Elena Kagan

Senator Jon Kyl, a Republican from Arizona, said he would oppose Elena Kagan’s appointment to the U.S. Supreme Court because she has “a history of ignoring the law when it conflicts with the gay rights agenda.”

Senator George LeMieux, a Republican from Florida, said he thinks Kagan set up a “separate but equal” scenario for military recruiters at Harvard Law School while she was dean there, “but it wasn’t equal.”

And, in an emotional rant, Senator Jeff Sessions, a Republican from Alabama, said Kagan’s actions with regard to military recruiters at “obstructed the mission” of military officers during a time of two wars.

The complaints were a little harsher than those aired during the Senate Judiciary Committee’s confirmation hearing for Kagan in June, but held no surprises. The only surprise of the Senate’s first day of debate on the Kagan nomination was an announcement by Senate Majority Leader Harry Reid –at about 5:50 Eastern Daylight Time—that he was filing a motion to force the nomination to a vote within 36 hours. Such motions are generally used only when a senator has threatened to filibuster a nomination.

Sessions said he was hurt and “a bit uneasy” about the move and that he hadn’t suggested any effort to block a vote.

Reid acknowledged that “no one on the Republican side has even suggested a filibuster,” but he said he wanted to take the action as a precautionary measure to prevent the business of the Senate from being hijacked by a “renegade senator” who might try to hold up the nomination in return from some concession.

Senate Minority Leader Mitch McConnell said the cloture motion was “completely unnecessary.”

“I can’t imagine what incentive anyone would have to create the scenario the Majority Leader is concerned about,” said McConnell. Reid said that, based on Sessions and McConnell’s remarks, he would withhold filing the motion for now.

Reid promised he would let any senator speak who wanted to on the nomination, and more than 20 did so on Tuesday.

Democrats, with one exception, said Kagan has an in-depth understanding of the law and that her judicial views are well within the mainstream. Republicans said she lacks judicial experience and is a liberal activist with a pro-gay, pro-abortion, anti-gun agenda to push.

Reprising comments he made during Kagan’s confirmation hearing, Sessions painted Kagan as an “activist, liberal, progressive, politically-minded judge” who will “advance her causes under the guise of judging.”

He railed at length against her opposition to the federal “Don’t Ask, Don’t Tell” law while serving as dean of Harvard Law School, saying her actions “discriminated” against the military.

Kagan said, during her confirmation hearing, that the limitations she put on the military did not compromise their ability to recruit on campus and that she had a responsibility to defend the school’s policy barring discrimination based on sexual orientation. But Sessions brushed that off as “silly activities.”

He noted that Kagan, as Solicitor General, again undermined the DADT law by “failing” to appeal a preliminary decision in favor of a lesbian challenging the law. He said that decision, in and of itself, was reason to disqualify Kagan for a position on the Supreme Court.

The case in question was Margaret Witt v. Air Force, in which a highly decorated military nurse was discharged under DADT. In a lawsuit led by the ACLU, Witt won a preliminary court victory in 2008 when the 9th Circuit U.S. Court of Appeals ruled she had a right to a trial. Kagan recommended the federal government not appeal that preliminary victory to the U.S. Supreme Court but to wait for the trial and its appeal to be completed.

During her confirmation hearing, Kagan said her decision was based on an assessment that the DADT law would be better defended once a complete record of facts was established through trial. But Sessions contended that Kagan decided not to appeal the decision because she and the Obama administration “expected the Supreme Court would affirm the law.”

“She was punishing the military, really demeaning them,” said Sessions.

Senator Kyl also complained that Kagan did not appeal the Witt decision, saying “there was no reason to develop a fuller record or seek further clarification form the courts.” He said Kagan’s decision not to appeal ensured that members of the military would be “subjected to invasive and humiliating trials” in the Witt case and others and, in doing so, “destroy morale and unit cohesion.”

Kyl criticized Kagan for “double-speak” concerning same-sex marriage, contending that she “distorted” her answer as to whether she believes there’s a constitutional right to same-sex marriage.

Kyl said Kagan, as Solicitor General, did not mount a vigorous defense of the Defense of Marriage Act (DOMA) and, painting with a broad brush, complained that the Department of Justice “undercut the law’s constitutionality” in Smelt v. U.S., a case which has been dismissed. Kyl said the DOJ mounted only a “half-hearted” defense of DOMA in the Gill v. Office of Personnel Management case, recently won by the Gay & Lesbian Advocates & Defenders in a federal district court in Boston. Kyl said Kagan “admitted” to being involved in both cases but “refused” to identify specifically what role she played.

“We will likely never know what Miss Kagan’s advice was in these cases,” said Kyl. “What we do know is that Miss Kagan has a history of ignoring the law when it conflicts with the gay rights agenda.”

Only Democrat Ben Nelson of Nebraska indicated he would oppose Kagan’s nomination.

Senator Dianne Feinstein (D-Calif.) called Kagan a “wise” choice for the high court. A former mayor of San Francisco, Feinstein applauded Kagan’s willingness to bring conservatives to Harvard and praised her for defending DADT despite her personal objection to the law.

Senator Carl Levin (D-Mich.) disputed claims by some Republicans that Kagan’s actions around DADT demonstrated she was “anti-military.”

According to the Washington Post and other sources, five Republican senators have announced plans to vote for Kagan: Lindsey Graham of South Carolina, Olympia Snowe and Susan Collins of Maine, Judd Gregg of New Hampshire, and Richard Lugar of Indiana. The expected vote stands at 55 to 45.

Senate debate is expected to continue Wednesday, followed by a vote on the nomination Thursday.