By Lucy Panza, DC Policy Intern
The Senate Judiciary Committee hearings on the nomination of Solicitor General Elena Kagan to be Associate Justice of the Supreme Court concluded yesterday evening after three panels of approximately two dozen witnesses in total testified for and against her confirmation. The panelists ranged from military veterans to a women’s rights activist to current and former law professors. Diversity among the panelists stemmed mostly from their professional identities, but there was little racial diversity to behold. Indeed, all but three of the witnesses were white, and none were Latina or Latino.
The purpose of the witnesses’ presence was to emphasize to the Committee and the general public that the confirmation of a new Supreme Court Justice has real consequences in the lives of ordinary Americans. First came Lily Ledbetter and Jack Gross, two famous civil rights plaintiffs whose gender and age discrimination cases, respectively, failed before the Supreme Court and cost them dearly. Both Ledbetter and Gross supported Kagan’s nomination based on her testimony and what they have learned about her legal expertise and background.
Then came a slew of opposition to Kagan’s confirmation from several military veterans who seriously criticized Kagan’s alleged exclusion of military recruiters from Harvard Law School’s campus during her time there as Dean, in order to protest the military’s Don’t Ask Don’t Tell policy against LGBTQ service members. These veterans disparaged Kagan’s supposed punishment of volunteer military recruiters by treating them as “second-class citizens,” which according to these veterans, was tantamount to imposing a “separate but equal” policy on Harvard Law School’s recruiting policies. That the phrase “separate but equal” refers to a racially charged period of time in American history, when African Americans were systematically excluded from the public life that whites led and relegated to inferior class status, apparently escaped both the veterans and the senators on the Committee. Indeed, no one questioned the curious analogy between racial segregation in the Jim Crow era and differential treatment of the military in its recruiting at the Hallowed Halls of Harvard Law School during the Spring 2005 semester. (For some background on the issue, read Kagan’s letter to the student body here.) The only response to that group of witnesses in defense of Kagan came from Senator Richard Durbin (D-IL), who said, “It was a matter of conscience for her to speak out. I respect that…She might have done it differently; we all might do things a little differently.” On a later panel, Capt. Kurt White spoke in favor of Kagan’s approach to the military.
Other supporting witnesses included Kim Askew on behalf of the American Bar Association, which gave Kagan its highest rating of “well qualified;” Harvard Law Professor Jack Goldsmith, who despite his conservative credentials as a former Bush appointee at the Department of Justice, expressed his sincere support for Kagan as a former colleague; and Marcia Greenberger, founder and co-president of the National Women’s Law Center, who spoke about the importance of the historical moment in which three female Justices will finally sit on the Supreme Court bench. Opposition witnesses were mostly military veterans and anti-choice advocates.
The Kagan nomination hearings are now over. The Senate Judiciary Committee is expected to vote her nomination out of committee on onto the full Senate floor after the July 4th recess. The full Senate is expected to confirm her before the August recess.
By Lucy Panza, DC Policy Intern