WASHINGTON — A poised Elena Kagan on Tuesday spent the second day of her Supreme Court confirmation hearing fending off Republican efforts 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," she said.
However, when Kagan was asked later where she stood politically, she said she'd been a Democrat all her life and that ''my political views are generally progressive.''
Senate Judiciary Committee members peppered Kagan with a wide range of questions, trying to discern a judicial philosophy and sense her temperament.
Democrats, who control 58 of the Senate’s 100 seats, routinely praised the record of the 50-year-old solicitor general, as well as her performance this week, and predicted confirmation. Republicans vowed to keep firing away at her record and philosophy. President Barack Obama nominated her to replace retiring Justice John Paul Stevens. The hearings were to continue Wednesday.
Kagan looked comfortable most of the time Tuesday, as if she were among old friends, but there were times when she sat alert and even turned combative as Republicans hammered away at issues such as military recruiting at Harvard Law School while she served as its dean.
“I feel like she was not rigorously accurate in describing the whole nature of the circumstance, and so I’m disappointed in it,” said Sen. Jeff Sessions of Alabama, the committee’s senior Republican member.
Lawmakers from both parties asked Kagan, in sometimes scattershot fashion, about the day’s biggest controversies, including abortion rights, campaign finance laws, national security and gun control.
While saying that she’d judge cases on their individual merits, she offered some glimpses of her views. When considering abortion rights, Kagan stressed, “the continuing holdings of the court are that the woman’s life and that the woman’s health must be protected.”
Sen. Orrin Hatch, R-Utah, quizzed her on whether she agreed with the Supreme Court’s recent ruling that corporations and labor unions could spend unlimited sums on political activity, a view that Kagan opposed as solicitor general.
“I did believe we had a strong case to make,” she said.
She left herself room to go both ways when commenting on the Supreme Court’s rulings Monday that put strict state and local gun laws in jeopardy. Sen. Dianne Feinstein, D-Calif., a leading gun-control advocate, asked why the cases suddenly “become settled law."
“Because the court decided them as they did,” Kagan said. “And once the court has decided a case, it is binding precedent.”
Then again, Kagan said, “there are various reasons why you might overturn a precedent,” including whether it proves unworkable over time.
She bantered with the senators at times.
She joked with Sen. Arlen Specter, D-Pa., that if court hearings were televised, “It means I’d have to get my hair done more often.” When Sen. Lindsey Graham, R-S.C., asked her what she was doing on Christmas Day, she grinned and said, “Like all Jews, I was probably at a Chinese restaurant.”
Kagan disarmed Sen. Charles Grassley, R-Iowa, when he asked about her master’s thesis assertion that judges could help steer the law. “I would ask you to recognize I didn’t know a whole lot of law then,” she said.
Republicans 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 because of the military's policy banning gays and lesbians from serving openly. Kagan had called the policy a "profound wrong" and a "moral injustice of the first order" in a 2003 e-mail.
Under a legal provision known as the 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. Military recruiters used different facilities from those that had signed nondiscrimination pledges; they were never banned from Harvard's campus.
Full official access later was restored, after 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.
Sen. Russ Feingold, D-Wis., injected a note of geographic diversity, saying that his constituents wondered why the court was so loaded with justices from the East Coast. Kagan, a New York native, has lived most of her life in the Northeast.
“Does it count that I lived in Chicago for some period of my life?” Kagan, a University of Chicago law school professor in the 1990s, chuckled and asked.
“Getting closer,” Feingold said.
The committee has 12 Democrats and seven Republicans. Last year, Graham was the only GOP senator on the committee to back Obama nominee Sonia Sotomayor, who was confirmed. Graham seemed warm to Kagan, noting that Washington lawyer Miguel Estrada had praised her. President George W. Bush nominated Estrada for a federal appellate judgeship, but he withdrew after Democratic opposition. Kagan praised Estrada, a Harvard Law School classmate, and after she did so, Graham said, “Your stock really went up with me.”
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