Supreme Court nominee Elena Kagan on Tuesday tried fending off sharp attacks from Republicans concerning her handling of military recruiters on Harvard’s Law School campus.
In an intense exchange with Sen. Jeff Sessions (R.-Ala.), ranking member of the Senate Judiciary Committee, Kagan defended her handling of the military recruiters, saying she wanted to make sure the military had access to the students because “the military should have the best and the brightest people.”
Sessions said her explanation was “unconnected with reality,” before he was cut off by the committee chairman.
The exchange came on the second day of her confirmation hearings as Kagan cited the university’s long-standing policy against discrimination as conflicting with the military’s “Don’t Ask, Don’t Tell” policy that prohibits the service of gays and lesbians.
“I do oppose ‘Don’t Ask, Don’t Tell’ and I did then,” Kagan said.
So while she banished the military from the campus’ career services office, Kagan maintained they still had “full and good” access to recruit students through third-party veteran groups.
Sessions said Kagan’s actions deliberately defied the intent of Congress, which required the military be given “equal access,” and that she did not rescind her decision until the university was threatened with the loss of millions of dollars in federal funding.
“I must say I’m a little taken aback by the tone of your remarks, because it is unconnected with reality,” Session said.
Sessions later told reporters he was “really disappointed” with her response and that it did not show “clarity of mind.”
“I’m more troubled today about her nomination than I was yesterday,” Sessions said.
Besides the questioning over her role at Harvard, Kagan spoke of her belief in an enduring Constitution and deflected political labeling of herself as a progressive.
Kagan rejected the notion that “legal progressive,” a label used by former colleagues to characterize her views, was a fair assessment.
“People should be allowed to label themselves, and I don’t know what that label means,” Kagan said.
However, by late afternoon she conceded she has “been a Democrat all my life” and “that’s what my political views are.”
The Constitution, she said, is an “enduring document” that “develops over time” when the court is asked to apply new sets of circumstances that “the framers never dreamed of.”
“The constitutional laws we do live under develops over time,” Kagan said.
Kagan serves as the administration’s solicitor general, and was nominated to the court last month by President Barack Obama to replace retiring Justice John Paul Stevens.
In Monday’s opening statements by the Senate panel, Republicans questioned whether she has the judicial experience for the job, while Democrats praised the 50-year-old as a refreshing change for the bench.
Though questioned sharply Tuesday on issues ranging from gun control to campaign finance by Republicans on the committee, a Republican filibuster looks unlikely and Kagan is expected to be confirmed after the July 4 recess.
Asked about the Supreme Court’s landmark ruling Monday upholding the constitutional right to own a gun, Kagan called it “binding precedent.”
“That is settled law,” Kagan said.
Asked about the death penalty, she also called it “established law” and that she had “no moral qualms about it.”
She smiled widely for photographers by day’s end, as opposed to her first day in front of the committee when she sat stoically as the senators made opening statements for more than three hours.
She joked with members on both sides of the aisle, especially when they reminded her throughout the day of an article she wrote 15 years ago describing confirmation hearings as taking on “an air of vacuity and farce” when nominees refused to engage in legal discussions, claiming it might have bearing on future court cases.
“It’s been a half hour since I heard about that article,” she responded to one senator, while looking at her watch.
Despite her past criticisms, it did not prevent her from doing the same and withholding her opinions on such issues as the court’s decision that settled the Bush/Gore election in 2000, and whether Miranda rights should be withheld from suspects arrested in the U.S. on terrorism charges.
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