Vice President Biden: No 'Anti-Military Bias' in Elena Kagan's Decision as Harvard Law Dean

WASHINGTON, May 11, 2010 — -- Vice President Joe Biden today defended Solicitor General Elena Kagan's decision to block military recruiters from campus as dean of Harvard Law School, even as Republicans such as Sen. Jeff Sessions condemned her decision.

"She was right" in making that decision, Biden said on "Good Morning America" today. "This is not a single bit of anti-military bias."

Biden said he agreed with Kagan that "Don't Ask Don't Tell," which prevents those who are open gay and lesbian from serving in the military, is a "very bad policy."

Sessions argued that Kagan's decision was in conflict with the Solomon Amendment, a federal law first passed in 1994 that denied some funding to institutions that prevent military recruitment on campus. The Alabama senator said it was "unthinkable" to him that Kagan, who was nominated Monday by President Obama for Supreme Court justice, would block military recruiters from campus just because she disagreed with the government's "Don't Ask, Don't Tell" policy.

"I believe she absolutely was wrong," Sessions said on "Good Morning America."

"I think she's going to have to answer that" in the confirmation hearings," he added. "I don't say that's the only thing that would affect my vote, no. But it's a sore spot with me because I worked hard to pass the Solomon amendment to try to make sure we ended that practice, and she resisted it even after it passed."

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Harvard Law School for years banned the U.S. military from recruiting on campus, except through Harvard Law School Veterans Association. It overturned the policy in 2003 because of the Solomon Amendment. Kagan, who has spoken openly against "Don't Ask Don't Tell," kept that revised policy but then signed onto a coalition of universities that challenged the Solomon Amendment as unconstitutional in court. In 2004, after a court's ruling for the coalition, Kagan reinstated the ban. But the Supreme Court ruled for the Solomon Amendment in 2005, forcing Kagan to turn back that policy.

Sessions also questioned Kagan's political affiliations and experience.

"We know she is a very active political Democrat on the left side of the Democratic party, so we need to be sure those political views are not going to infect her judicial rulings when she puts on that robe," he said.

An overwhelming majority of Republicans voted "no" on Kagan, 50, for solicitor general and many are expressing skepticism about her lack of judicial experience and controversial views.

"This is a weak background as far as the kind of proven experience as a disciplined lawyer or judge," said Sessions, the ranking minority member on the Senate Judiciary Committee. "This lady is not disqualified. I'm just saying her background is clearly thin."

Biden argued that Kagan's not serving as a judge, like most other Supreme Court justices, should not be a "deal breaker." He cited the examples of Justices William Rehnquist and Thurgood Marshall as some who hadn't had that kind of judicial experience.

"Thank God there have been people other than just circuit court of appeals judges," he said. "I think it is a great asset she has, and she is unquestionably academically qualified. ... She is supremely qualified."

"She is Main Street," Biden added. "This is a woman who has lived in the real world."

Republicans acknowledged that they will unlikely to be able to block Kagan's nomination to the Supreme Court, but they will put up quite a fight and Sessions said today it is premature to say the confirmation will be easy.

"This is a confirmation process, not a coronation," he said.

Sessions said the biggest question Republicans have, given Kagan's lack of trial experience, is whether she will be "committed to the law." But he would not say whether he will vote for or against her.

"We need to know is she committed to the law or does she share the view of some that judges can divine social changing circumstances or international law to alter the meaning of the words of our Constitution?" he said.

'No' Votes Lining Up

The biggest hit came Monday from Sen. Jim Inhofe, R-Okla., who, six hours after Kagan's nomination was announced, said he will vote against. He said Kagan showed "poor judgment" as dean when she made the decision on military recruiters and cited "her lack of impartiality when it comes to those who disagree with her position."

As Inhofe already has, Republicans are sure to bring up a 1995 article Kagan wrote in the Chicago Law Review, in which she said the process for confirming Supreme Court justices had become a "vapid and hollow charade" because senators don't pressure nominees to answer questions about their political philosophies.

That could make it a little harder for her to dodge Republican questions on a range of hot button issues, including abortion, gay marriage and terrorism.

Kagan's views on abortion are largely unknown, but documents from the Clinton Library reviewed by the Associated Press, including a memo she wrote in 1997, urged President Clinton to support a ban on so-called late-term abortions, except in cases when the health of the mother was at risk.

At the time, some abortion rights groups opposed the ban, but Clinton supported it as a way to fight a tougher ban proposed by Republicans.

Some Republicans, however, are open to having Kagan on the bench.

Sen. Orrin Hatch, R-Utah, one of seven Republicans who voted for Kagan for solicitor general, said he's keeping an open mind but cautioned that his vote for her then doesn't automatically mean he will vote for her again.

"My conclusion will be based on evidence, not blind faith," Hatch said. "Her previous confirmation, and my support for her in that position, do not by themselves establish her qualifications for the Supreme Court or my obligation to support her."

Sen. Jon Kyl, R-Ariz., who also voted for Kagan for solicitor general, said, "A temporary political appointment is far different than a lifetime appointment to the Supreme Court

Even as they gear up for a tough confirmation battle, top Republicans in the Senate and White House officials acknowledged that barring any unforeseen development, Kagan is almost certainly going to be confirmed as the next Supreme Court justice, most likely before the start of the next Supreme Court session in October.

"I am confident that she will be confirmed," senior White House adviser David Axelrod said in an interview with ABC News' Jake Tapper. "If she's judged on the merits, she will be judged overwhelmingly."

If confirmed, Kagan will become the fourth woman ever to sit on the nation's highest court and mark the first time three women have shared the bench at the same time.

ABC News' Devin Dwyer contributed to this report.