David Shepherd: News Blog

Journalist's Notebook

Happening Now: Kagan Grilled On Second Day of Confirmation Hearings

By: David Shepherd [dshepherd@wtwo.com] – Tuesday, June 29, 2010

Elena Kagan, President Obama’s appointee for Associate Justice to the United States Supreme Court is being grilled by lawmakers on the second day of her Senate confirmation hearings.

Kagan’s second day of confirmation hearings is less scripted and much more unpredictable than Monday’s opening statements.

Each member of the Judiciary Committee will have 13 minutes to question Kagan about her views on a variety of issues including her judicial philosophy and her previous criticism of Supreme Court decisions issued in the past.

Just after 9:00 a.m. [eastern] Committee Chairman Leahy’s began his questioning of Kagan by asking her about her parents’ influence on her.  He also asked about her parent’s views about teaching the law.  Kagan says it offers her “a wonderful opportunity” to discuss her family’s values and influence on her personal views and her career.

The chairman then zeroed in on a topic that concerns many of her conservative critics:  Kagan’s well known and very public admiration for Justice Thurgood Marshall.  During Monday’s opening statements, many conservatives called Marshall a “well-known liberal activist judge.”

The fireworks started as Sen. Jeff Sessions began his questioning of Kagan.  Monday, it became clear Sessions would be one of her harshest

Photo By: Chip Somodevilla / Getty Images

opponents in these hearings.  He lived up to that expectation has he engaged in an often bitter exchange with Kagan on a variety of issues.

Session asked Kagan about her previous employment as a White House aide to two Democratic presidents.  Kagan responded, “I’m not quite sure how I would characterize my politics” but she reiterated her previous promise to keep her politics separate from her judging.

But Sessions wasn’t done.  He went on to refer to Kagan as “a legal progressive.”  Kagan replied:  “I honestly don’t know what that label means.”

Sen. Sessions then put Kagan on the hot seat about her controversial decision, as dean of the Harvard Law School,  to ban military recruiters from entering certain resource offices at the school because of the military’s “Don’t Ask, Don’t Tell” policy; baring gay men and women from serving openly in the armed forces.

Sen. Sessions Gets Scolded

Sessions repeatedly interrupted Kagan as she answered his questions about the issue at Harvard Law.  After several interruptions, Committee Chairman Leahy interrupted Sessions telling him to let Kagan finish her answers.

Kagan said that she personally opposes “Don’t Ask, Don’t Tell” – describing it as “unwise and unjust.”  She said “I believed it then and I believe it now,” she said. (She called the policy “a moral injustice of the first order” during her tenure as the dean of Harvard Law School.)

[MSNBC Background on the issue regarding Kagan’s decision as dean of Harvard Law School – – – MSNBC verbatim]

In 2003, when she was the dean of Harvard Law School, Kagan called the military’s “Don’t Ask, Don’t Tell” policy “a moral injustice of the first order.”

At the time, the school had a ban against on-campus recruiting by organizations that practice hiring discrimination, but Harvard did not enforce the ban against the military because a federal statute — the Solomon Amendment — would have required the school to give up federal funding if it banned military recruiters.

When an appeals court ruled that the Solomon Amendment was unconstitutional, Kagan immediately required that military recruiters collaborate with a student group rather than use a campus placement center. The court decision was eventually nullified, but Kagan continued the modified ban until the Department of Defense threatened to pull funding for all of Harvard University. She also signed on to a brief challenging the military’s policy; the argument that she backed was later resoundingly rejected by the Supreme Court.

[End MSNBC verbatim]

[David Shepherd: News Blog Editor’s Note:  The Obama administration is currently working to strike down the policy with support from some high ranking military officials.]

Sessions continued his questioning with a somewhat heated back-and-forth with Kagan.

Sessions:  “In fact you were punishing the military:

Kagan: “Senator Sessions, we did what the DOD asked for.:

Sessions: “You were taking steps to treat them in a second-class way.”

Kagan: “All I was trying to do was to make sure that Harvard Law School could also comply with its anti-discrimination policy.”  She reminded Sessions that military recruiters had “full and good access” to students during her tenure as dean.

Once Session’s time for questioning expired, he quipped [to Kagan] “I am a little taken aback by the tone of your remarks.  If you had any complaint it should have been made to the United States Congress,” not to members of the military.”

The White House Steps In

After some harsh questioning about Kagan’s attitude toward the military, the White House posted an essay from a Harvard Law student who served in the Army for five years.  “Elena Kagan has recently come under attack as someone who is anti-military. To place such a label on Ms. Kagan is unfair and ill-informed.”

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June 29, 2010 - Posted by | News & Current Events

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