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Senators pounce, Kagan parries

Nominee’s writings, Harvard Law policies occupy her GOP critics

By Mark Arsenault
Globe Staff / June 30, 2010

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WASHINGTON — Supreme Court nominee Elena Kagan came under blistering attack yesterday from a leading Republican who, on the second day of her confirmation hearing, said she went too far by limiting military recruitment when she was dean of Harvard Law School.

Kagan strongly defended her record on that issue and an array of others during round after round of sharp questioning led by Senator Jeff Sessions of Alabama, the top Republican on the Senate Judiciary Committee. In doing so, she responded confidently and injected doses of humor into the long hours of sometimes-tense dialogue.

Sessions accused Kagan of trying to sidestep the will of Congress, which passed a law saying schools must allow the military access to potential recruits or lose federal funding.

“What I’m having difficulty with is why you would treat the military in a second-class way?’’ said Sessions, the first Republican to directly question Kagan. “In fact, you were punishing the military.’’

Kagan flatly denied the accusation. “Senator Sessions, the military had full access to our students at all times,’’ she said.

Kagan, the sitting US solicitor general, was nominated by President Obama in May to replace retiring Supreme Court Justice John Paul Stevens. She faced a tough grilling from senators, several of whom quoted Kagan’s 1995 article in which she wrote that judicial nomination hearings had “taken on an air of vacuity and farce’’ because nominees avoided providing specifics about their legal views.

Yesterday, however, Kagan seemed to go through her own verbal contortions as she sought to avoid discussing how she would rule on upcoming cases, saying her earlier article had “skewed it a little too much’’ in insisting on more revealing testimony. She repeatedly spoke in broad terms, as instructed by the White House, saying she would follow legal precedents.

Because Kagan has no judicial record for senators to dissect, Sessions used most of his time focusing on her actions as dean of Harvard Law School from 2003 to 2009.

Even before Kagan arrived, the law school had wrestled with military recruiting policies. It prohibited recruiters from contacting students directly through official school channels, saying federal law preventing gays and lesbians from serving openly in the military violated Harvard’s policy against discrimination. But instead of shutting down recruitment completely, the school struck a compromise: It permitted the military to recruit students indirectly, through a campus veterans association.

By the time Kagan arrived in 2003, Harvard, faced with the revocation of federal funding because of its position, had suspended that compromise policy and once again granted the military full recruiting access. Two years later, a court ruled it was unconstitutional for the government to threaten schools with the loss of funding, so Kagan reinstated the compromise. That’s the decision that drew criticism yesterday from Sessions, leading to a series of electric exchanges.

“Isn’t it a fact that you were acting in violation of Harvard’s agreement and the law when you reversed policy?’’ said Sessions.

“Senator Sessions, we were never out of compliance with the law,’’ Kagan replied. “Nobody ever suggested that Harvard should be sanctioned in any way. The only question was whether Harvard should continue to remain eligible for federal funding.’’

Kagan said she has a deep respect for military service. She said recruitment numbers did not suffer under the compromise policy. She also said she believed at the time that the compromise was in line with the law.

Sessions was unmoved. “I’m just a little taken aback by the tone of your remarks because it’s unconnected to reality,’’ he told her.

Kagan faced an array of other topics: She said that gun rights for individuals are settled law, and that court precedent requires that restrictions on abortion must include exceptions for the health and life of the mother. She also testified that she favors opening the Supreme Court to live television coverage.

Senator Chuck Grassley, Republican from Iowa, pressed Kagan on her published comments in praise of Aharon Barak, the retired president of the Supreme Court of Israel, whom Republicans cite as an extreme example of a judicial activist who creates law from the bench. “I’m troubled you hold up Judge Barak as a role model,’’ Grassley told Kagan.

Kagan handled the question calmly, splitting her respect for Barak’s accomplishments from his legal philosophy. She admires, she said, his efforts to establish an independent judiciary in Israel.

“It’s no secret that I am Jewish,’’ Kagan said. “The State of Israel has meant a lot to me and my family. I admire what Judge Barak has done for the State of Israel.’’

Not all of Kagan’s exchanges with Republicans were adversarial. Under prodding from Senator Lindsey Graham, Republican of South Carolina, she agreed with him that the country is at war and can incarcerate “enemy combatants’’ without the same rights as a criminal defendant. As solicitor general under Obama, Kagan has opposed efforts by detainees in Afghanistan to challenge their incarceration in federal court. Graham, who has long backed such incarcerations, complimented her position.

Kagan paid homage to Stevens, the justice she will replace if confirmed. But she declined the urging of Senator Herb Kohl, Democrat of Wisconsin, to compare her philosophy to that of any sitting or recent judge.

Under further questioning by Kohl, Kagan also declined to choose between two distinct philosophies of judging: the “originalists,’’ such as Justice Antonin Scalia, who interpret the Constitution by looking only at the text, and David Souter, a retired justice who thinks the court must decide what the language means for modern people.

“I don’t really think that this is an either-or choice,’’ said Kagan. “There’s no question that if the text simply commands a result — you can only be a senator if you’re 30 years old — then the inquiry has to stop. But there are many, many provisions of the Constitution, of course, in which that’s not the case.’’

Despite sharp exchanges, the hearing offered light moments.

Questioning Kagan about Miranda warnings in connection with an attempted terrorist attack such as the failed Christmas Day bombing, Graham asked Kagan where she was on Christmas.

Kagan smiled as she delivered a one-liner that broke the tension. “Like all Jews,’’ she said, “I was probably at a Chinese restaurant.’’

Material from the Associated Press was included in this report. Mark Arsenault can be reached at marsenault@globe.com.