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Kagan Defends Position On Military Recruitment

Supreme Court nominee Elena Kagan answers questions from members of the Senate Judiciary Committee on the second day of her confirmation hearings on Capitol Hill on Tuesday.
Supreme Court nominee Elena Kagan answers questions from members of the Senate Judiciary Committee on the second day of her confirmation hearings on Capitol Hill on Tuesday.
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Elena Kagan's approach to military recruiting at Harvard Law School took center stage Tuesday at her second day of confirmation hearings to serve on the Supreme Court. In tones at times emotional and steely, Kagan defended her record as dean and expressed respect for those who serve.

"This has been a sort of long process, and sometimes an arduous one," Kagan said. "I only cried once," when she read a favorable opinion piece by Marine Corps Capt. Robert Merrill, a former student now in Afghanistan.

Kagan, the Obama administration's current solicitor general, asserted that "military recruiters had access to Harvard students every single day I was dean."

Senate conservatives have criticized Kagan for her role in reinstating a ban on military recruiters using career services facilities on the Harvard Law School campus because the "don't ask, don't tell" policy toward gays violated the university's anti-discrimination policy. Recruiting was still allowed through student veterans groups. Kagan rescinded the ban on using those offices after the Supreme Court ruled funding could be withheld from universities that barred military recruiters.

"I'm confident that the military had access to our students and our students had access to the military throughout my entire deanship," Kagan told senators. "That's incredibly important because the military should have the best and brightest people it should possibly have in its force. ... This is the most important and honorable way any person can serve his or her country."

Sen. Jeff Sessions (R-AL) pressed Kagan on her longstanding hostility toward "don't ask, don't tell," which Kagan again said she opposed.

But Kagan challenged the GOP lawmaker’s mastery of some of the details and insisted that the Harvard approach to military recruiters balanced competing interests.

Pressed On Military

Sessions said that Kagan and Harvard "mishandled" the military recruiting issue and said there was "an increasingly hostile atmosphere" toward the military on the campus during her tenure.

"I do believe the actions you took helped create a climate that was not helpful to the military," Sessions said. "What I am having difficulty with is you taking steps to treat the military in a second class way."

Sessions went so far as to say that Kagan's tone was "unconnected to reality."

Yet Kagan stood her ground, replying that the military recruiting numbers never decreased during her time as the law school’s dean.

"I respect and even revere the military," Kagan said. She said she "always tried to make sure" the military had been treated fairly at Harvard.

The Role Of A Judge

Sessions also tested whether Kagan's progressive political beliefs would creep into her work on the court. Republicans have emphasized that argument by picking out documents Kagan wrote as a domestic policy adviser in the Clinton White House and her work as a clerk to Abner Mikva and the late Supreme Court Justice Thurgood Marshall.

Kagan allowed that she had worked in two different Democratic administrations. But she gave little more ground.

"Sen. Sessions, I know my politics would be, must be, have to be completely separate from my judging," Kagan said.

Under friendly questioning from Senate Judiciary Chairman Patrick Leahy (D-VT), Kagan gave some insight into her approach to judging, saying that the framers of the Constitution wrote language meant to be interpreted over time.

Kagan cited the need, for example, for shifting interpretations of the Fourth Amendment, which covers unreasonable searches and seizures.

The framers "didn't live with bomb-sniffing dogs and heat-detecting devices ... and all these questions that everybody is struggling with," Kagan said. "Sometimes they laid down very specific rules; other times they laid down broad principles. Either way we apply what they say, what they meant to do, so in that sense we are all originalists."

With a smile, Kagan interrupted Leahy, "just to show my commitment to being open," she said.

The nominee seized the moment to address a 1995 book review article, in which she lamented that Supreme Court confirmation hearings all too often descended into "vapid and hollow" shows.

"I still think the basic points of that book review were right," Kagan said. "The Senate has a very significant role to play in picking Supreme Court justices -- that it's important who serves on the Supreme Court, that everybody should treat it as important, and that the Senate has a constitutional responsibility and it should take that responsibility seriously. And also it should have the information it needs to take that responsibility seriously. And part of that is getting some sense, some feel of how a nominee approaches legal issues, the way they think about the law."

But Kagan quickly added that there are firm limits to the principle of disclosure. It's inappropriate for a nominee to address how she might rule on pending cases, and just as wrong for a lawmaker to demand answers about cases that might come before the court in the future, she said.

Rulings On Guns

Leahy, a self-described gun owner, also brought up the Supreme Court's 5-4 ruling Monday that the Second Amendment right to bear arms extends to states and localities. Kagan flatly stated that she would accept the high court's gun rulings, even if she might personally disagree with them.

"Is there any doubt after the court's decision ... that the Second Amendment to the Constitution secures a fundamental right for an individual to own a firearm and use it for self-defense in their home?" Leahy asked.

"There is no doubt, Senator Leahy," Kagan replied. "That is binding precedent entitled to all the respect of binding precedent in any case. So that is settled law."

The Vermont senator also gave Kagan an opening to explain that issues she advocated in President Bill Clinton's White House were his, not her own.

"I worked for Bill Clinton and we tried to implement his policy views and objectives," she said.

Stepping Aside

Sen. Herb Kohl (D-WI) pressed Kagan about her desire to serve on the court, and the issues that most animated her. "Where are your passions?" Kohl asked. "Tell us how you are going to help the American people if you are confirmed."

But Kagan eluded an invitation to set out a broad personal agenda. "For a judge, it's case by case by case ... thinking about one case at a time, fairly, impartially, objectively," she said.

In other action, Kagan testified that she would recuse herself "from any case in which ... I signed any kind of brief. There are probably about 10 cases on the docket next year in which that’s true.”

The nominee said she would explore whether to step aside from any case in which she "formally approved something" such as a lower court appeal or friend of the court brief.

For the most part, Kagan spoke clearly and calmly. Sitting behind her was White House Counsel Robert Bauer, who is shepherding his first Supreme Court nominee through the Senate.

The Days Ahead

Questioning of Kagan is likely to continue throughout Tuesday and into Wednesday. Later in the week, witnesses identified by the Democrats and Republicans will speak about Kagan's credentials and her candidacy to serve as the current Supreme Court's third female judge.

Kagan's confirmation seems likely, according to legal experts and political analysts, barring an unforeseen slip-up in testimony this week. Copyright 2010 National Public Radio. To see more, visit