide refers to a “commitment to acts of protest and
amelioration.”)
• The Guide describes “[p]rotesting or picketing military recruiters when they come to
campus” as an “ameliorative step.”
o Do you think the Guide’s characterization of protesting or picketing as
“amelioration” is accurate?
o Do you believe such conduct is appropriate?
o As dean, do you ever encourage or participate any such protests or pickets of the
military?

Answer: I am not familiar with the 2007 Guide to which this question refers, and I never
consulted it. I do have some knowledge of earlier AALS guidance on the same issue,
which suggested that law schools engage in “amelioration practices.” My general
approach to this guidance was to interpret it as urging law schools to create a respectful
and welcoming environment for gay and lesbian students, which as the dean of Harvard
Law School, I would have tried to do regardless. I have never specifically thought about
the questions whether the AALS should require “amelioration steps” beyond notice or
what the AALS counts as “amelioration.” Again, because I understood the concept of
“amelioration” as doing the kinds of things that make a community of students feel
welcome and respected on campus (which I do for many communities of students), I
never experienced this guidance as particularly intrusive. I certainly do not think law
schools should feel any obligation to protest the military’s restrictive employment
policies; at the same time, I believe in principles of free expression that permit members
of a law school community to engage in peaceful and non-disruptive protests of all kinds,
including to express opposition to governmental policies. The freedom to engage in such
expressive activity indeed was relevant to the Court’s decision in Rumsfeld v. FAIR: in
holding that the Solomon Amendment does not violate the First Amendment, the Court
noted that “law schools remain free under the statute to express whatever views they may
have on the military’s congressionally mandated employment policy,” id., at 60, and
“students and faculty are free to associate to voice their disapproval of the military’s
message.” Id., at 69-70. During my tenure as Dean, Harvard Law School itself never
sponsored or organized protests of the military’s employment policy, but students
sometimes did so. I made remarks at one assembly organized for this purpose by
Lambda, our gay and lesbian student organization, in October 2004; I have provided
press coverage of this event to the Judiciary Committee. I believe I also may have
attended but not spoken at one other event of this kind.

ROTC:
• As dean of Harvard Law School, your decision to restrict military recruiters’ access to
students was limited to career services. Does your personal opposition to the Solomon
Amendment mean that you also support barring the ROTC from college campuses?
• As dean of the law school, did you ever express objection to the exclusion of the ROTC
from Harvard?