Video: Kagan faces second day of questioning

  1. Transcript of: Kagan faces second day of questioning

    MEREDITH VIEIRA, co-host: Elena Kagan , President Obama 's nominee for the Supreme Court , will be in the hot seat on Capitol Hill today, one day -- day two of her confirmation hearings. NBC 's Kelly O'Donnell is there. Good morning to you, Kelly .

    KELLY O'DONNELL reporting: Good morning, Meredith . The niceties of the first round are behind us now, and everybody can get past all of their prepared comments and get right to the questions and answers. Republicans have laid out all of their arguments, and if confirmed, Kagan says she could be fair. Weeks after her nomination, seated in silence for hours, finally Elena Kagan gets to make her case.

    Senator MITCH McCONNELL: Do you solemnly swear?

    Ms. ELENA KAGAN: I do.

    O'DONNELL: The 50-year-old top lawyer representing the US government first described herself as a daughter of the American dream .

    Ms. KAGAN: My mother didn't speak a word of English until she went to school.

    O'DONNELL: Kagan said she would make only one promise.

    Ms. KAGAN: And I will do my best to consider every case impartially, modestly with commitment to principle and in accordance with law.

    O'DONNELL: No surprise, Democrats praised her intellect and the chance to broaden the Supreme Court .

    Sen. McCONNELL: If she is confirmed, Solicitor General Kagan will bring the Supreme Court to the historical high water mark .

    Senator DIANNE FEINSTEN (Democrat, California): An even-handed, legal scholar with a sterling reputation.

    Senator CHUCK SCHUMER: She is straight out of central casting for this job.

    O'DONNELL: Saying they would be respectful...

    Senator JEFF SESSIONS: Ms. Kagan has never tried a case before a jury.

    O'DONNELL: ...Republicans did not hesitate to get tough.

    Unidentified Man #1: Your relatively thin record clearly shows that you've been a political lawyer.

    O'DONNELL: From abortion rights to immigration, they found various ways to call her liberal.

    Unidentified Man #2: Manhattan 's Upper West Side , Princeton University , Harvard Law School , and the upper reaches of the Democratic legal establishment.

    O'DONNELL: Not pure party line, Wisconsin Democrat Herb Kohl raised concerns.

    Senator HERB KOHL: But we have less evidence about what sort of judge you will be than on any nominee in recent memory. Your judicial philosophy is almost invisible to us.

    O'DONNELL: Republican Lindsey Graham reached out.

    Senator LINDSEY GRAHAM: Be as candid as possible, and it's OK to disagree with us up here.

    O'DONNELL: While at Harvard , Kagan was the first woman law school dean. Her challenge to military recruiters there over the "don't ask, don't tell" policy is already a contentious issue.

    Sen. SESSIONS: Her actions punished the military and demeaned our soldiers as they were courageously fighting for our country in two wars overseas.

    O'DONNELL: And today's unusual because Kagan is not the only high-profile nominee here. General David Petraeus gets under way with his confirmation in his new job running the war in Afghanistan . While he is expected to get through quickly, we do expect there to be a fierce debate over the strategy on the war and if that 2011 exit date still stands. Matt:

    LAUER: All right, Kelly O'Donnell on Capitol Hill this morning. Kelly , thank you very much .

By
updated 6/29/2010 5:27:22 PM ET 2010-06-29T21:27:22

Supreme Court nominee Elena Kagan clashed Tuesday with a Republican senator over the limits she ordered on military recruiters while dean of Harvard Law School, repeatedly denying she blocked them as she sought to deflect foes' efforts to slow her apparently smooth road to confirmation.

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Despite a testy exchange with the top Republican on the Senate Judiciary Committee, President Barack Obama's nominee soldiered through her second day of public testimony on Capitol Hill apparently in good shape to win Senate approval — barring a major gaffe — in time to take her seat before the court opens a new term in October. If confirmed, Kagan, 50, would succeed retiring Justice John Paul Stevens

Republican foes weren't giving up quietly. Sen. Jeff Sessions of Alabama said he emerged from the long day of questioning more "troubled" about Kagan's nomination than he had been previously. During his sometimes heated back-and-forth with Kagan, Sessions said her decision to bar recruiters from the law school's career services office over the Pentagon's prohibition on openly gay soldiers was "punishing" the military at Harvard, treating them in a "second-class way" and creating a hostile environment for the military on campus.

Kagan said she was trying to balance Harvard's nondiscrimination policy, which she believed "don't ask, don't tell" violated, with a federal law that required schools to give military recruiters equal access as a condition of eligibility for federal funds. She said she welcomed the military, and believed her policy of requiring recruiters to work through a student veterans group — first set by a predecessor — was a valid compromise.

"We were trying to make sure that military recruiters had full and complete access to our students, but we were also trying to protect our own antidiscrimination policy and to protect the students whom it is ... supposed to protect, which in this case were our gay and lesbian students," Kagan said.

Sessions rejected her version of events and accused Kagan of defying federal law because of her strong opposition to the military's treatment of homosexuals.

"I know what happened at Harvard. I know you were an outspoken leader against the military policy," Sessions said "I know you acted without legal authority to reverse Harvard's policy and deny those military equal access to campus until you were threatened by the United States government of loss of federal funds."

Kagan was less willing to mix it up with Republicans who closely questioned her on controversial legal topics.

The nominee, who once wrote a strongly worded article denouncing Supreme Court nominees for dodging questions at confirmation hearings, herself refused repeatedly to be pinned down on specific legal issues, her political views or even the passions that animate her to seek a place on the court.

She did call recent Supreme Court rulings upholding gun rights "binding precedent," and she said the court's rulings mandate that in any law regulating abortion "the woman's life and the woman's health have to be protected." She said a 5-4 decision this year that said corporations and unions were free to spend their own funds on political activity was "settled law."

But she was less forthcoming when asked whether she thought that campaign finance case, which she argued for the Obama administration and lost, had been wrongly decided.

"I did believe we had a strong case to make. I tried to make it to the best of my ability," she told Sen. Orrin Hatch, R-Utah, who questioned her in detail about Citizens United v. Federal Election Commission.

She also said none of her work arguing the government's cases before the Supreme Court — she was Obama's solicitor general until last month — should be interpreted as reflecting her own positions.

"I want to make a clear distinction between my views as an advocate and any views I might have as a judge," Kagan said.

Across hours of testimony before the committee, Kagan declined to weigh in on virtually any substantive question posed to her, eluding GOP efforts to label her ideology as well as one Democrat's seemingly friendly bid to get her to open up about why she wants to be a justice.

"What motivates me is the opportunity to safeguard the rule of law," Kagan said under questioning by a visibly frustrated Sen. Herb Kohl of Wisconsin, who asked her about her passions. "I think I will take this one case at a time if I'm a judge. It would not be right for a judge to come in and say, 'I have a passion for this or that. ...' This isn't a job, I think, where somebody should come in with a substantive agenda."

Later, asked to talk about the justices she most admires, Kagan again dodged, saying it would be a "bad idea" to talk about those currently on the bench. "My oh my oh my," Kohl said, deprived again of an answer as the hearing room erupted in laughter.

Kagan did, however, express admiration for the late Justice Thurgood Marshall, the court's first African-American, whom Republicans have held up as a prime example of a judicial activist.

"I love Justice Marshall. He did an enormous amount for me," Kagan said of the man for whom she once clerked. "But if you confirm me to this position, you will get Justice Kagan. You won't get Justice Marshall, and that's an important thing."

Kohl also failed to persuade Kagan to say whether she agreed with Justice Antonin Scalia's view that the Constitution should be interpreted solely based on its text or with former Justice David Souter's contention that it should be viewed in terms of its words' "meaning for living people."

"I don't really think that this is an either-or choice," Kagan responded.

Asked by Sessions whether she considered herself "a progressive in the mold of" Obama or a "legal progressive," as one of his top aides has called her, Kagan said she'd rather choose her own labels, but declined to give herself one.

"I'm not quite sure how I would characterize my politics, but one thing I know is that my politics would be, must be, have to be separate from my judging," Kagan said. "I've served in two Democratic administrations. You can tell something about me and my political views from that."

Kagan stayed mostly calm throughout hours at a witness table, showing glimmers of humor but hardly ever veering off-script as she fielded questions on sometimes uncomfortable topics.

"You're doing well," Hatch assured her after her intense debate with Sessions on military recruitment. "Relax as much as you can."

Asked by Sen. Dianne Feinstein, D-Calif., for a "heart-to-heart talk," Kagan gamely replied, "Just you and me," to laughter from a hearing room filled with spectators, reporters and news cameras.

Kagan, the former law school dean, sometimes seemed to be teaching an introductory course in constitutional law.

She called the Constitution an "enduring document."

It has some "very specific provisions — it just says what you're supposed to do and how things are supposed to work," she said. But she added that other provisions "were meant to be interpreted over time to be applied to new situations and new contexts."

Copyright 2010 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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Photos: Elena Kagan, Supreme Court-bound?

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  1. In this image released by the White House, shows 9-year-old Elena Kagan, left, with her family on Jan. 24, 1970. (AP) Back to slideshow navigation
  2. Elena Kagan selected a quotation from former Supreme Court Justice Felix Frankfurter to accompany this photo from 1977 in her Hunter College high school year book: "Government is itself an art, one of the subtlest of arts." (Ellen Purtell / Hunter High School via AP) Back to slideshow navigation
  3. In this undated photo released by Hunter College High school, Kagan, second from left in the front row, poses with members of the student government in the school's 1977 yearbook. Kagan, wearing a robe and holding a gavel, was the student council president. (Ellen Purtell / /Hunter High School via AP) Back to slideshow navigation
  4. Elena Kagan, standing, served as editorial chairman for The Daily Princetonian while she studied history as an undergraduate at the university. The New York City native graduated in 1981. (Courtesy of The Daily Princetonian) Back to slideshow navigation
  5. Kagan graduated in 1981 summa cum laude from Princeton with a degree in history. (Courtesy of Princeton University) Back to slideshow navigation
  6. Kagan joined the University of Chicago Law School faculty as an assistant professor in 1991 and served as a tenured professor from 1995 to 1997. (AP) Back to slideshow navigation
  7. In this 1992 photo provided by the University of Chicago Law School, Elena Kagan, left, then an assistant professor at the university, participates in the law school's faculty-student trivia contest with Daniel Shaviro, former law school professor, now with New York University. (AP) Back to slideshow navigation
  8. In this 1993 photo provided by the University of Chicago Law School, assistant professor Elena Kagan plays in a softball game. (AP) Back to slideshow navigation
  9. In 1999, Kagan, who earned her law degree at Harvard University, returned to the campus as a member of the faculty. This photo provided by the university shows Kagan in 2003 when she was the law school dean. (Harvard University via AP) Back to slideshow navigation
  10. Former U.S. Supreme Court Justice Sandra Day O'Connor talks to Solicitor General Kagan during the forum "Striking the Balance: Fair and Independent Courts in a New Era" at Georgetown University Law Center May 20, 2009. (Chip Somodevilla / Getty Images) Back to slideshow navigation
  11. U.S. Solicitor General Kagan addresses the forum "Striking the Balance: Fair and Independent Courts in a New Era" at Georgetown University Law Center May 20, 2009 in Washington, DC. (Chip Somodevilla / Getty Images) Back to slideshow navigation
  12. When Supreme Court Justice Stevens announced his retirement, Kagan's name was quickly floated as a potential replacement. A year earlier, the Senate confirmed her as Solicitor General by a vote of 61-31, with only seven Republicans supporting her. (Jay Mallin / Zuma Press) Back to slideshow navigation
  13. President Barack Obama meets with Solicitor General Elena Kagan in the Oval Office April 30, 2010. (Pete Souza / White House handout) Back to slideshow navigation
  14. Vice President Joe Biden, left, and President Barack Obama, right, applaud as Solicitor General Elena Kagan accepts her nomination to the Supreme Court at the White House in Washington on Monday May 10, 2010. (Jim Watson / AFP - Getty Images) Back to slideshow navigation
  15. Supreme Court nominee Elena Kagan, rides the Senate subway during a day of meetings on Capitol Hill in Washington, D.C., on May 12. (Harry Hamburg / AP) Back to slideshow navigation
  16. Senate Majority Leader Harry Reid meets with Elena Kagan on Capitol Hill on May 12. (Alex Brandon / AP) Back to slideshow navigation
  17. Elena Kagan talks with Sen. Arlen Specter in his office on Capitol Hill on May 13. (Alex Brandon / AP) Back to slideshow navigation
  18. Elena Kagan sits with Sen. Lindsey Graham on May 18 as part of her visits with senators who will vote on her confirmation to replace retiring Justice John Paul Stevens on the Supreme Court. (Mark Wilson / Getty Images) Back to slideshow navigation
  19. Supreme Court nominee Elena Kagan listens to opening statements by members of the Senate Judiciary Committee on the first day of her confirmation hearings on Capitol Hill June 28, in Washington, D.C. Kagan is President Barack Obama's second Supreme Court nominee since taking office. (Pablo Martinez Monsivias / Pool via Getty Images) Back to slideshow navigation
  20. Elena Kagan is sworn in as the Supreme Court's newest member as Chief Justice John Roberts, right, administers the judicial oath, at the Supreme Court Building in Washington, D.C., on Saturday, Aug. 7. The Bible is held by Jeffrey Minear, center, counselor to the chief justice. Kagan, 50, who replaces retired Justice John Paul Stevens, becomes the fourth woman to sit on the high court, and is the first Supreme Court justice in nearly four decades with no previous experience as a judge. (J. Scott Applewhite / AP) Back to slideshow navigation
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