Elena Kagan on Homeland Security



2003: Opposed military excluding gays from military service

As Dean of Harvard Law School, Kagan implemented the school's policy banning military recruiters from participating in job interviews with students (or at least, excluding Defense Department recruiters from the same access given to private law firms and private advocacy organizations). Kagan explained that this policy was intended to register the law school's opposition to "the military's policy" of excluding open homosexuals from military service.
Source: Jeremy Rabkin, Heritage Foundation report, "America's Place" , Jun 23, 2010

Al Qaeda suspects should be held under indefinite detention

For many liberals and civil libertarians, the Kagan nomination is a terrible act of betrayal. He is now nominating someone who has testified that she does not believe in core protections for accused individuals in the war on terror. During her confirmation hearing Kagan testified that she believed that anyone suspected of helping finance Al Qaeda should be stripped of protections and held under indefinite detention without a trial--agreeing with the Bush Administration."
Source: ScotusBlog.com on Elana Kagan confirmation hearing , May 10, 2010

Enemy forces can be detained without trial

[During Kagan's confirmation hearings], Senator Lindsay Graham asserted that, under military law, a member of an enemy force can be detained without trial. When he asked Kagan whether she agreed, she replied "I think that makes sense, and I think you're correct that that is the law"

Kagan declined to answer a question regarding the rights of detainees held at the Bagram Air Force Base on the ground that she might one day have to rule participate in ongoing litigation on that question.

Source: Tom Goldstein on SCOTUS Blog, "9750 Words" , May 8, 2010

Military plays vital role in well-being of the country

[Other than banning military recruiters to protest Don't-Ask-Don't-Tell], there is no evidence that Kagan harbors any hostility towards the military. She hosted dinners at Harvard for veterans. Her email to the student body [about the recruiter ban] takes care to state her respect for the military. For example, when she was invited to give a lecture at West Point, Kagan explained that she was "in awe of [the cadets'] courage and dedication" and recognized that "my security and freedom depend on all of you." Kagan explained that in light "of the vital role the military plays in the well-being of the country," she was "grieved" at the conflict between the military & law schools, including her "personal" belief "that the exclusion of gays and lesbians from the military is both unjust and unwise." It was precisely because of her respect for the military that she "wish[ed] devoutly that these Americans could join this noblest of all professions and serve their country in this most important of ways."
Source: Tom Goldstein on SCOTUS Blog, "9750 Words" , May 8, 2010

Oppose Solomon Amendment: let colleges bar ROTC recruiting

Kagan addressed the Solomon Amendment [which denies federal grants to college which prohibit or prevent ROTC or military recruitment on campus]: "As the dean of a law school with a general nondiscrimination policy--meant to protect each of our students regardless of such factors as race, religion, sex, or sexual orientation--I thought the right thing to do was to defend that policy and to do so vigorously. For that reason, when the Third Circuit held the Solomon Amendment unconstitutional, I reinstated the school's policy pending the Supreme Court's decision in Rumsfeld v. FAIR." [FAIR, the Forum for Academic and Institutional Rights, was a consortium of law schools that opposed military recruiting due to the military's don't-ask-don't- tell policy; they lost the SCOTUS case]. "Of course, Harvard Law School has been in full compliance with the Supreme Court's decision since the day it was issued. As Solicitor General, I would have a wholly different role and set of responsibilities."
Source: cotusBlog.com on Kagan confirmation hearings , May 8, 2010

2009: Ok to detain enemy combatants in wartime without trial

Liberal commentators also point to a brief exchange between Lindsay Graham and Kagan at her confirmation hearings. Senator Lindsay Graham (R-SC) asserted that, under military law, a member of an enemy force can be detained without trial. When he explained that Attorney General Holder had agreed with that statement in his hearing and asked Kagan whether she agreed, she replied "I think that makes sense, and I think you're correct that that is the law."

It seems to me that liberals' reliance on that passage is dramatically overblown. Kagan was asked whether the Attorney General, for whom she would work directly, was right in his understanding of existing law. The question had nothing to do with Kagan's own views. And a single sentence in a confirmation hearing is far too slender a reed on which to base an understanding someone's views on a question as complicated as the President's power in war time.

Source: cotusBlog.com on Kagan confirmation hearings , May 8, 2010

Apply rule of law to Guantanamo detainees

Letter to Senator Patrick Leahy, which Kagan signed with other law school deans, opposing legislation that would strip courts of jurisdiction to hear the cases of Guantanamo Bay detainees:
Source: ScotusBlog.com on Elena Kagan confirmation hearing , Nov 14, 2005

Other Justices on Homeland Security: Elena Kagan on other issues:
Samuel Alito(since 2006)
Amy Coney Barrett(since 2020)
Stephen Breyer(since 1994)
Neil Gorsuch(since 2017)
Ketanji Brown Jackson(nominated 2022)
Elena Kagan(since 2010)
Brett Kavanaugh(since 2018)
John Roberts(since 2005)
Sonia Sotomayor(since 2009)
Clarence Thomas(since 1991)

Former Justices:
Merrick Garland(nominated 2016)
Ruth Bader Ginsburg(1993-2020)
Anthony Kennedy(1988-2018)
Antonin Scalia(1986-2016)
John Paul Stevens(1975-2010)
David Souter(1990-2009)
Sandra Day O'Connor(1981-2006)
William Rehnquist(1975-2005)

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Page last updated: Mar 21, 2022