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Kagan insists she didn't block military

Elena Kagan is following the path of every recent Supreme Court nominee in pledging "a fair shake for every American" who comes before the court and stressing her ordinary roots.
/ Source: The Associated Press

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.

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."