Kagan Moves to Counter Attacks

By Kenneth Jost
Supreme Court Editor, CQ Press
      Supreme Court nominee Elena Kagan moved quickly on Tuesday [June 29] to refute two lines of attack from Republican senators by promising to leave political views behind if confirmed and denying accusations of anti-military bias because of her actions on military recruiting at Harvard Law School.
      Under friendly questioning from Senate Judiciary Committee Chairman Patrick J. Leahy, D-Vt., Kagan insisted that her opposition to the military’s “don’t ask, don’t tell” policy on service by gays and lesbians never blocked military recruiters from access to students while she was dean. “Military recruiters had access to Harvard students every single day I was dean,” Kagan said.
      But Kagan faced more critical questions from Alabama’s Jeff Sessions, the committee’s ranking Republican. Sessions accused Kagan of violating a congressional enactment, the Solomon Amendment, by denying military recruiters access to the school’s Office of Career Services after the federal appeals court in Philadelphia ruled the law unconstitutional. “Your actions helped create a climate on campus that was not healthy for the military,” Sessions said.
      Kagan insisted that she was trying to ensure military recruiters access through a student veterans’ group while at the same time enforcing the school’s policy requiring legal employers to sign a pledge of maintaining anti-discrimination policies in hiring. She also acknowledged that eventually the Supreme Court upheld the Solomon Amendment, which barred federal aid to schools unless military recruiters had access equal to that of other employers.
      Republican senators used their opening statements on Monday to help frame the military issue along with suggestions that Kagan would be an “activist” judge if confirmed. Sessions picked up on the theme on Tuesday by asking Kagan about comments from friends, including former White House counsel Gregory Craig, characterizing her as a “progressive.”
      “I’m not quite sure how I would characterize my political views,” Kagan answered. But, she continued, “my politics would have to be . . . completely separate from my judging.”
      Later, Kagan also turned aside a friendly question from Sen. Herb Kohl, D-Wisc., asking her, “Where are your passions?” Kagan answered: “It would not be right for a judge to come in and say I have a passion for this or that.”
      After sitting silently on Monday through roughly three hours of opening statements from the committee’s 19 senators, 12 Democrats and seven Republicans, Kagan used her first opportunity to speak late in the afternoon to deliver a generally phrased opening statement pledging to decide cases “modestly,” “fairly,” and “impartially.”
      On Tuesday, Kagan appeared comfortable and confident as senators began 30-minute rounds of questioning each, alternately friendly from Democrats and critical from Republicans. At times, Kagan joked with senators, just as she had done with Supreme Court justices at times in some of her six arguments as solicitor general before the court.
      When asked about her 1996 law review article describing Supreme Court confirmation hearings as “vapid,” Kagan jokingly said that she had been reminded of the article many times in recent days. Kagan said that the “basic points” of the review, which called for nominees to be more forthcoming, were “right.” But she added, “In some measure I got some of the balance off.”
      Kagan proceeded to skirt many of the senators’ questions. But she did answer directly on the impact of the Supreme Court’s decision on Monday extending Second Amendment protections to state and local gun control laws. “That is binding precedent,” she told Leahy. “That is settled law.”
      Later, when Sen. Dianne Feinstein, D-Calif., asked about the court’s 2007 decision upholding a federal ban on so-called “partial birth abortions” without an exception permitting the procedure to protect a woman’s health. Citing previous court rulings, Kagan said, “I do believe the continuing holding . . . is that women’s life and health have to be protected in abortion regulation.”
      Kagan also gave a direct answer on the issue of televising the Supreme Court. “It would be a terrific thing to have cameras in the courtroom,” she said. “It would be great for the court and great for the American people.”
      On constitutional doctrine, however, Kagan skirted a question asking her to choose between Justice Antonin Scalia’s “originalist” approach to interpreting the Constitution and retired Justice David H. Souter’s approach of adapting the Constitution to changes over time. “I don’t think this is an either-or choice,” Kagan said. “In some cases looking to the original intent is the determinative [factor]. In other cases, it is likely not to be.”