pursuit of the aha moment. you know what they say, that it's patriotic. thank you. >> thank you very much, miss gibbons. our next witness is an army veteran deployed to afghanistan in 2003 and 2004 as a member of the california army national guard. he has served as director of military outreach for the foundation and is a native of

having worked closely with the

legislative to democrat to the amendment, i can speak with the tent. the goal was to be no institutional support for the military on campus. as a supreme court unanimous ruling on the solomon amendment -- in order for a law school and its maturity to receive federal funding, the law school must offer military recruiters the same access to its campus and students that provides to the non-military recruiter receiving the most favorable access. amendment are factually false for two primary reasons. dean kagan admitted to break laut in a letter she wrote to the harvard law school community. to abbreviate her clarity, although the court's decision meant no injunction applied. my hope in taking this action is that did the department would choose not tonforce the solomon amendment.

as the military has long known, hope is no method. in dean kagan's case her hope demonstrates a total disregard for the rule of law. second, separate, but equal is quite simply n equal. full-time students who act as part-time volunteers will never be able to compete with harvard law's paid full-time staff and the institutional mite it brings to bear. as the harvard law school veterans association indicates, quote, we possess neither of time, nor resources nor advertise extensively for outside organizations. to illustrate this point another way, image dean kagan at the lunch counter. what she said to the military, sure, you're welcome here, but would you be so kind as using the back door by the garbage. you don't mind eating in the kitchen, dou you? >> to the americans who hold unfavorable views of the

military, most favorable mean particularly in a post-9/11 environment that dean kagan would have harvard law class rm each smefter an encouraged every eligible young adult to take the oath and support and defend the constitution of the united states against all enemies foreign and domestic. to defend the barriers the military recruiters didn't suffer or military recruiting didn't suffer completely misses the point. a consistent policy of institutional support, namely most favorable access that the solomon amendment demands would increase the ranks of those interested in serving. just imagine how many more of the school's 1900 student would answer the defense department's call if they were asked as routinely by other employers. they represent all, but the most bye but serving. i would not have joined the army if my father had not encouraged me to do so.

clearly aye estranged the students of harvard law school from the military. dean kagan's actions deem the military not worthy so much as to gher up the crumbs under harvard's table. in all during a time of war after thousands of innocent americans were murdered on our soil, all the defense department humbly requested was equal access. neither dean kagan and harvard is above the law, even though they acted as though they are. as tthe text of constitution and the laws and her ability to judge impartially especially when she's presented legal claims that do not suit her ideological tastes. what signals do her actions at harvard law school send? dean kagan's refusal to make these uses -- the american people who overwhelmingly support it and not just now, but potentially for decades to come. thank you.

>> thank you very much. did i pronounce that correctly, r? he is the executive director of vets for freedom, an infantry officer in the massachusetts army national guard and an iraq war veteran. he has a b.a. from princeton university and from john f. kennedy school of government. all rrect? >> yes, sir. >> thank you. please go ahead. >> chairman leahy, ranking member sessions and other members of the committe thank you for the opportunity to be here today. it's a privilege to take part in these proceedings. my nye name is pete hegseth, an organization of iraq and afghanistan veterans dedicated to supporting our war fighters and their mission on the battlefield. i received my commission fom princeton univsity in 2003 and has since served two tours in the army. the first in guantanamo bay, cuba and the second in iraq with the 101st airborne division. the infantry captain with the

massachusetts army national guard and a graduate student at harvard university. i'm as a citizen and a veteran and do not speak at all on behalf ofhe military, but i'm going to start with the bottom line up front as we do in the army. we're a nation at war. a nation at war with a vicious enemy on multiple fronts. i've seen this enemy first hand. as have precious few from my generation. the enemy we face detests and seeks to destroy our way of life while completely ignoring and exploiting, for that matter, the rule of law. this context motivates my testimony today. i've knot serious concerns about elena kagan's actions toward the military and her witness to myopically focus preventing the military from having institutional and access to top-notch recruits eight time of war. i find her actions toward military recruiters at harvard unbecoming a civic leader and unbefitting a nominee to the urz supreme court.

miss kagan is clearly a capable academic and the president has a right to choose who he pleases, but in replacing the only remaining veteran on the supreme court in justice john paul stephens, how did we reach this court in this country when we're nominating a person who unapologetically obstructed the military at time of war. she used her position of authority to impede rather th empower the warors who have fought? who have fallen for this country. i know a numr of my fellow veterans will testify to miss kagan's personal support on harvard's campus and ss kagan has had good things to say about the military which i appreciate, but for my money, actions always speak louder than wds and miss kagan's actions for recruiters, with wars raging overseas undercut the military's ability to fight and win wars and they trump her rhetorical explanning as. general david petraeus calls counter insurgenessy a thinking man's war. it takes the best america has to

offer. in 2004, as you've heard many times already, miss kagan took the law into her own hands in defense of federal law. she can encourage students to protest and impose the presence of military recruiters. these actions coincided with guantanamo bay, cuba. and it's a legal maze. would not the legal situation there and in the courtrooms in iraq and afghanistan be better off with participation of lawyers of harvard law school caliber and don't we believe the best and brightest ould be encouraged to serve? in response to this critique, miss kagan has reached her -- e number of military recruits actually increased during her tenure. let's be clear about that. it increased in spite of miss kagan, not because of her. but i ask a more important question, would that number not

have been even higher had she supported recruiters rather than actively opposing them. to be fair, i don't begrudge miss kagan's opposition to the so-called don't ask, don't tell pop however her fierce and activityist policy, was unnecessarily focused on the military. in e-mails to students and statements to the press, miss kagan slammed and i quote, the military's discriminatory recruitment policy. yet at a legal scholar she knows better than that. she knows the policy she abhors is not the military's policy, but a policy enacted by congress and imposed on the military. in fact, after the law was passed miss kagan went to work for the very man who signed don't ask, don't tell into law, president clinton. for her to call it policy is dishonest and her opposition to military recruiters at harvard law school had the effect of shooting the messenger.

likewise, while miss kagan sought to block full access to military recruiters she welcomed to campus numerous senators and congressmen who voted for the law she calls, quote, a moral injustice of the first order. additionally harvard law school has three ak chemmic chairs endowed by money from saudi arabia, a country where being a homosexual is a capital offense. rather than confront the true legislation or take a stance with a country that executes homosexual, miss kaganeroed in on military recruiters for a policy they neither offered nor emphasiz emphasized. in granting a lifetime aye appointment to someone who when it mattered most treated military recruiters like second-class citizens, i urge you to consider this as you consider miss kagan. thank you for the oortunity to address this important topic. >> thank you very much, captain.

and thomas moore is a retired colonel and vietnam veteran. he flew 85 combat missions in vietnam and they were over north vet yam where he spent over five years and was released with operation homecoming in 1973. he received his ba from capital university and from the university of notre dame. please go ahead, colonel. >> thank you, chairman leahy and senator sessions and members of the committee for the opportunity to testify before this committee. i would like toec press my concern regarding the nomination of miss kagan to the supreme court for the following reasons. some of them are referring back to some of the reasons my colleagues have mentioned as well. chief among them is that she has demonstrated a strong bias against the military, particularly while dean of the hafb art law school, largely

over policies concerning the eligibility of homosexuals to serve in the military. as we heard in 1993 congress passed and president clinton signed section 654, among other things, the law provided that the administration could omit ret choirment that persons joining the military make any reference to their sexual orientation, a policy that became to be known as don't ask, don't tell. in 1995 miss kagan joined the clinton administration as a associate counsel, but i know of no policy that she had with don't ask don't tell with whether clinton. when she was appointed dean of the harvard law school in 2003 she began to loudly condemn the law calling it a profound wrong and moral injustice of the first order, disregarding the fact that the 1993 law was approved by strong bipartisan majorities in congress. she also knowingly defied the particular law that we've heard about the solomon amendment

which concerns military recruitment. as dean, miss kagan treated military recruiters as second-class citizens and she did not allow the military to recruit an equal basis and called onher students to criticize military personnel. as we've heard on some occasions, she has expressed support for those in uniform, but such superficial gestures could not mitigate her official actions. she apparently was encouraged by a ruling in 2004 by the third circuit court of appeals that the solomon amendment was unconstitutional, but this court had suspend its own ruling pending review by the u.s. nevertheless, in violation of the solomon amendment they restricted military recruiters at harvard law school. in 2005 she escalated from hostile words to activism and claiming harvard law could bar military recruiters because it barred all recruiters who

discriminated against homosexuals. in 2006 this argument with the circuit court ruling was struck down bthe supreme court unanimously. even the most liberal-minded justices rejected miss kagan's decisn. her theories were clealy not what congress had in mind. she later acknowledged that her action were not justified but said that she had acted anyway in the hope that the department of defense would not enforce the law. the issue here is bias and miss kagan's record reveals a persistent bias at least regarding the military. as a citizen, i cannot appoint the justices which law they wish to follow in hopes they would not be enforced. an activist justice would not defer to the other branches of government, particularly the congress. it is more qualified to act on issues concerning the military and what evidence is there that mi kagan has shown an

understanding of the defense department's position regarding homosexuals in the military. the 1993 law clearly states why homosexual activity in the military is harmful to its mission. while stressing that the military is a specialized society, subject to special laws that would not apply to the citizenry at large. those who don't understand the special nature of the military should not be handed authority to make importance decisions that affect it, and i question whether miss kagan has consi consistently applied her principles against homosexuals. her principles did not come to play when president clinton spoke at harvard's commencement or when a member of the saudi ruling family, a person in a position to influence theolicy in saudi arabia which executes homosexuals oped a school on campus and miss kagan did not lift her voice against that.

lastly, i would think that a person so opposed to rules governing the military as miss kagan would encourage rather than hinder participation in the military by her graduates. so they might be part of the composition of the military's leadership and thus would influence military policy. it is unfortunate that miss kagan has the wisdom to demand the military to accept professed homosexuals. in my view she has neither the experience o which to base that wisdom nor the responsibility to deal with the consequences of her conviction. i thank you again, chairman, for this opportunity. >> thank you, colonel. of course, yesterday we -- and i'll be on my timing on, we put into the record a letter from someone currently serving in afghanistan who strongly supports solicitor general kagan. he was at harvard law when she was dean, and we will have the next panel, kurt white who is

the president of the harvard law school armed forces after graduating from west point, they were platoon leader and executive officer in iraq where he earned two bronze stars in 2004 and 2006 and went back to duty in 2007 with the rank of captain and went on to serve in the national guard, currently finishing two graduate degree at harvard. who supports -- who suorts solicitor general kagan. it's nice to have you back in the committee and i appreciate you by educating people about why the supreme court matters and how the decisions in your case need to be overturned by legislation. i hope my friends on the other side will join us in protecting

the workers discriminaton act and they would have the bipartisan support and would need the same out there. after the testimony, miss ledbetter, thanks for helping us overturn an unjust decision. miss ledbetter, yesterday senator klobuchar made a point that people like elena kagan broke the glass ceiling. when you started working how many women managers were there? >> none to my knowledge. i never met any. >> do you know how many women were on the supreme court when your case went before them? >> one. >> how do you think women or young girls in this country who feel solicitor general kagan is confirmed? we have for the first time three

women on the nine-member supreme court. >> i think it would be an outstanding accomplishment for the people across the nation. not only the women, but also their families, and one thing i've heard in watching the hearings, all of her -- elena kagan's responses have been that she would adhere and follow the law, not make the law. she understands what her responsibility would be as a supreme court justice. >> is that why you support her? >> yes, sir. yes, sir. i wish the people on the supreme court, five of those justices, st one more adhered to the law in my case, then my outcome would have been different. >> thank you. >> miss gibbons, you spoke about the life of work on the shore of prince william sound, alaska. you decated your life and a

personal effect on people, the suicides, the demoralized people. all those people, i understand, like the folks in the gulf work very hard, played by the rules and didn't expectnybody else to play by the rules, and in your testimony, you touch on the impact of the exxon case and on your community and you are now one of the litigants in it, so you don't have a financial interest in this. but you see what is done to the people there jt as we see every night on the newshat it's doing to the people down on the gulf. do you think that the supreme court ruling in exxon shipping versus baker has affected public confidence in our justice system? if so, how? >> well, as i mentioned briefly,

t impact that it had on people in my community, what they took away from it is a sense that there is no justice and currently, i work a lot with people in the gulf who are trying to be very supportive of them, and i think there's the same sphere, and when you look at the mistakes that have been made to human errors and the attention on the profit margin. the missed opportunities over and over again to prevent things like this, and i'm also president of the chamber of commerce. i believe in business, and i believe business can do the right thing, but when the laws aren't enforced and the best tool to have corporations accountable and punitive damages are not used in the way that they were intended, then people lose faith, and i would have to say that the people in my community have lost faith. >> thank you vermuch.

my time expired. i'll be putting a letter in the record after, but i yield to senator sessions. thank you, mr. chairman. i thank our military witnesses, with stating the true fact of what happened at harvard was not an itty-bitty matter. it was not a matter that slid into reality and dean kagan was caught somehow in the middle of a controversy. she was a leader, and she was a driving force in the effort and to remove the military from full and equal access to that campus. after the solomon amendment had been passed and is that was required, captain, were you with general petraeus in mosul? >> i was not -- i didn't have the chance to serve under him, no, sir.

>> i was with the 101st there during that time in mosul, and th alabama national guard attached to them, too. you talked about coming in the back door and having captain yogblood, having to dine in the kitchen and not sit out front. do you think that -- you're yale, you're harvard and you're notre da. do you feel that that power, setting aside the up pact it may have had on recruiting sent a message of some kind to the veterans and to the recruiters who they themselves his come off the battlefield and come on that campus? >> oh, that message very clearly is your service to the country and to protect the constitution not valued by these instutions. >> it certainly was not a message of support. i know she met with vetera on

veterans' day and she met occas. that's appreciated by vetera we learned that have vietnam vet did not honor. but a whole other issue to elevate their service, show fellow classmas that, indeed, entering the military, going into the? >> a.g. corps and being an army or air force lawyer is a way to contribute to your country. it's one thing to say it, another thing to do it and i think she made that very clear. >> this, being what familiar with the harvard campus, i understand that the speech she made to a protest, was at the same time a recruiter was in the next building attempting to recruit students. so she made a speech in which she condemned the military policy and spoke outn that fashion. do you think that had been an asset to the recruiter and his effort in the next building?

>> certainly not going to help, sir. also the fact that it wa encourag ta students would sign up for time with recruiters who had no interest in joining the military, to clog the time and clog the rolls so that less actual possible recruits would % have access. that's something ms. gan also is purported to have encouraged. >> well, this veterans' group, do you have any knowledge of it at harvard? >> i've been a member of some veterans' groups. often time wes sit around and drink beers but don't usually bring recrters on campus mpt they didn't a salary or office. they were a group of people that got together on occasion to -- and for -- how do you feel -- from the testimony here about how the veterans association was offered the opportunity to be helpful to the recruiters, how do you judge that as a realistic

explanation for denying him the official ability to utilize the recruiting services and office? >> i just don't think there's any way you could possibly say that that is equal access. you're thrusting it on student with a full work load like anyone else. they didn't sign up to bring recruiters on, don't have the resources, not able to publicize it. students often didn't even know recruiters were there. it's an issue when the office of services, anybody in a university knows that all the folks that come in to offer jobs go through career services. you read the bulletin. look on the screen, see hoop here. you're not accessing a pool of students in any equal way, when you don't have access to that. >> much is made over time about the networking opportunities. i absolutely agree. an ivy league to provide students, and to be shut out when everyone goes to a career

service prevents people from ever considering those careers. >> colonel, thank you for your service, and do you have any comments on that subject? >> you know, actually, the experience i had at notre dame was in direct contrast to what these gentlemen have said for the very opposite reason. notre dame strictly ctholic school, practices e catholic character, just war, et cetera, has a strong rotc center and i saw very well and discussed heatedly with a number of faculty about the position of the military on campus and even issues of war. one of the rempss i made in my testimony, senator, actually comes from the mouth of father ted hessberg. by many standards, not a flaming conservative who believed one of the main reasons to have a strong rotc presence at note dame in the graduate and undergraduate school, those who go into the military and influence the military such as

from their upbringing. >> and my brother-in-law is a teacher, is a holy cross priest and a teacher there for some time. we are trying to keep on a strict schedule and i'm going to turn in the gavel over to senator cardin, with the next person to be recognized wi be senator specter, and if anybody feels they're being consult off, it is, again, because of the extraordinary circumstances of starting this hour, just so that all the others are going to want to testify will have the time to goethe for and against solicitor general kagan. so that's why i'm -- i know you've been waiting patiently, but that's why we're cutting the time. thank you. >> mr. chairman, may i yield to senator durbin and take a turn? >> sir, go ahead, senator durbin. >> well, thanks, senator

specter, an thanks to the panel for your testimony, all of you. i want to especially thank ms. ledbetter and mr. gross, hearings are so technical, so legal, i'm sure at the e of the day, a lot of people think thisill never affect me, but each of you has a story about how it affected you personally and i thank you very much for doing that. ms. ledbetter, we met before, and i congratula you for not giving up after the supreme court. i was there when president obama signed the ledbetter bill and was proud to be a part of that. having worked with the farm bureau, i'm sorry were you a victim of age discrimination and sorrth supreme court, supposed to be a non-activist court, decided to invent a legal theory to deny you recovery. i think that's unfortunate.

ms. gibbons, 1 years ago i was up in prince william sound, right after the spill and saw it. never forget it, as long as i live and i, too, share your skepticism of the promises made on the corporate side and know we need hava court system and a congress that is sensitive to the need to think, as you say, and be thoughtful in wait we approach some of these environmental issues. to the other three witnesses i apologize for stepping out for a moment, but i have read your testimony, and i thank you for being here and thank you for your service to our country. we all appreciate it very much. i'd like to note by way of a question two things that struck me recently. one is the fact we all know so many of our great veterans of world war ii are passing on. time is taking its toll. i? one, joe flynn, part of the d-day invasion, battle of the

bulge. great oldful oh. so proud of his service in world war ii and i don't question for a minute what tom broke coe said, the greatest generation. they served for the duration when they decided to enlist in our armed forces. but there was also another historic event just last week. the 60th anniversary of the beginning of the korean war, and we gathered in statuary hall in one of the first persons to speak was congressman charlie wrangle of new york. congressman charlie rangel was a combat veteran of the korean war. he enlisted in a armyhat was seg gra daregated and he happen serve in korea in combat because of president truman to ingrate our armed forces. i raise that question, because i want to ask one of you, any of you, if you think that we can

honor the greatest generation in our military men who gave so much to our country and still look back with in dismay that it was a segregated force and it wasn't until the koan war that our military was truly integrated? and if you think that you can, and i believe you can, can you understand for a moment how some may have feelings about discrimination in our current military? against those of a different sexual orientation and believe that that discrimination should also be noted and people may want to speak out? i invite your comments. >> senator, i would say that i can understand that certain members of our society would feel excluded because of a particular policy, and many people have different opinions on that policy. my testimony and my issue is the way in which ms. kagan confronted that policy. she could have done so by talking about the wrongs of countries like saudi arabia that

execute homosexuals. she could have taken issue with it by not bringing senators and congressmen who voted for the law she calls immoral long of the first order to campus. there were many different ways she could have zeroed in on that particular policy and instead used the military as the focal point to do it, when these recruiters, they're messengers. they're there 20 recruit -- >> don't disagree with the press that if you feel that there is dirimination in our society and even though you respect the institution, the military of world war i but know there was discrimination that speaking out is not un-american, or inconsistent with our history. is it? >> i'm not calng it un-american. but i think you also have to look into context of the post-9/11 world, where we are fighting a real enemy. and we need recruits and good ones. >> i understand that and i understd the testimony of solicitor general kagan, and you've all noted and see it differently, that during this period of time the recruiters

were on campus with veterans' organizations and actually increased the number of recruits. some you said, well, had maybe more if they'd have done it in a different fashion, but i think it was clear from letters we received from this committee, she is not opposed to veterans. she is not opposed to the military. it was a matter of conscience for her to speak out, i respect her for that. she might have done it differently. we all mht have done tings differently, but in the end, there's no question that she has the greatest respect for th military and her country as i have respect for yourselves. thank you. >> thank you, senator durbin. senator hatch. >> mr. chairma at this -- i appreciate the testimony here today. >> senator klobuchar. >> thank you very much, all of you. and thank you especially for your service and everything you've done for our country. i really appreciate it. i was just going to -- we talked a l about your case during the

questions of solicitor general kagan, ms. ledbetter, and i wanted to just go through some of that. first of all, could you just go through again how you found out how had you to find out that some of your counterparts, your male counterparts were makg more money than did you and got raises that you didn't get? >> yes. i only learned about the discrepancy in my pay after 19 years, and that was with someone leaving me an anonymous note, because otherwise, i would n have known, because goodyear pointed each prohibited each of us fromiscussing our pay or we would not work there. our pay was never discussed and we could not find out. that was the only way i could find out. >> you ha no way of knowing other workers, men, getting more money than you and it kept getting worse and worse as the years go by? >> no, i did not.

i have no way to know. >> then you went to court and won an award saying you could make up that money that you'd lost and then you go to the u.s. supreme court, and what did they tell you? in temple terms of when you we supposed to have found that out? >> according to the response justice alito wrote, he said i should have complained after the first paycheck, that i received that was discriminatory, even though i didn't know that, and no way to prove it. >> so i was wondering, and i know justice ginsburg, something i talked to solicitor general kagan about this, was i suppose, you would have had to be rifling through the drawers of looking at pay stubs or asking your fellow employees how much they were making? is that what you were supposed to do? >> well, i was supposed to do that in order to find out. and had i done that, i would have been fired. >> right. so i think one of the reasons your case, in addition to the obvious wrongs that were righted

by the law that we passed in congress, but i think one of the things that interested me about your case was it was just an example of you, who never thought you'd end up here in the halls of congress, nor i think did any of the other witnesses here. i can see them shaking their heads at the end and wondering if it's that fun, anyway, to be here, but what strikes me most about your case is that you just happened to be in this situation. you ended up going to the highest court in the land, and i think, to me, you are an example of what i talked about, that the decisions have an impact on regular people. when the court mas these decisions. you touched on the fact of who your testimony, through your testimony, that sometimes the law isn't always clear, ms. ledbetter, and that the importance of the court using common sense is very important. and do you want to talk a little bit more about why you think solicitor general kagan, who i

know you're here to testify today, why you think she has that common sense. >> because that's what i've heard her say in these hearings so far is that she would adhere to the law and not be making the law. it's congress' j to change laws and make new laws, a a supreme court justice should adhere to the law and follow the precedent, and i've heard her say, she would follow press dent. i heard senator specter yesterday come in about some of the, two of the last three supremcourt justices that went onthe bench have not ruled according to the way they testified when they were confirmed. >> okay. now, ms. gibbons, i'm always interested in your case not only because of the horrible wrong that happened there, but actually a minnesota law firm represented the fishermen, the plaintiffs in the case. i'm somewhat familiar, actlly read a book on called

"cleaning up" about the case of how long it took and those kinds of thing. what do you think we can learn from what happened? the delay, that 8,000 of the plaintiffs died before getting any of the awards, because of the delay in that case and as you mentioned, the verdictas $5 billion slashed down to $500 million. what are the lessons we can learn in terms of the supreme court and also what we should be doing now with the oil spill in the gulf. >> have you got a couple weeks? >> i have exactly 19 seconds. no. i think you can -- go a little into my time, the chairman will allow. >> 15 seconds. >> well, one of the big problems was after 20 years everything was out of context. the strategy that the lawyers had for their clients was out of context. the climate othe country had changed. one of the things that i think concerns me the most is over that time the u.s. chamber of

commerce had, has a really serious influence on the composition of the court, and as an environmental activist and as president of our local chamber of commerce, i support business, but i think somewhere along the line we forgot that the backbone of the united states is actually small business. in terms of what's going on in the gulf i think we need to look t some of the things that were applied in alaska. our oil response system. our regional citizens advisory councils and those things need to be institutionalized nationwide. i also think it's incredibly important that we institutionalize transparency through public participati in incident command system, in the development of plans. here we have a plan for response in the gulf that, there's nothing there. and citizens can be participating. i think that's the real hope of

transparency. >> thank you very much. thank you. >> thank you very much. senator? >> thank you, mr. chairman. i appreciate all of the witnesses' testimony, as to the first three, i take from the invitation to have them testify the hope that their presence argues for a just heiss would rule for the more results oriented ploy, i cannot imagine. it is precisely the concern i have about the president's nomination in nominating elena kagan, as to the last three i thank you for your service and your testimony. >> let me thank all of our witnesses. i particularly want to thank our three military witnesses for their service to our country. and we very much appreciate you being here. i do want to put in the record letter that was sent to chairman leahy today from zachary craiger, a navy person, in the

navy, in support of dean kagan who was at harvard during the time in question. without objection that would be made part of the record. i also want, during my time, to underscore the point that i said in my opening statements, that the solicitor general kagan's hearing. and than is, i want americans to ge a better understanding of the impact of the supreme court on their everyday lives. and i think this panel has been particularly helpful in that regards. it affects students, their decisions. it affectses certainly workers. it affects consumers and clearly affects those who are fighting for our environment, and i particularly want to thank lilly led beddor and jack gross and jennifer gibbons for putting a face on the issue. we hear statistics, we hear numbers, but we really are talking about the effect on real

people's lives, and we know the name gross and the name ledbetter because of supreme court decisions, but they're real people, as we see here today, who have real emotions and solicitor general kagan said that she wants everyone american to get a fair shake. something that really impress immediate in her opening comments. so i just want to go back to this one more time and give you, ms. ledbetter, and mr. gross, ms. gibbons, a chance to respond as to h you felt when you took your case to the court and were able to prove discrimination, able to get an award, knew that congress had pass add law against gender discrimination, against age discrimination. you had the law on your side and then your case goes to the supreme court, and in one case, ms. ledbetter, the court rules against you, and the other, mr. gross, the court changes the

case in order to take up basically a different matter, but the results were the same. you both were denied your individual justice, but just as importantly, the reason you brought the case is to make it clear tat gender discrimination and age discrimination has no place in america. how did you feel the day you learned about the supreme court decision? >> the day i learned, i was very disappointed, because as you said, the law had been on my side. it supported my case. the equal employment office had supported me all the way to the supreme court, and then those five justices decided i should have complained back in the early days when my pay was first set, even though i didn't know it, and even though i had no way to prove it, and even tugh we were not allowed to discuss or ask about our pay. it was so hard to understand how

they could do that, and the president had alwayseen in other cases that it would have gone in my favor. it was really devastating, because this is a real people, real lives, and it's not easy to swallow this disappointment when they change the law. i felt, in the supreme court, they didn't say i had not been discriminated against. they just said i waited too long. >> mr. gross? >> a couple of things. during the, justice souter made the comment juries are smarter than justices and that kind of rang true. i really ft like the first obligates's our court system trying to sanctify the jur high heard all of the evidence and so all o the testimony, our citizens heard the law.

were able to interpret it. pretty bright iowans. i think discrimination is a little bit like pornography. you may not be able to define it clearly but you know it when you see it and i believe the jury did. secondly when we got to th hearing and we had presented everything that had been briefed, i had personally spent $11,000 just of printing costs for the briefs, once we got there, and we got the argument, solicitor general took afl half of our time and made an argument on our behalf and all of a sudden we were just blindsided. they decided, let's just take off in a new direction. instead of addressing the issue they agreed to take, they said let's go back and look at the entire context ofhe adea, and the language of it, and essentially they just redefined the law. >> thank you. you've already answered that from your community, i think. senator specter. >> thank you, mr. chairman.

captain, i was in rotc myself, and some would say the universitof pennsylvania, you pressed concern about difficulties in recruiting on so-called league campus, and i think what you see very poor, distant, 22ened, first story i went to summer camp one of,000 beds on ne 25ing, 1950, the day of the korean war. we were catholic. we [ inaudible ] supposed to -- wlb we finished or training, they sent us back to school because they wanted to win the war, but i served stateside during the korean war.

and i think the military has to have access. when you deal with the issue of sexual orientation you're on a very sensitive subject, and thinking has evolved upon the matter with the supreme court changing the law, and i have a couple of issues that i'd like you to respond to. one issue is whether sexual orientation has any impact on the ability to serve and the second would be whether even if you disagree with ms. kagan i disagree with quite a few thing, of course, in the last couple days, and i'm thinking about her nomination very carefully. would you say that this one

issue in the context of her overall career would be a disqualifier? take up number one first about sexual reference having any impact on a person's ability to serve, man or woman. >> would say first off, senator, the issue, and this is something i've argued since a student in college, an issue back in the '90s. so long as someone's willing to put their service in the military first, just like everybody in the miller that to do mission comes first. i personally don't have a problem with that, but, again, mission has to come first. if snag arises that disruptses mission, doesn't matter what it is, it could disrupt the mission. congress sets that policy. it's your decision as a member of congress so to do. someone in the military would just salute and drive out smartly. >> well, there are a number of, many things could affect mission, but you think sexual

orientation does? >> again, like i say, if someone's willing to put their service first and worry about the mission first, to me, it's not something that's an issue. >> how about the question of -- of one issue disqualifying a nomiiee from the court? >> well, i think it's not an issue strictly speaking of don't ask, don't tell here. it's more an issue that through her own decision, dean kagan at the harvard law school decided to strictly ignore the law. there was no injunction from a court that had jurisdicon over harvard law school, no one issued a statement or enjoined e d.o.d. from enforcing the law as her letter said, which i read into the record, she strictly acted hoping that she would be able to not have the law enforced. knowing full well that the law was in full force and effect.

so to that i would say, somebody that shows disregard of that nature to a federal law, a law set by this body, is not acting in conjunction or in honoring the rule of law, which she has been on record saying she would honor the rule of law, there's a direct contradiction there, amend secondly, especially in a time of war when there are people out fighting and dying, we have somebody that a flouting the foundation of the rule of law, which is to say our constitution. so that, i do have a serious issue with it. >>hank you for your service, captain youngblood, and captain hegseth and colonel. one question for you, mr. gross. your age discrimination with victory before a jury was reversed by the supreme court, which is, as you characterized did not follow -- i think that

precedent is very important. we've had a lot of discussion in this room about decisives as far as, latin phrase, follow the law, and i've been concerned about nominees talk about stare decisis and then not follow it. chief justice said he would follow it and issued a long letter dpis puting. one of the concerns i have what we do about the nominee whose say one thing here across the street and decide at some other way, and i've been pushing television for a long time as e one thing, if people understand what the court does, and they decide all the questions, there might be some pressure on accountability. i'd like your opinion as a fella

who's been to the supreme court, probably even watched television, whether you they television would have a good impact generally or if we understood what the court was doing, would have someone accountability? >> respond quickly. you can also supplement this by a written response. >> well, there's actually several parts to that question. in general i agree with a lot of what you're sing. i watched a little bit of the hearings. i think there's a consensus among everybody, both parties, that we don't want activist judges. we wann them to follow the law. i've heard it time after time. there does seemto be some partisanship that ernts into that. i don't know if you can find a perfectly unpartisan candidate for is, but i think you have a very tough job on your committee to vent people. that's what we hire you to do, and we're assuming you're going to do the best job that you can.

be as diplomatic as can you. as far as televising things and keeping them open, i think that would be good, as transparent, b but -- >> concise answer. thank you. i thank our witnesses for the testimony and that will conclude the first panel. we will now call up the second panel. senator leahy announcing bawd we unable to do more than one round that we may, there will be some questions propounded in writing to our different panelists. with your cooperation, we may be coming back to you and asking for furth information. i believe the record's open until noon on monday for questions to the witnesses. thank you all very much for being here. >> chairman, i wish to thank all of you. sorry i didn't get to talk to the first three witnesses. i got carried away with a military issue i care about, and ms. ledbetter, good to see you. went part that goodyear plant a lot of time, accorng to my

wife. and congratulations on moving the congresso alter the law. i think in a way that it will be notaloud that kind of thing to happen. >> thank you, senator. >> again, we thank all the witnesses for making the effort to be here. it's certainly important for this process. this is the supreme court of the united states. it's important we get as much information as possible. >> thank you. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2010] >> yesterday the senate confirmation committee wrapped up the hearings for elena kagan. you can watch the video at 10:00 a.m. sunday eastern time. what children's any time on line. go to c-span.org/kagan. yesterday, the casket of west

virginia senator robert byrd arrived in charleston and is now lying in proposed at the state capitol rotunda. elected in 1952, the west virginia democrat died on monday at the age of 92. he was the longest serving member of congress in u.s. history. we will have live coverage of this memorial service later this morning. here is a portion of yesterday's arrival ceremony.

♪ [amazing grace] ♪ >> the president and vice president will speak at the memorial service this morning. that is at 11:30 in charleston, west virginia. we will have live coverage on c- span 2.

the casket is lying in repose at the west virginia state capital which will be open to the public until 9:00 a.m. eastern. a funeral service will take place next tuesday at arlington virginia. robert byrd was 92. available on television, radio,s and online and you can also connect with this on twitter, facebook, and youtube and sign up for our scheduled hiller e- mails @ c-span.org. >> "washington journal" is next. later in the day, we will get an update on mennal health issues facing war veterans. live coverage is said to o'clock eastern. -- is at 2:00 eastern. coming up this hour, a conversation on u.s. immigration policy. after