On the recordJuly 19, 2010
I wish to speak on a very serious issue relating to the confirmation of Solicitor General Elena Kagan for the Supreme Court of the United States. As I was preparing for her hearings, I noted what struck me as a disturbing decision she had made as Solicitor General shortly after taking that position, in a case called Witt v. Department of the Air Force. In that case, a former member of an Air Force Reserve unit in Washington State sued the government to challenge the "don't ask, don't tell" law, which essentially says openly homosexual persons may not serve in the U.S. military. The case was dismissed by the district court, and the military was allowed to proceed with its policy. But when it was appealed to the Ninth Circuit, that very liberal court of appeals overturned the district court and said the case should go to trial and announced an unworkable legal test that the lower court must apply and that the government would have to meet for the "don't ask, don't tell" statute to survive constitutional challenge.
