Against Kagan, Conservatives Embrace Empathy Standard.

As Garret Epps has noted, the conservative case against Elena Kagan's treatment of military recruiters at Harvard largely relies on empathy.

During a legal challenge to the Solomon Amendment, which mandates that schools allow military recruiters full access or risk losing federal funding, Kagan applied Harvard's blanket employer anti-discrimination policy to the military because of its practice of excluding openly gay service members; they could recruit on campus, but they couldn't use the Office of Career Services. During the confirmation hearings, Sen. Jeff Sessions has implied that this decision was similar to enforcing Jim Crow segregation, but during yesterday's hearing, the comparison went full-bore.

The first witness, Flagg Youngblood, attacked Kagan's behavior by saying, "Separate but equal is, quite simply, not equal." He referred to Kagan's policy as an "unlawful brand of segregation," offering this analogy:

[I]magine Dean Kagan owned a lunch counter, what she said to the military was, in effect, sure you're welcome here, but you don't mind using the back door by the garbage? You don't mind eating in the kitchen do you?

Notably, many of these statements are absent from Youngblood's prepared remarks, although C-SPAN will have preserved them for posterity. Another witness, Cpt. Pete Hegseth, the executive director of Vets for Freedom, accused Kagan of treating military recruiters like "second-class citizens." Both noted that lack of access to the Career Services Office meant that the campus veterans group was denied resources available to other employers. Neither even attempted to argue that the military's DADT policy didn't violate Harvard's employer anti-discrimination policy.

For his part, Sessions, who once complained about "communist inspired" civil-rights groups "forc[ing] civil rights down the throats of people," reveled in the analogy. "You talked about coming in the back door ... having to dine in the kitchen, not sit out front," Sessions said. "Do you think that policy sent a message of some kind to the veterans and those recruiters who came off the battlefield?"

Of course, this isn't the first time Sessions has invoked segregation during the hearings. He notably compared the Citizens United decision to Brown v. Board of Education -- and while conservatives argue that he merely meant to cite an example of justly overturning precedent, one doesn't cite Brown without the intention of borrowing its moral weight. 

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