Tuesday, October 25, 2011

Feminist Legal Theory Collaborative Research Network
Law and Society Association Annual Meeting, June 5-8, 2011
Invitation and Call for Papers

Dear friends and colleagues,

As many of you know, the Feminist Legal Theory Collaborative Research Network (CRN) is a newly-constituted group that seeks to bring together scholars across a range of fields who are interested in feminist legal theory. At our inaugural get-together at the Law and Society Association (LSA) meeting this past June, we decided to organize two events for the coming year. The first will be in Washington, D.C., in conjunction with the AALS annual meeting in January 2012. We are writing to give you details about the second, which will take place in Honolulu, Hawaii, in conjunction with the LSA annual meeting, June 5-8, 2012.

We hope to organize a number of panels for this year’s LSA meeting; we would like to invite you to submit paper proposals for these panels. There is no single topic or theme to which paper submissions must conform: they should simply relate to feminist legal theory in some shape or form. We particularly welcome proposals which would permit us to collaborate with other CRNs, which have organized around topics such as Critical Research on Race and the Law, or Gender, Sexuality and the Law. Also, because the LSA meeting attracts scholars from other disciplines, we welcome multidisciplinary proposals. Our goal in organizing these panels is to stimulate focused discussion on papers on which scholars are currently working. Thus, while proposals may reference work which is well on the way to publication, we are particularly eager to solicit proposals for works-in-progress which are at an earlier stage, and which will benefit from the discussion that the panels will provide.

Our panels will utilize the LSA format, which requires four papers; but we will continue the approach that worked so well last June, when each paper had an assigned commentator who had read the paper closely and began the discussion. A committee of the CRN will assign individual papers to panels based on subject and then will ask CRN members to volunteer to serve as chairs of each panel. The chair will develop a 100-250 word description for the session and submit the session proposal to LSA before the upcoming December 6 deadline, so that each panelist can submit his or her proposal, using the panel number assigned. Chairs will also be responsible for recruiting commentators but may wait to do so until panels have been scheduled later this winter, so as to minimize conflict with paper presentations that commentators themselves may be doing at the meeting.

If you would like to submit a paper for one of the CRN panels, please do so by using the Feminist Legal Theory CRN TWEN page. TWEN is an online resource administered by Westlaw. If you haven’t yet registered for the TWEN page, signing up is easy. Just sign onto Westlaw, hit the tab on the top for “TWEN,” then click “Add Course,” and choose the “Feminist Legal Theory” CRN from the drop-down list of National TWEN Courses. Or, if you have a Westlaw OnePass as a faculty member, you can enter the Easy Course Access link below:

Easy Course Access Link:

If you enter through the Easy Course Access Link above, you will immediately see a link to the Feminist Legal Theory CRN TWEN page, and you should click on it.

If you aren’t enrolled on the TWEN page and you don't have a Westlaw password, please email Kathy Abrams (krabrams@law.berkeley.edu) or Susan Appleton (appleton@wulaw.wustl.edu) and we'll enroll you directly.

Once you arrive at the Feminist Legal Theory CRN TWEN page, by either of the above routes, look to the left hand margin for a tab to “June 2012 Law and Society – Sign-Ups and Paper Proposals.” When you click on it, you will see two threads under “topics.” One thread will permit you to post a paper proposal; the other will permit you to sign up as a commentator or panel chair. Just click on the thread you want to post to; you will then get a new screen that locates you within that thread: hit “reply” to post a reply to it. If you post a paper proposal, you should include your name, a title, and an abstract of 400-500 words.

Please submit all proposals for paper presentations by November 14, 2011. This will permit us to organize panels and submit them prior to the LSA’s deadline of December 6, 2011. We are aiming roughly for 6 to 8 sessions. If we receive too many proposals and cannot accept all for the CRN, we will notify you by November 28, 2011, so that you can submit an independent proposal to LSA. In addition, if you would like to serve as a chair or a commentator for one of our panels, or if you are already planning a LSA session with four panelists (and papers) that you would like to see included in the Feminist Legal Theory CRN, please let Kathy or Susan know.

In addition to these panels, we may try to utilize a more flexible format that the LSA also provides: the roundtable discussion. Roundtables are discussions that are not organized around papers, but rather invite several speakers to have an exchange focused on a specific topic of interest to the group (in this case, of interest to the CRN). If you have an idea relating to feminist legal theory that you think would work well in this format, please let Kathy or Susan know, as well.

Those of us who were present at last year’s meeting were delighted by the papers presented and the opportunity to connect with others in doing work on feminism and gender. We look forward to another terrific meeting in Hawaii.

Kathy Abrams
Susan Appleton
Beth Burkstrand-Reid
Donna Coker
Leigh Goodmark
Jennifer Koshan
Nancy Polikoff

October 25, 2011 | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 29, 2011

Obama and same-sex marriage: the lawyerly straddle continues

Republished from the University of Chicago Law School Faculty Blog.

President Obama's remarks last week to a gay/lesbian fundraising event must have disappointed his supporters who have grown tired of straddling and rhetorical games on the subject of marriage equality from someone who once called himself a "fierce advocate" for gays and lesbians.

To be sure, this administration has accomplished far more to advance gay and lesbian equality than any other: the repeal of Don't Ask, Don't Tell; the bold decision not to defend the federal Defense of Marriage Act (DOMA); a federal mandate that hospitals allow visitation rights to gay partners; passage of a new hate crimes law. Much of this policy and legal work has been creative and courageous.

And yet, speaking in New York, where gays and other progressives are on the one-yard line of legalizing same-sex marriage, Obama could not bring himself to join or even clearly endorse their fight. The best he could do was praise marriage supporters for advancing "debate" and "deliberation about what it means here in New York to treat people fairly in the eyes of the law."  Grappling with issues that are "tough" and "emotional" will, he said, help assure that "slowly but surely we find the way forward."

This sort of circumlocution is one of the skilled speechwriter's dark arts: avoiding candor and commitment while bathing your audience in seemingly empathetic platitudes. To say you believe your friends are "doing exactly what democracies are supposed to do" is not the same as declaring your solidarity with the moral purposes of their struggle. It is a way of flattering them because you hope they'll still like you (and donate time and money to your campaign) while also staying above the fray.

The president said he "believe[s] that gay couples deserve the same legal rights as every other couple in this country." But this is lawyerly precision in the service of straddling. He would not say that gay couples deserve "marriage." Obama wants to "keep on fighting until the law no longer treats committed partners who’ve been together for decades like they’re strangers." But this is more political circumlocution. What gays want is simpler but more profound: for their relationships to be regarded as equivalent in the eyes of the law to those of straight people. There is a subtle but important difference between having "the same legal rights" as someone else and having actual equality.

Civil unions, the vehicle Obama supports to provide those "same legal rights," are not the same as marriage.  As one commentator has written:

There are legal reasons why they're not equal -- marriage is recognized in every state and indeed every country, while civil unions aren't; so the rights and responsibilities don't necessarily travel with you when you leave the state that granted them.

There are emotional reasons -- marriage is an institution/ ritual/ relationship that has existed for thousands of years, one that has tremendous resonance in our culture in a way that civil unions simply don't. And there are moral reasons -- as history has born out, separate but equal is pretty much by definition not equal.

And as David Buckel of Lamdba Legal writes:

For people who would choose to marry, anything other than marriage has to be explained. Only the word married conveys the universally understood meaning applicable to many of our families — a meaning unmatched by any other word. By imposing civil unions and barring marriage, even if the two statuses offer the same benefits and obligations on paper except for the powerful “M” word, the government is forcing same-sex couples to explain the difference in theirdaily lives. They lose the respect and dignity they believe their commitment deserves.

Obama's clearest, most unequivocal statement on marriage remains the views he expressed to pop preacher Rick Warren during the 2008 campaign: “I believe that marriage is the union between a man and a woman. Now, for me as a Christian…it is also a sacred union. God’s in the mix.” If this remains Obama's true belief, as opposed to another posture, then ironically he may have more political and moral kinship than he might like to admit with those who wrote and pushed through DOMA in 1996. DOMA's sponsors asserted that among the purposes of their legislation was "defending and nurturing the institution of traditional, heterosexual marriage," because such family configurations had been "ordained by God."

Let's be candid. Obama faces a nihilistic political opposition that has demonstrated it will say anything in order to demean and defeat him, whether true or not. Does he really think that if he technically does not endorse same-sex marriage, the people who fight against gay marriage will keep an open mind about voting for him? Or, at a time when a majority of Americans now support marriage equality, does he really believe that this kind of political tapdance will be alluring to "moderates"?

Obama reminded his audience Thursday night that he had taught constitutional law (it was at this law school, no less), and that this experience led him to conclude that DOMA was unconstitutional. But opposing DOMA -- which concerns whether the federal government should merely recognize extant same-sex marriages that have been created by the states -- is not the same thing as declaring that you believe it is legally just and morally salubrious for states to provide equal marriage. As a former con law teacher, Obama also should know that when people are seeking full legal equality in a civil institution, "separate but equal" compromises--the kind of compromise he continues to endorse regarding same-sex marriage--have been rejected since Brown v. Board of Education more than half a century ago as not only unconstitutional, but illusory and cynical as well.

Steve Sanders



June 29, 2011 | Permalink | Comments (0) | TrackBack (0)

Thursday, September 2, 2010

TEXAS WESLEYAN UNIVERSITY SCHOOL OF LAW invites applications for permanent faculty positions. We are interested in both entry-level and lateral candidates. Our curricular needs include Torts, Civil Rights, and Race and the Law. We welcome applications from all persons of high academic achievement with a strong commitment to teaching, scholarship, and service, and particularly encourage applications from women, minorities, and others whose backgrounds will contribute to the diversity of the faculty.

Texas Wesleyan University School of Law celebrated its twentieth year during the 2009-2010 academic year, and has seen tremendous growth in the quality of its students and the interests of its faculty. Located in downtown Fort Worth, the law school is within walking distance of the city's legal and judicial communities and is less than thirty miles from Dallas. Downtown Fort Worth and the immediate vicinity provide a vibrant atmosphere with an attractive combination of cultural, shopping, residential, dining, and entertainment options. The Fort Worth/Dallas “metroplex,” with a total population in excess of five million people, offers a relatively low cost of living and an expanding economy.

Interested persons should send a current résumé and a cover letter indicating teaching interests to Professor Wayne Barnes, Chair, Faculty Recruitment Committee, Texas Wesleyan University School of Law, 1515 Commerce Street, Fort Worth, Texas 76102-6509. Alternatively, the résumé and letter may be e-mailed to wbarnes@law.txwes.edu.

September 2, 2010 | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 14, 2010

Argentina's Senate to vote on marriage equality

The NYT reports:

Already known for having one of the most gay-friendly capitals in the world, Argentina is in the throes of a debate this week over granting the broadest marital protections to gay people in Latin America.

In what is expected to be a fierce discussion, Argentina’s Senate is scheduled to vote Wednesday on a bill allowing gay people to wed. The proposed law has increased frictions between the Roman Catholic Church and the government of President Cristina Fernández de Kirchner, which is pushing the bill.


July 14, 2010 | Permalink | Comments (0) | TrackBack (0)

Thursday, July 8, 2010

Federal court finds DOMA unconstitutional on Tenth Amendment, equal protection grounds

A federal district judge in Massachusetts has ruled that Section 3 of the Defense of Marriage Act, which established the federal government’s definition of marriage as between one man and one woman, is unconstitutional.

The court issued rulings in two related cases.  In the first, Gill v. Office of Personnel Management, brought by same-sex couples, the court agreed that Section 3 of DOMA denied the couples certain federal marriage-based benefits that are available to similarly-situated heterosexual couples, in violation of the Fifth Amendment's equal protection clause.  Click here to read the decision.
In the second case, Commonwealth v. U.S. Department of Health and Human Services, brought by the Massachusetts attorney general, the court "determined that it is clearly within the authority of the Commonwealth to recognize same-sex marriages among its residents, and to afford those individuals in same-sex marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital status. The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment. For that reason, the statute is invalid.”  Click here to read the decision.
Professor Ruthann Robson has a report and analysis at Conlawprof Blog. 

July 8, 2010 | Permalink | Comments (0) | TrackBack (0)

Monday, July 5, 2010

Kagan, law school recruiting, and civilian control of the military

Aaron Belkin, director of the Palm Center at UC-Santa Barbara, writes in the Huffington Post on the Kagan hearings and what they tell us about the state of civilian control of the military:

[T]he questioning of Elena Kagan reveals a failure on the part of our political institutions to exercise civilian control of the military. Whether or not one agrees with law schools who tried to enforce their own non-discrimination policies, the Pentagon played fast and loose with the facts and disguised a concern for disrespect and obedience with an argument about military recruiting, to say nothing of bullying university administrators and using personnel policy to express bigotry.

Rather than standing up to such affronts, Congress and the courts have been enablers, as we saw this week in the [Sen. Jeff] Sessions line of questioning. Congress's original passage of the Solomon amendment, conservatives' insincere claim that protest undermined recruiting, and the Supreme Court's willingness to allow the military to make unsubstantiated claims all suggest that some of our most powerful civilian leaders have failed to exercise civilian control of the armed forces.


July 5, 2010 | Permalink | Comments (0) | TrackBack (0)

Thursday, July 1, 2010

Wisconsin SCt upholds gay marriage ban against technical challenge

The Wisconsin Supreme Court has upheld the state's constitutional ban on marriage equality and civil unions.  In a unanimous ruling, the court rejected a claim that the 2006 amendment violated a rule limiting constitutional amendments to a single subject.  The opinion is here.


July 1, 2010 | Permalink | Comments (0) | TrackBack (0)

Monday, June 28, 2010

High court upholds public law school's non-discrimination policy against religious challenge

The Supreme Court Monday upheld a policy at a California law school that groups receiving campus funding must accept "all comers" -- that is, that they may not discriminate on the basis of race, religion, sexual orientation or other status or belief. The Christian Legal Society at the University of California Hastings had filed suit after the university revoked its recognition because the group barred membership to "unrepentant homosexuals."

While upholding the law school's policy, the Court remanded to the 9th Circuit an assertion by CLS that Hastings applied its non-discrimination policy selectively in this case.

Our colleague Ruthann Robson analyzes the decision over at ConLawProfBlog.

Lambda Legal and Gay and Lesbian Advocates and Defenders (GLAD) had filed a friend of the court brief arguing that CLS's exclusion of students who engage in same-sex sexual activity without remorse excludes gay people by definition.  "We're extremely pleased the Court has found that discrimination is discrimination, however you try to package it," said Jon Davidson, Legal Director of Lambda Legal. "CLS was attempting to draw a distinction between status and conduct. But when an organization has a membership requirement that one must believe conduct central to one's identity is immoral, that's the same thing as excluding people for who they are. It's wrong of CLS to expect students to fund a group that wouldn't have them as a member. The Court wisely rejected CLS's attempt to obtain what the Court recognized as 'preferential, not equal treatment' under the school's rules applicable to all other recognized clubs."


June 28, 2010 | Permalink | Comments (0) | TrackBack (0)

Sen. Byrd was powerful foe of same-sex marriage

Legendary West Virginia Sen. Robert Byrd, who died this morning, had at best a mixed record on civil rights.  He was once a member of the Ku Klux Klan (something for which he later apologized) and filibustered against the 1964 Civil Rights Act (though he later supported civil rights measures once he became a Senate leader).  He remained to the end, though, a powerful foe of marriage equality for gays and lesbians, taking to the Senate floor on at least one occasion to give an emotional, somewhat doddering speech on a topic for which his age and life experience obviously had not prepared him.  In 2006, he was one of only two Democrats (the other was Ben Nelson) to vote in favor of a constitutional amendment that would have banned same-sex marriage.


June 28, 2010 | Permalink | Comments (0) | TrackBack (0)

Monday, June 21, 2010

Travel Insurance: Protecting Lesbian and Gay Parent Families Across State Lines

Courtney Joslin, Acting Professor at the University of California Davis College of Law, just posted anew Article to SSRN entitled "Travel Insurance:  Protecting Lesbian and Gay Parent Families Across State Lines." 

Abstract:    Until recently, when a lesbian couple had a child through artificial insemination, only one member of the couple was considered the legal parent of the resulting child at the moment of birth. Today, in a small but growing number of states, this is no longer the case. Instead, in this small group of states, from the moment of birth, both members of the couple are treated as legal parents of a child born to the couple through artificial insemination. While this advancement in state law is tremendously important for many children, the resulting protections are extremely tenuous. These children are assured protection only so long as they and their families remain in one place, never crossing state lines. This essay explores why this legal vulnerability exists and offers a proposal for mitigating this potentially harmful state of affairs.

June 21, 2010 | Permalink | Comments (0) | TrackBack (0)

Monday, June 14, 2010

In dispute with Philly, Boy Scouts seek to keep special privileges despite anti-gay discrimination

NPR reports on a trial set to begin soon that pits anti-discrimination and First Amendment rights of association:

It's been two years since city officials in Philadelphia threatened to evict the local chapter of the Boy Scouts from the city-owned office space that the group has used rent-free for decades. Officials say the Scouts' policy against openly gay members violates local anti-discrimination laws. The Boy Scouts sued, charging the city with violating the group's constitutional rights


June 14, 2010 | Permalink | Comments (0) | TrackBack (0)

Friday, June 11, 2010

State Dept. liberalizes passport policy for transgenders

The State Department has introduced new policy guidelines on changing the sex marker on American passports.  When a passport applicant presents a doctor's certification that he or she has undergone treatment for gender transition, their passport will be updated to accurately reflect their sex.  Sex reassignment surgery is no longer required to change the gender on an American passport.  More information here from the Transgender Legal Defense and Education Fund, and here are the new policy guidelines.


June 11, 2010 | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 9, 2010

Same-sex marriage fizzles as an issue in Iowa

Last year, bellwether Iowa became the first and still only Midwestern state to authorize same-sex marriage.  Despite predictable conniptions from social and religious conservatives, the NYT reports that the issue just hasn't been very important in the state's politics this year.


June 9, 2010 | Permalink | Comments (0) | TrackBack (0)

Pew examines conscience vs. civil rights: Are health care workers obligated to treat gays and lesbians?

The Pew Forum on Religion and Public Life examines a question around which there's been increasing controversy:

Should doctors, pharmacists and other health care workers have the right to refuse to provide services that conflict with their religious beliefs? Until recently, the debate over "conscience protections" for health care workers centered largely on abortion and birth control. But in the past few years, new cases have emerged that have raised questions about the tensions between individuals' rights of conscience and the need to protect certain groups against discrimination, notably gays and lesbians. These new cases involve health care workers -- in one case doctors at a California fertility clinic, in another case a graduate student in Michigan studying to become a counselor -- who refused to treat gay and lesbian patients because they felt that doing so would compromise their core religious beliefs. While religious organizations and institutions are exempt from certain nondiscrimination laws, there is debate over whether private individuals and businesses should have similar rights. 

To explore this issue, Pew features an interview with professors Ira "Chip" Lupu and Robert W. Tuttle, both of George Washington University Law School.


June 9, 2010 | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 2, 2010

How the Prop 8 court can balance justice and judicial limits

In an issue brief for the American Constitution Society, titled "The Prop 8 Court Can Have it All: Justice, Precedent, Respect for Democracy, and an Appropriately Limited Judicial Role," Rebecca L. Brown, Newton Professor of Constitutional Law at the University of Southern California Gould School of Law, discusses Perry v. Schwarzenegger, in which the United States District Court for the Northern District of California is considering whether the United States Constitution requires states to permit marriage between individuals of the same sex.  

While strong arguments may very well exist for a broad ruling, Professor Brown suggests that the case might also lend itself to a more modest resolution of the claims raised. Proposition 8 was a ballot initiative that originated as a reaction to a California Supreme Court decision interpreting California's Constitution as requiring the state to permit same-sex couples to marry; Proposition 8 subsequently added to the California Constitution a provision that "[o]nly marriage between a man and a woman is valid or recognized in California."  After extensive analysis of case law, the author concludes that the United States Constitution's Equal Protection jurisprudence dictates that Proposition 8 be struck down, since "[a]ny legislation must have a public purpose other than stigmatization," and "no public purpose that could plausibly be served by this retroactive reduction in status has been offered to dispel the usual inference that any act of stigmatization is a violation of the state's obligation to legislate impartially."

While a decision along these lines would not touch upon the breadth of the fundamental right to marry, Professor Brown suggests that this modest resolution of Perry "would fulfill the best expectations we have of the federal judicial role, to resolve the case on strong, unassailable, time-honored, and yet narrow, grounds."  As the author argues:

A ruling of the kind I will advocate would not be an act of minimalism, but neither would it be an act of maximalism.  Rather, this would be an exercise in judicial optimalism -- using good judgment to determine just how much judicial intervention is necessary to vindicate the core and essential purposes of the judicial role, without unnecessarily diverting the course of more widespread social and political movements that are at the heart of healthy and lasting legal change.

June 2, 2010 | Permalink | Comments (0) | TrackBack (0)

Friday, May 28, 2010

Votes in Senate committee and House may spell the end of DADT

The NYT reports:

The House voted Thursday to let the Defense Department repeal the ban on gay and bisexual people from serving openly in the military, a major step toward dismantling the 1993 law widely known as “don’t ask, don’t tell.”

The provision would allow military commanders to repeal the ban. The repeal would permit gay men and lesbians to serve openly in the military for the first time.

It was adopted as an amendment to the annual Pentagon policy bill, which the House is expected to vote on Friday. The repeal would be allowed 60 days after a Pentagon report is completed on the ramifications of allowing openly gay service members, and military leaders certify that it would not be disruptive. The report is due by Dec. 1.


Separately on Thursday, the Senate Armed Services Committee approved a similar measure allowing the repeal. 


May 28, 2010 | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 19, 2010

Another anti-gay, Christianity-professing, marriage-defending GOP politician has an affair and resigns in disgrace

The San Diego Gay & Lesbian News reports: Marksouder-3358

Rep. Mark Souder, R-Indiana, an outspoken “family values” politician who has consistently voted against LGBT issues, has resigned his seat a week after winning his Republican primary seeking re-election.

After callers began bombarding his office with accusations that he was having an affair with a staffer, Souder admitted that he was unfaithful to his wife and announced his “retirement.”

Souder, 59, held a hasty news conference in Fort Wayne, Ind., today to make his tearful confession. He noted that he has “sinned against God, my wife and my family by having a mutual relationship with a part-time member of my staff.”

* * *

Michael Cole, a spokesman with the Human Rights Campaign, noted how Souder was anti-gay.

“Rep. Souder proves once again that it’s not LGBT people who are the threat to ‘family values.’ The good citizens of Indiana would be well served to elect a successor who in both word and deed more closely mirror their own values of equality and respect for all people.”

Cole said Souder has the distinction of scoring a zero on every single Human Rights Campaign scorecard since entering Congress in 1995. He has consistently voted against equal employment protections, common-sense hate crimes laws, increases in HIV/AIDS funding and providing any measure of equality to same-sex couples.

Joe Sudbay of AMERICAblog also blasted Souder.

"Souder has long been a crusader in the House against same-sex marriage. This year, he signed an amicus brief in a case against D.C.'s new marriage law,” Sudbay wrote.

“He also stated, 'I'm a Christian first, a conservative second and a Republican third,'" he wrote.


May 19, 2010 | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 18, 2010

Walter Dellinger on Kagan, gays, and the military

Dellinger explains why Kagan is not anti-military.


May 18, 2010 | Permalink | Comments (0) | TrackBack (0)

Portugal to become sixth European nation to grant marriage equality

The BCC reports:

Portugal's President Anibal Cavaco Silva says he will sign a law legalising same-sex marriage passed by parliament earlier this year.

The law had been fiercely opposed by conservatives in the Catholic country.

The ratification will make Portugal the sixth country in Europe to allow same-sex marriage after Belgium, Spain, Norway, the Netherlands and Sweden.

The announcement comes days after Pope Benedict, on a visit to Portugal, told pilgrims they should oppose the law.

Portugal's Constitutional Court validated the bill last month.


May 18, 2010 | Permalink | Comments (0) | TrackBack (0)

Monday, May 17, 2010

Questions about military ban and sexuality dominate key senators' discussion of Kagan

The chairman and ranking minority member of the Senate Judiciary Committee discussed the Kagan Supreme Court nomination on ABC's "This Week" yesterday with host Jake Tapper, and much of the discussion was about Harvard law school's policy refusing to allow the military to recruit students because the military discriminates on the basis of sexual orientation.  Republican Jeff Sessions thought it was a big deal:

SESSIONS: I have great concerns about that. That went on for a number of years. It was a national issue. People still remember the debate about it. She -- she reversed the policy. When she became dean, they were allowing the military to come back on campus and had been for a couple of years.

TAPPER: But they were always on campus, right? They just weren't using the Office of Career Services.

SESSIONS: Well, look, yeah, this is no little bitty matter, Jake. She would not let them come to the area that does the recruiting on the campus. They had to meet with some student veterans. And this is not acceptable. It was a big error. It was a national debate. Finally, we passed the Solomon amendment. They really didn't comply with it. Eventually, she joined a brief to try to overturn the Solomon amendment, which was eventually rejected 8-0 by the United States Supreme Court, and she was not in compliance with the law at various points in her tenure, and it was because of a deep personal belief she had that this policy, which was Congress and President Clinton's policy--

Chairman Patrick Leahy countered by sidestepping the gay issue and focusing on Kagan's general attitude toward the military:

LEAHY: Well, this is like in Shakespeare, sound and fury signifying nothing. She -- the recruiters were always on the Harvard campus. She's shown her respect for the veterans there. She every year on Veterans Day, she had a dinner for all the veterans and their families who were there at Harvard. Recruiting went on at Harvard every single day throughout the time she was-- she was there. She was trying to follow Harvard's policy. She was also trying to make sure that students who wanted to go in the military could.

Scott Brown, who is a Republican U.S. senator and a member of the Active Reserves -- he's still in the military -- he met with her and left and said he thought she had high respect for our men and women in uniform, and he had no qualms about that. 

Tapper also asked about the amicus brief Kagan had joined challenging the policy:

TAPPER: Well, let's talk about the legal aspect of it, because Chairman Leahy, Senator Sessions points out that when she was dean, she joined a friend of the court brief suing the Pentagon effectively, challenging this law, and it was rejected. That point of view and the friend of the court brief were rejected 8 to nothing by the Supreme Court. That includes Justice Ginsburg, Justice Breyer, Justice Stevens saying Elena Kagan, you're wrong, your side is wrong. Now, it was just a friend of the court brief, but doesn't that unanimous verdict basically show that Kagan was expressing her political beliefs and not looking at the rule of law?

LEAHY: You know, if we had -- if we said that any lawyer who ever filed a brief at the Supreme Court, that they couldn't serve on the Supreme Court because the case lost, half the members who are on the Supreme Court today would not be on the Supreme Court.

She stated a position. She challenged the law. The law was upheld, and she said we will follow the law at Harvard. I don't know what else you could ask for.

Finally, Tapper asked about Kagan's sexuality:

TAPPER: I want to move on to another matter. When -- during the Bork hearings, Robert Bork, Senator Sessions, was asked about his personal views of God, whether or not he believed in God. A lot of people thought those questions went too far. In the last few -- in the last week, we were told by the White House that after a blog post went up at CBSnews.com that incorrectly said that Elena Kagan was not straight -- and again, that is not true -- but Elena Kagan went to the White House, said this is not true, I am straight. How far is too far when looking into a nominee's personal life?

SESSIONS: I think you've got to be careful about that. I don't believe that is a fundamental judgment call on whether a person can be a good judge or not. We need to know how able they are to ascertain the real legal issues in a case and deciding it fairly and justly. Will they restrain their personal political views and follow the law faithfully and serve under the Constitution? That's the fundamental test in personal integrity. So those are questions that go to the heart of whether a person will be an able judge or not.


May 17, 2010 | Permalink | Comments (0) | TrackBack (0)