Kagan Praised, Assailed; Hearing Ends

By Kenneth Jost
Supreme Court Editor, CQ Press
      The confirmation hearing for Supreme Court nominee Elena Kagan ended late Thursday evening [July 1] with witnesses praising her intellect and her record as dean of Harvard Law School and U.S. solicitor general or attacking her as anti-military and as a likely activist justice if confirmed.
      Only a few members of the Senate Judiciary Committee were present as the 24 witnesses recapitulated positive assessments and sharp criticisms made of Kagan in the seven weeks since President Obama selected her on May 10 to succeed the retiring Justice John Paul Stevens.
      Kagan’s actions at Harvard in limiting official aid to military recruiters because of the “don’t ask, don’t tell” policy on gays in the military continued to be the most concrete criticism from conservatives, echoed by Republican senators. But conservative advocates on Thursday also warned that, if confirmed, Kagan would oppose Second Amendment gun rights, support a constitutional right to gay marriage, and reject abortion regulations.
      David Kopel, a gun-rights advocate and research director for the Colorado-based Independence Institute, said Kagan’s testimony had “raised rather than allayed” concerns that she would not support Second Amendment rights on the court. In her testimony, Kagan said she regarded the Roberts Court’s two pro-gun rights rulings, including the decision on Monday extending the Second Amendment to state and local governments, as “precedent” and “settled law.” Kopel called the answers “platitudes.”
      On gay marriage, Tony Perkins, president of the socially conservative Family Research Conservative, pointed to Kagan’s support of what he called “open homosexuality” in the military as evidence that she would support a constitutional right to recognition for same-sex couples. “We do not need a justice on the Supreme Court who sees it as her life mission to write the Roe v. Wade of homosexual rights,” said Perkins, referring to the landmark abortion rights decision. Kagan declined to address the issue directly in her testimony, saying the issue was likely to come before the court.
      On the abortion issue itself, Catherine Yoest, president of Americans United for Life, pointed to Kagan’s opposition while a White House adviser under President Bill Clinton to a pending bill to bill so-called partial birth abortions. Yoest said her role “demonstrates her hostility to any regulation of abortions.” In her testimony, Kagan denied accusations that as a White House adviser she had acted improperly in trying to reshape statements on the issue by medical groups.
      The conservative attacks were in sharp contrast to high praise for Kagan’s qualifications from the American Bar Association, Kagan’s Republican-appointed predecessor as solicitor general, and former colleagues and students at Harvard. The ABA’s Standing Committee on the Federal Judiciary, which regularly evaluates nominees for federal judgeships, gave Kagan its highest rating of “well qualified.”
      Kim Askew, a Dallas lawyer and chair of the ABA committee, said Kagan’s “professional qualifications” are “exceptionally outstanding in all respects.” Askew stressed that, in line with the ABA’s practice, the group was evaluating Kagan’s professional qualifications only and not taking a position on her confirmation.
      By contrast, Gregory Garre, who served as solicitor general in the last year of President George W. Bush’s administration, appeared as one of eight former solicitors general who had signed a letter endorsing Kagan’s confirmation. Garre gave Kagan high marks for her 14 months as the government’s chief advocate before the Supreme Court and said her service would be “a tremendous asset” on the court.
      The Republican minority on the committee packed its witness list with current or retired military officers to highlight criticism of Kagan’s decision to bar military recruiters from assistance by the school’s Office of Career Services. Kagan said that the action reflected the school’s policy of requiring nondiscrimination pledges by employers but that she also facilitated military recruiters’ access through a student veterans’ group.
      Flagg Youngblood, a captain in the California Army National Guard and former director of military outreach for the conservative Young Americans for Freedom, said Kagan’s testimony was false and her actions in violation of the federal Solomon Amendment, requiring equal access for military recruiters. “A vote to confirm Solicitor General Elena Kagan,” said Youngblood, “is a vote against our military.”
      But Kurt White, a captain in the Army National Guard and president of the Harvard Law Armed Forces Association, called the accusations of Kagan’s anti-military bias “untrue and unfair.” As a student at Harvard Law School, he recalled that Kagan made a point of praising veterans at the first-years’ opening convocation and later invited veterans to dinner at her home on Veterans Day.
      The four-hour session drew only limited attendance, with no more than seven of the 19 senators present at any time. The press tables and radio and TV booths were also largely empty.
      The committee is expected to vote on Kagan’s nomination sometime in mid-July, with a Senate floor vote expected by early August. With Democrats enjoying a 58-41 majority and Republicans having gained only limited traction with their criticisms, Kagan is seen as all but certain to win confirmation, in plenty of time to join the court well before the opening of the new term on the traditional first Monday in October.