GOP witnesses rip into Kagan, but confirmation appears certain

Reid Davenport - McClatchy Newspapers

Updated March 2, 2011 1:13 PM

WASHINGTON — The Senate confirmation hearings on Supreme Court nominee Elena Kagan continued Thursday, as both parties summoned witnesses who presented competing portraits of the nominee.

Even though her confirmation appears all but guaranteed, Kagan was subject to both scrutiny and praise during the fourth and potentially final day of hearings before the Senate Judiciary Committee. All told, 23 witnesses were summoned to a hearing that stretched into the evening hours.

Republican witnesses, many from the military, blasted Kagan for not allowing the military to recruit at Harvard Law School when she was the dean because she deemed its ban on openly gay people from serving as discriminatory.

Democratic witnesses, in turn, stressed the importance of getting Kagan onto the court. Lily Ledbetter, the plaintiff in a high-profile worker pay discrimination case, stressed the importance of having more women on the bench. Ledbetter lost her case against Goodyear by one vote.

"My case shows that who gets appointed to the Supreme Court really makes a difference," Ledbetter said.

Kagan herself was absent Thursday.

The 50-year-old solicitor general and former Harvard Law School dean was nominated by President Barack Obama to replace the retiring liberal Justice John Paul Stevens.

For 17 hours on Tuesday and Wednesday, Kagan herself was subjected to questions from the judiciary committee about her background, political positions and past decisions. The committee chairman, Sen. Patrick Leahy, D-Vt., flatly predicted she'd be confirmed.

Republicans, nonetheless, took the opportunity Thursday to underscore what they consider to be Kagan's vulnerabilities.

"Dean Kagan's actions deem the military not worthy so much as to gather up the crumbs under Harvard's table," said retired Air Force Capt. Flagg Youngblood of the Air Force. "A vote to confirm Ms. Kagan as a Supreme Court justice is a vote to harm the interest of our military, the American people, who overwhelmingly support it, and not just now, but potentially for decades to come," he added.

Capt. Pete Hegseth of the Army National Guard added that Kagan acted against the federal law in denying recruiters access, while retired Air Force Col. Thomas Moe said that Kagan lacked the military experience and knowledge to understand, and thus criticize the military policy.

Witnesses for the Democrats included everyone from the president of Harvard Law Armed Forces Association to the founder and co-president of the National Women's Law Center.

"Elena Kagan's responses have been that she would adhere and follow the law, not make the law. She understands what her responsibility would be as a Supreme Court justice," Ledbetter said.

Professor Robert C. Clark, a law professor and former dean of the Harvard Law School, praised Kagan's legal background.

"She has relevant experience with the law, not only in her recent experience at solicitor general, but in my view also in her many years of spectacularly successful teaching of constitutional law and administrative law, which are very relevant subjects to this position that she's about to get, I hope," he said.

Lt. Gen. Jerry Boykin was supposed to be a witness for the Republicans, but was pulled for unknown reasons. He's best remembered for disparaging remarks he made about Islam in 2003.

The committee hearing, which were supposed to be held Thursday morning, was postponed for the memorial service of Sen. Robert Byrd, D-W.Va.

If confirmed, Kagan will be the fourth woman to serve on the Supreme Court.

ON THE WEB

Elena Kagan's resume

Senate roll call vote on Kagan's solicitor general nomination

Senate roll call vote on Sonia Sotomayor's nomination

Sen. Leahy on Kagan's nomination

Sen. Sessions on Kagan's nomination

Sen. McConnell on Kagan's nomination

Kagan's University of Chicago background

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