- The Washington Times - Tuesday, June 29, 2010

Republican senators Tuesday pressed Supreme Court nominee Elena Kagan repeatedly over concerns she would be an activist judge, with President Obama’s pick defending her record on restricting military recruiters at Harvard, gun rights, the rights of individuals vs. corporations and her admiration for the late Justice Thurgood Marshall.

Ms. Kagan, facing the Senate Judiciary Committee in the second day of her confirmation hearing, used wit, modesty and legal expertise to deflect a litany of Republican queries and concerns during a daylong hearing that was largely civil in tone. Many of her answers appeared tailored to the concerns of her most conservative questioners.

Sen. Jon Kyl, Arizona Republican, asked Ms. Kagan, now the nation’s solicitor general, if she “would tend to judge in cases more actively or more with interest in protecting the rights of those who are disadvantaged?”

Ms. Kagan, 50, answered that she would do “what the law requires” because “that’s what matters.”

“The thing of glory, Sen. Kyl, is that the courts are open to all people and will listen respectfully and with attention to all claims,” she said.

Ms. Kagan added that judges shouldn’t give deferential treatment to individuals or small parties when facing big business, saying that “that courts have to be level playing fields and that everybody has to have an opportunity to go before the court.”

Mr. Kyl asked the nominee whether she agreed with some Democrats that the current Supreme Court was too favorably disposed toward corporations and the business community.

Ms. Kagan drew laughter from the packed Senate hearing room when she said that she “would not want to characterize the current court in any way. I hope one day to join it.”

“And they said you’re not political,” replied the senator, smiling.

Alabama Sen. Jeff Sessions, the ranking Republican on the judiciary panel, had one of the most blunt exchanges of the day, pressing Ms. Kagan on her decision to restrict the access of military recruiters to students at Harvard Law School while she was dean.

Mr. Sessions questioned whether her actions created a hostile atmosphere toward recruiters and treated them in a “second-class way.”

“The Air Force and the Army say they were blocked, they were stonewalled, they were getting the run-around from Harvard,” Mr. Sessions said. “I feel like you mishandled that, I’m absolutely confident you did.”

Ms. Kagan countered that she never barred recruiters from campus and always acted within the law. Rather, she said she let the school’s military veterans association sponsor recruiters instead of the school.

She said the military’s “don’t ask, don’t tell” policy against allowing gays and lesbians to serve openly in the military clashed with the school’s anti-discrimination policy.

“The military had full access to our students, both before I became dean and after I became dean,” she said.

Ms. Kagan said she personally disagrees with the “don’t ask, don’t tell” policy, now under review, but that she admires the military.

“I respect and indeed I revere the military,” said Ms. Kagan, who added that her father served in the military. “I always tried to make sure I conveyed my honor for the military.”

Mr. Sessions also said he was concerned over characterizations that Ms. Kagan was a “progressive in the mold of [President] Obama” and that she would bring a “progressive influence” to the court with the intent of reinterpreting the Constitution to advance liberal goals.

“That’s a dangerous philosophy,” he said. “That’s a philosophy not justified by any judge on the court.”

Ms. Kagan, who worked as an adviser in the Clinton administration, answered, “I don’t know what that [progressive] label means.”

“I’m not quite sure how I would characterize my politics, but one thing I do know is that my politics would be, must be, have to be completely separate from my judging,” she said.

Under persistent questioning by Sen. Charles E. Grassley, Iowa Republican, she declined to say how she felt personally about the right to bear arms, but she did call recent Supreme Court rulings upholding gun rights’ “binding precedent.”

Ms. Kagan had significant praise for one of her early legal mentors, Marshall, whom she served as a law clerk.

“I love Justice Marshall. He did an enormous amount for me,” she said. “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.”

But that admiration sparked a round of close questioning from Sen. John Cornyn, Texas Republican, who asked the nominee at one point if she agreed with a number of statements attributed to the now-deceased black justice.

“It’s clear that [Marshall] considered himself a judicial activist and was unapologetic about it,” said Mr. Cornyn. “He described his judicial philosophy as quote, ‘Do what you think is right and let the law catch up.’ “

Judiciary Committee Chairman Patrick J. Leahy, Vermont Democrat, asked Ms. Kagan to respond to Republican criticism that she agreed with comments from Marshall that the Constitution as originally drafted was “imperfect.”

The nominee said that Marshall “was talking about the fact that this was a Constitution that counted slaves as three-fifths of a human being, that didn’t do anything about that original sin of our country.”

She said the 14th Amendment, which gave full citizenship to blacks, created “a different Constitution for America.”

But she said that constitutional changes “come outside the formal amendment process as well,” such as a re-interpretation of the document that led to the abolition of “separate but equal” schools in the landmark Brown vs. Board of Education case.

Ms. Kagan added that, while the Constitution’s framers inserted numerous specific details, such as requiring senators to be at least 30 years old, “there are a range of other kinds of provisions in the Constitution of a much more general kind, and those provisions were meant to be interpreted over time, to be applied to new situations and new factual contexts.”

Mr.Grassley asked her if judges should consider foreign law when making legal decisions.

Ms. Kagan said that, while “in favor of good ideas coming from wherever you can get them,” judges shouldn’t be bound by foreign legal precedents.

“Fundamentally, we have an American Constitution. Our Constitution is our own,” she said.

Ms. Kagan also said that, if confirmed, she would recuse herself from any case that she had been a counsel of record at any stage, or in any case that she had signed a brief. She estimated about 10 cases on next season’s Supreme Court docket would require her recusal.

“That’s a flat rule,” she said.

• Sean Lengell can be reached at slengell@washingtontimes.com.

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