U.S. Supreme Court nominee Elena Kagan dueled with Republican critics Tuesday on everything from gun rights to her policies on military recruiting while dean of Harvard Law School.
For nearly nine hours, she talked about constitutional interpretation, her political philosophy, whether she can reasonably be called a "progressive," and her views on the military.
The Second Amendment right to bear arms was front and center, in light of Monday's high court ruling expanding gun rights. Senate Judiciary Committee Chairman Patrick Leahy of Vermont led off, asking her if "there [is] any doubt that the Second Amendment to the Constitution secures the fundamental right for an individual to own a firearm, use it for self-defense in their own home?" Replied Kagan: "There is no doubt, Sen. Leahy. That is binding precedent, entitled to all the respect of binding precedent in any case. So that is settled law."
Sen. Diane Feinstein, who as a San Francisco city councilwoman once famously tried in vain to stanch the bleeding in Mayor George Masconi's chest after he was fatally shot by an assassin, was openly dismayed by that answer. She noted that the Supreme Court has only recently ruled in favor of individual gun rights, and by a narrow 5-to-4 margin.
Why, demanded Feinstein, are these two recent cases now settled law? Because, replied Kagan, "the court decided them as they did. And once the court has decided a case, it is binding precedent. And it's not enough, even if you think something is wrong, to say, 'Oh, well, that decision was wrong.'"
But the main controversy of the day was Kagan's policy on military recruiting at Harvard. Kagan said military recruiters were never denied access to the Harvard campus, and that indeed "military recruiters had access to Harvard students every single day I was dean."
But ranking Republican Jeff Sessions of Alabama noted that Kagan, as dean, had adopted a policy that barred military recruiters from using the school's career services office. Harvard, for decades preceding Kagan's tenure, imposed those limits because the military's don't ask, don't tell policy violated the school's anti-discrimination policy. With the school's blessing, military recruiters used the campus veterans group to facilitate campus interviews, instead of the school's official channels.
Sessions quoted Kagan's own words back at her from her days as dean: "I abhor the military's discrimination recruitment policy. I consider it a profound wrong, a moral injustice of the first order."
Kagan tried to explain, saying, "I have repeatedly said that I believe that the don't ask, don't tell policy is unwise and unjust. I believed it then, and I believe it now. And we were trying to do two things: We were trying to make sure that military recruiters had full and complete access to our students, but we were also trying to protect our own anti-discrimination policy" and to guarantee equal treatment for the school's gay and lesbian students.
"Well you couldn't do both," said Sessions, "as it became clear as time went on."
Sessions continued, noting that Kagan was forced by the Defense Department to accept military recruiters on a totally equal basis, and that she later briefly reversed that policy after a court decision permitted other schools, not Harvard, to limit military recruiters' access.
Sessions accused Kagan of violating Harvard's agreement with the Defense Department and failing to comply with the law.
"We were never out of compliance with the law," replied Kagan.
"I tried to make clear in everything I did how much I honored everybody who was associated with the military on the Harvard Law School campus. All that I was trying to do was to ensure that Harvard Law School could also comply with its anti discrimination policy; a policy that was meant to protect all the students of our campus, including the gay and lesbian students who might very much want to serve in the military; who might very much want to do that most honorable kind of a service that a person can do for her country."
A disgusted Session said he was "a little taken aback by the tone of your remarks, because it is unconnected to reality." Moments later, outside the hearing room, Sessions suggested to reporters that in his view, the nominee had not told the truth. "I feel like she was not rigorously accurate," he said.
A Light Moment
Inside the hearing room, senators continued to press Kagan about a wide variety of question. Did she favor cameras in the Supreme Court? Yes. Did her notes in the Clinton White House reflect her views? Answer: no, they were talking points for others. And then there were national security questions from Sen. Lindsey Graham (R-SC), culminating with one about where Kagan was on Christmas day, the day of the attempted airline bombing. Kagan started to give a serious legal answer about the rights of a suspect in a case like that one, but Graham interrupted to put the question again, asking Kagan simply where she was on Christmas Day.
The nominee produced a huge belly laugh at that point, responding: "You know, like all Jews, I was probably at a Chinese restaurant." The hearing room erupted in laughter.