U.S. Supreme Court nominee Elena Kagan defended her treatment of military recruiters when she was dean at Harvard Law School, saying they had access to students “every single day” and any limitations were aimed at protecting the rights of gays and lesbians on campus.
Kagan said military officials recruited through an off- campus veterans’ group as she enforced a rule barring them from using the law school’s office of career services because the military kept gay people from serving openly.
“Military recruiters had access to Harvard students every single day I was dean,” Kagan said in response to questioning on the second day of her confirmation hearings before the Senate Judiciary Committee. She said military recruiting increased at one point during her tenure, and that she often told alumni and students in the military “how much I respected their service.”
The military recruitment question is one of the major issues facing Kagan, President Barack Obama’s choice to become the nation’s 112th justice. Republicans have used it to question her political leanings.
Alabama Senator Jeff Sessions, the ranking Republican on the panel, told Kagan he believed she treated the military “in a second-class way.” He said, “I’m just a little taken aback by the tone of your remarks, because it’s unconnected to reality.”
Kagan said she opposed the military’s “don’t ask, don’t tell” policy on gay people serving in the armed forces and still does. She called it “unwise and unjust.” The U.S. House of Representatives on May 27 voted to repeal the policy.
Kagan, 50, also got the chance to rebut Republican lawmakers’ criticism that she might put politics ahead of impartiality if confirmed to the high court.
While Kagan said her political views “are generally progressive,” she also said, “my politics would be, must be, have to be, completely separate from my judging.”
Kagan said “there is no doubt” the Supreme Court’s 2008 ruling that the Constitution’s Second Amendment protects an individual right to carry guns is “settled law.” She said she had “absolutely no reason” to think the court’s analysis in the case was wrong.
As a Supreme Court clerk in 1987, Kagan wrote that she was “not sympathetic” toward a man who contended that his constitutional rights were violated when he was convicted for carrying an unlicensed pistol. Kagan said the state of the law had changed fundamentally in the two decades since.
The constitutionality of the death penalty is also “settled law,” she said.
Yesterday, Democrats said Kagan has had an outstanding and varied career and would moderate a court that is favoring big business over legal precedent. The panel’s Republicans accused Kagan of political activism and a lack of judicial experience.
“There are serious concerns about this nomination,” Sessions said yesterday. Kagan, who is now Obama’s solicitor general, has “less real legal experience” than any nominee in at least 50 years and has “barely practiced law,” he said.
Republicans said the burden is on Kagan to prove she would set aside any political agenda if confirmed.
Kagan, in her opening statement yesterday, said she will do her best to “consider every case impartially, modestly.”
Senators today asked her questions on a variety of issues, from campaign finance to the role her parents played in shaping her views. Wisconsin Senator Herb Kohl, a Democrat, asked whether she supported the court’s decision in the 2000 Bush v. Gore case that stopped a recount in Florida and awarded the presidency to George W. Bush.
‘An Appropriate Way’
Kagan didn’t answer directly, saying that the question of when the court should get involved in elections is important and might come before the justices again. “I would try to consider it in an appropriate way,” she said.
The nominee told senators that the framers of the U.S. Constitution anticipated it would be interpreted in light of changes in society, technology and the country at large.
“Part of their wisdom was that they wrote a Constitution for the ages,” Kagan said. Some provisions “were meant to be interpreted over time,” she said.
Kagan said she may have, in an earlier writing, overstated the need for Supreme Court nominees to be forthcoming in testimony about legal issues. “I skewed it too much” toward giving candid answers on settled cases, she said. “That was wrong.”
Obama and the Democrats have criticized the court’s 5-4 ruling this year in Citizens United v. Federal Election Commission, which overturned limits on corporate election spending. Kagan argued the losing side of the case and today said she was convinced of the merits of her side.
Still, she said she would distinguish between her role as an advocate and a judge. “Citizens United is settled law going forward,” she said. She said she would respect the precedent.
Asked about abortion, Kagan said that aside from the court’s 2007 ruling that upheld a ban on a procedure opponents call “partial birth” abortion, the court’s holdings establish that “the woman’s life and the woman’s health must be protected in any abortion regulation.”
Kagan said she supports the idea of placing cameras in the Supreme Court to televise proceedings.
“When you see what happens there, it’s an inspiring sight,” she said.
Kagan, the first female solicitor general, is a heavy favorite to become the court’s next justice, with lawmakers predicting confirmation, barring a major gaffe. Her confirmation by the full Senate would place three women on the Supreme Court at once for the first time in its 221-year history.
Kagan would become the fourth woman to serve on the court. She has never been a judge and worked for four years in the White House when Democrat Bill Clinton was president.
Democrats control 58 out of 99 votes in the Senate, which has one vacancy after the death yesterday of West Virginia Democrat Robert Byrd. Some Republicans, such as Lindsey Graham of South Carolina and Susan Collins of Maine, have said Kagan is qualified.
If confirmed, Kagan, a New York native, would replace Justice John Paul Stevens. Kagan’s confirmation almost certainly wouldn’t affect the court’s ideological balance, which tilts 5-4 for conservatives on most of the divisive issues.