Kagan recruiter ban probed

WASHINGTON — Supreme Court nominee Elena Kagan on Tuesday defended her treatment of military recruiters when she was dean at Harvard Law School, saying they had access to students “every single day” and any limitations were aimed at protecting the rights of homosexuals on campus.

Kagan said military officials recruited through an off-campus veterans’ group as she enforced a rule barring them from using the law school’s office of career services because the military kept homosexuals from serving openly.

“Military recruiters had access to Harvard students every single day I was dean,” Kagan said in response to questioning on the second day of her confirmation hearings before the Senate Judiciary Committee. She said military recruiting increased at one point during her tenure, and that she often told alumni and students in the military“how much I respected their service.”

The military recruitment question is one of the major issues facing Kagan, President Barack Obama’s choice to become the nation’s 112th Supreme Court justice. Republicans have used it to question her political leanings.

Sen. Jeff Sessions of Alabama, the ranking Republican on the panel, told Kagan he believed she treated the military “in a second-class way.” He said, “I’m just a little taken aback by the tone of your remarks, because it’s unconnected to reality.”

Kagan said she opposed the military’s “don’t ask, don’t tell” policy on homosexuals serving in the armed forces and still does. She called it “unwise and unjust.” The House on May 27 voted to repeal the policy.

Kagan told the committee that she had been trying to reconcile Harvard’s own antidiscrimination policy with a provision known as the Solomon Amendment, which requires universities that receive federal financing to give full access to the military. Sessions helped write the amendment and made clear his displeasure with Kagan.

“You were punishing the military,” he said at one point.

Later, outside the hearing room, Sessions came close to accusing Kagan of lying, calling her “not rigorously accurate” in her explanation.

The hearing will resume at 8 a.m. Central time today.

Kagan said “there is no doubt” the Supreme Court’s 2008 ruling that the Constitution’s Second Amendment protects an individual right to carry guns is “settled law.” She said she had “absolutely no reason” to think the court’s analysis in the case was wrong.

As a Supreme Court clerk in 1987, Kagan wrote that she was “not sympathetic” toward a man who contended that his constitutional rights were violated when he was convicted for carrying an unlicensed pistol. Kagan said the state of the law had changed fundamentally in the two decades since.

The constitutionality of the death penalty is also “settled law,” she said.

Kagan expressed admiration for the late Justice Thurgood Marshall, the court’s first black justice, whom Republicans have held up as a prime example of a judicial activist.

“I love Justice Marshall,” Kagan said of the man for whom she once clerked. “But if you confirm me to this position, you will get Justice Kagan. You won’t get Justice Marshall, and that’s an important thing.”

The hearings, Sen. Charles Schumer, D-N.Y., told Kagan, are “showing the American people that you are the kind of person many of us believe you to be - thoughtful and practical and moderate.”

Senators on Tuesday asked her questions on a variety of issues, from campaign finance to the role her parents played in shaping her views.Sen. Herb Kohl, D-Wis., asked whether she supported the court’s decision in the 2000 Bush v. Gore case that stopped a recount in Florida and awarded the presidency to George W. Bush.

Kagan didn’t answer directly, saying that the question of when the court should get involved in elections is important and might come before the justices again. “I would try to consider it in an appropriate way,” she said.

The nominee told senators that the framers of the Constitution anticipated it would be interpreted in light of changes in society, technology and the country at large.

“Part of their wisdom was that they wrote a Constitution for the ages,” Kagan said. Some provisions “were meant to be interpreted over time,” she said.

Kagan said she may have, in an earlier writing, overstated the need for Supreme Court nominees to be forthcoming in testimony about legal issues. “I skewed it too much” toward giving candid answers on settled cases, she said. “That was wrong.”

Obama and the Democrats have criticized the court’s 5-4 ruling this year in Citizens United v. Federal Election Commission, which overturned limits on corporate election spending. Kagan argued the losing side of the case and said Tuesday that she was convinced of the merits of her side.

Still, she said she would distinguish between her role as an advocate and a judge. “Citizens United is settled law going forward,” she said. She said she would respect the precedent.

Asked about abortion, Kagan said that aside from the court’s 2007 ruling that upheld a ban on partial-birth abortion, the court’s holdings establish that “the woman’s life and the woman’s health must be protected in any abortion regulation.”

Kagan said she supports the idea of placing cameras in the Supreme Court to televise proceedings.

“When you see what happens there, it’s an inspiring sight,” she said.

Kohl also failed to convince Kagan to say whether she agreed with Justice Antonin Scalia’s view that the Constitution should be interpreted solely based on its text or with former Justice David Souter’s contention that it should be viewed in terms of its words’ “meaning for living people.”

“I don’t really think that this is an either-or choice,” Kagan responded.

Later, she disavowed the term “living Constitution” to describe her approach. “I don’t particularly think that the term is apt,” Kagan told Sen. John Cornyn, R-Texas, adding that she especially didn’t like what people associated it with - “a kind of loosey-goosey style of interpretation in which anything goes.”

On the contrary, Kagan said, judges have a “highly constrained role.”

Asked by Sessions whether she considered herself “a progressive in the mold of” Obama or a “legal progressive,” as one of his top aides has called her, Kagan said she’d rather choose her own labels, but declined to give herself one.

“One thing I know is that my politics would be, must be, have to be separate from my judging,” Kagan said.

Later, under questioning by Sen. Lindsey Graham, RS.C., Kagan called her views “generally progressive.”

“I’ve been a Democrat all my life. I’ve worked for two Democratic presidents, and that’s what my political views are,” she said.

Graham introduced a line of questioning about Miranda rights and military commissions by recalling the unsuccessful attempt to bomb an airplane last Christmas. He asked the nominee where she was on Christmas Day. “You know, like all Jews, I was probably at a Chinese restaurant,” she replied, as the other senators and audience members in the hearing room burst into laughter.

Kagan would become the fourth woman to serve on the court. If confirmed, Kagan, a New York native, would replace Justice John Paul Stevens.

Information for this article was contributed by Kristin Jensen, Laura Litvan and Catherine Dodge of Bloomberg News; by Julie Hirschfeld Davis of The Associated Press; by Charlie Savage and Sheryl Gay Stolberg of The New York Times; and by Amy Goldstein, Alec MacGillis and Paul Kane of The Washington Post.