GOP turns up the heat

On her first day fielding questions from the Senate Judiciary Committee, Supreme Court nominee Elena Kagan on Tuesday was accused of shading the truth about her role in a controversy over military recruiters at Harvard University.

“The overall picture that she portrayed of the situation seems to me to be disconnected to the reality,” Sen. Jeff Sessions of Alabama, the top Republican on the panel, said after an extended spat with Kagan. “I believe that’s a serious matter.”

Sessions also said she was not “rigorously accurate” and that he expected “intellectual honesty” from prospective justices.

The dispute made for tense moments on Kagan’s first full day of testimony in her bid to replace retired Justice John Paul Stevens. The day also featured spirited exchanges about other divisive issues, including gun rights, national security policy and campaign finance legislation.


As dean of Harvard Law School, Kagan barred military recruiters from using the on-campus career services office in 2004 and 2005 because of the Pentagon’s “don’t ask, don’t tell” policy involving gay and lesbian service members. In testimony, she argued that her view had been supported by an appeals court ruling, which was later overturned by a unanimous Supreme Court. She altered Harvard Law School’s policy after the high court’s action.

Kagan maintained that recruiting at the law school didn’t suffer because a veterans group facilitated recruitment.

“We were trying to make sure that military recruiters had full and complete access to our students, but we were also trying to protect our own antidiscrimination policy and to protect the students whom

Sessions was not mollified. “I know what happened at Harvard,” he said brusquely. “I know you acted without legal authority.”


During the colloquy, Kagan revealed a personal moment, saying she had only “cried once” since President Obama nominated her to the court: When a former student, now a captain in the National Guard serving in Afghanistan, wrote a newspaper opinion article in her support.

“His praise meant more to me than anybody’s,” Kagan said.

Despite the forceful give-and-take, Kagan’s confirmation hearing Tuesday appeared to do little to disturb the prevailing notion that she will be confirmed by a Senate with 58 members of the Democratic caucus, including two independents. And while Sessions was combative, a fellow Republican on the committee, Sen. Lindsey Graham of South Carolina, was effusive.

Graham pressed Kagan about the Obama administration’s wartime power to hold “enemy combatants” indefinitely without trial and to deny habeas corpus rights to fighters captured in Afghanistan.


She responded by essentially outlining views that did not differ substantially from legal positions held by the George W. Bush administration.

If there is any opportunity for Kagan to pick up more than a handful of GOP votes, it would seem to come as a result of her national security views.

At one point, Graham, who is considered a crucial vote for Kagan, said he wanted all “conservative scholars and commentators” to know about her “excellent” work as U.S. solicitor general in arguing anti-terrorism cases.

Throughout the hours of questioning, Kagan, 50, came off as the law professor she was, in command of constitutional law, with ready answers to most questions and occasionally flashing a sense of humor.


At one point, Graham asked where she was on Christmas Day 2009, when an alleged terrorist tried to blow up an airliner as it was landing in Detroit.

“Like all Jews, I was probably at a Chinese restaurant,” Kagan answered.

The hearing room roared.

Other Republican senators pressed Kagan on gun rights, pushing her to pledge fidelity to the Supreme Court’s 5-4 decision Monday that an individual right to own handguns extends to the states, as well as to its 2008 decision that such a right exists under the 2nd Amendment.


Kagan demurred on expressing her personal views, but called both cases “settled law.”

She defended her work as a White House domestic policy advisor under President Clinton, when the administration battled the gun lobby over issues such as banning assault weapons, trigger locks and background checks. All those skirmishes took place before the court’s recent rulings on gun rights.