WASHINGTON — Supreme Court nominee Elena Kagan maneuvered carefully through tough Republican questioning on military recruitment at Harvard Law School, gun owners’ rights and free speech Tuesday, giving little ground to critics and drawing strong praise from Senate Democrats who command the votes to confirm her.
In a long day of questioning at a hearing that stretched into the evening, Kagan came under fire from Sen. Jeff Sessions, the top Republican on the Senate Judiciary Committee, for her decision as dean of Harvard Law to bar recruiters from the school’s career services office over the Pentagon’s policy against openly gay soldiers. He said that amounted to “punishing” the military services, treating them in a “second-class way” and creating a hostile environment for the military on campus.
Sessions said he emerged from a heated back-and-forth with Kagan on the issue more “troubled” about her nomination than before.
Still, President Barack Obama’s nominee soldiered through her second day of 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 Justice John Paul Stevens who retired Monday.
Under questioning by Sessions, 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 called her version of events “disconnected from reality” 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.”
At least one Republican appeared to have a higher opinion of Kagan.
“Your stock really went up with me,” Sen. Lindsey Graham, R-S.C., told Kagan after she praised Miguel Estrada, one of President George W. Bush’s failed judicial nominees.
Democrats were already in her corner. Said Sen. Sheldon Whitehouse, D-R.I.: “I think that Elena Kagan has been thorough and substantive in her answers.” He said she was “off to a great start — very candid, very thorough, well done.”
The committee called Kagan back today for a second and likely final day of questioning.
Kagan spoke favorably of televising Supreme Court proceedings. “It would be a great thing for the court, and it would be a great thing for the American people,” she said.
But the former law school dean, 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.
Under persistent questioning by Sen. Charles Grassley, R-Iowa, she declined to say how she felt personally about the right to bear arms, but she did call recent Supreme Court rulings upholding gun rights “binding precedent.” She also said the constitutionality of the death penalty was settled precedent, and asserted the court’s rulings mandate that in any law regulating abortion “the woman’s life and the woman’s health have to be protected.” And she said a 5-4 decision this year that said corporations and unions are free to spend their own funds on political activity is “settled law.”
But she was less forthcoming when asked whether she thought that 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. Foes of the spending limits have argued that they impinge on guarantees of free speech.
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 nearly nine hours of testimony before the committee, Kagan declined to weigh in most substantive questions 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.’ “
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,” 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.
Later, she disavowed the term “living Constitution” to describe her approach. “I don’t particularly think that the term is apt,” Kagan told Sen. John Cornyn, R-Texas, adding that she especially didn’t like what people associated it with — “a kind of loosey-goosey style of interpretation in which anything goes.”
On the contrary, Kagan said, judges have a “highly constrained role.”
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.
“One thing I know is that my politics would be, must be, have to be separate from my judging,” Kagan said.
Later, under more friendly questioning by Graham, Kagan called her views “generally progressive.”
“I’ve been a Democrat all my life. I’ve worked for two Democratic presidents, and that’s what my political views are,” she said.
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.”
Democrats said Kagan was being candid and demonstrating why she’d be a good justice.
The hearings, said Sen. Chuck Schumer, D-N.Y., are “showing the American people that you are the kind of person many of us believe you to be — thoughtful and practical and moderate.”
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