WASHINGTON — Supreme Court nominee Elena Kagan on Tuesday fought off Republicans who were trying hard to paint her as a liberal activist, saying she’d be a fair, open-minded justice and refusing to call herself a “legal progressive.”
“I honestly don’t know what that label means,” Kagan told Sen. Jeff Sessions of Alabama.
Sessions, the Senate Judiciary Committee’s top Republican, kept pressing the former Harvard Law School dean, quoting her colleagues to make the point. Kagan wouldn’t take the bait, though.
“My politics would be, must be, have to be completely separate from my judging,” said Kagan, who was a domestic policy adviser in the Clinton administration. President Barack Obama nominated Kagan, who’s now the solicitor general, to replace retiring Justice John Paul Stevens. Since Democrats control 58 Senate seats, and none has signaled opposition to Kagan, her confirmation is expected.
Republicans such as Sessions nonetheless hope to use this week’s hearings to raise public doubts about Kagan and the president who nominated her. In particular, they’re challenging her lack of judicial experience and her past dealings with the military.
Foremost in early questioning Tuesday were Republican concerns about Kagan’s decision to restrict military recruiting at Harvard Law School, while she was its dean, because of the military’s policy banning gays and lesbians from serving openly. Kagan called the policy a “profound wrong” and a “moral injustice of the first order” in a 2003 e-mail.
Under the so-called Solomon Amendment, schools that deny recruiting opportunities to the military can be cut off from federal funding. In 2005, after an appellate court ruled that the Solomon Amendment was unconstitutional, Kagan stopped providing official law school access to the military. The access later was restored, as the Supreme Court unanimously upheld the Solomon Amendment in 2006.
Sessions noted that Kagan’s “runaround” meant that the Pentagon lost a full recruiting season. “I feel like you mishandled that. I’m absolutely confident you did,” Sessions said.
Kagan responded that “the military had access to our students and our students had access to the military throughout my entire deanship.”
“We wanted to make absolutely sure students had access to the military at all times, but we did have a long-standing anti-discrimination policy,” she said.
More broadly, under softball questions from Democrats, Kagan offered her view of a justice’s responsibility, saying that the Constitution’s framers were “pretty wise men; if we always remember that, we’ll do pretty well, because part of the wisdom was that they wrote a Constitution for the ages.”
Democrats and Republicans pressed her to elaborate, seeing her view as reflecting her judicial philosophy.
The Constitution, Kagan said, “just says what you’re supposed to do and how things are supposed to work,” but it’s open to change.
She used the example of the Fourth Amendment, which says there shall be no unreasonable search or seizure. “What counts as an unreasonable search and seizure?” Kagan asked. “What’s unreasonable? That’s the question.”
Kagan wouldn’t go further with specifics on her views, though, even after Democrats asked about her 1995 view that confirmation hearings should offer more insight into a nominee’s thinking.
Committee members were expected to continue questioning Kagan throughout the day Tuesday and probably most of Wednesday. Each member gets half an hour to engage her. The hearings, which will feature legal experts and public witnesses later in the week, are expected to end Thursday or Friday.
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