Supreme Court nominee Elena Kagan listens to a question from Sen. Jeff Sessions (R-AL) during the second day of her confirmation hearings.
Supreme Court nominee Elena Kagan listens to a question from Sen. Jeff Sessions (R-AL) during the second day of her confirmation hearings. Mark Wilson/Getty
Republican Sen. Jeff Sessions' cheeks reddened as he pressed his case against Supreme Court nominee Elena Kagan on Tuesday.
"You were punishing the military," he charged in response to Kagan's sturdy defense of her efforts as Harvard Law school dean to balance the school's nondiscrimination policy with the presence of military recruiters on campus.
"I know what happened at Harvard," he barked when she testified that even though the school banned recruiters from using its career services office, the recruiters still had access to students through campus military and veterans groups.
The ranking Republican on the Judiciary Committee was still exercised when he spoke with reporters later outside the hearing room. And he almost suggested Kagan was lying under oath about the facts surrounding the recruiting ban, instituted in response to the military's policy that bars gay Americans from serving.
"Several of her statements were not accurate," Sessions charged. But did he believe she was deliberately lying? "I don't know," he said.
But among his Republican colleagues Tuesday, Session proved the outlier, so to speak.
'Activist' Battle Unjoined
After opening statements Monday that seemed to presage a sharp partisan battle over the direction of the high court and who owns the definition of judicial "activism," Republicans appeared to have recalibrated.
They treated the nation's solicitor general with general solicitousness, sticking with colloquies about campaign finance law, deference to Congress and whether she views the Constitution as a living document. (She does — it develops over time, she said, rooted in original intent, precedent and history, but taking into consideration conditions unimagined by the framers. Like bomb-sniffing dogs.)
As the day wore on, she became increasingly confident. Kagan comfortably cracked jokes with Republican Sen. Lindsey Graham of South Carolina about where she was on Christmas ("Like all Jews," she said, "I was probably at a Chinese restaurant"). And she sparred with a very determined Pennsylvania Democrat, Arlen Specter, who complimented her on her sense of humor.
Rolling Past Any Speed Bumps
It was at midafternoon, nearly five hours into the hearing, when a disarming exchange between Kagan and GOP Sen. Chuck Grassley of Iowa seemed to signal a winding down of the loyal opposition's effort to put at least a few speed bumps on her road to confirmation.
Grassley asked Kagan about her Oxford University master's thesis, in which she appears to endorse judges who "often try to mold and steer the law in order to promote certain ethical values and achieve certain social ends."
She was ready for the question, and cut him off at the pass. "I ask you to recognize that I didn't know a whole lot of law then," she said, noting the dangers in writing about the law before one goes to law school.
Grassley feigned great disappointment, and elicited laughter from the room with this: "If I accept your answer, it's gonna spoil the whole five minutes I had planned."
He paused: "Let me enjoy it anyway."
Staking Out Policy Positions
Though Kagan failed to fully live up to her much-publicized call 15 years ago for more meaningful engagement and discussion from nominees during their high court hearings, she was clear on several points:
— She characterized her political views as "generally progressive."
— She found "unusual" the high court's recent path to overturning campaign finance provisions that barred direct political campaign spending by corporations and unions.
— She believes the military's don't ask, don't tell policy is "unwise and unjust."
— She believes that laws or regulations that seek to restrict a woman's access to legal abortion have to have exceptions to protect life and health of the mother.
— She considered the high court's two recent decisions on the Second Amendment's right to bear arms to be settled law, "because the court has decided," even though in both cases the court was divided 5-4.
— She proclaimed that activism "does not have a party."
— She supports introducing cameras in the Supreme Court, characterizing it as a "terrific thing" that would provide an "inspiring sight."
— And she believes that the courts should show deference to policies devised by Congress in conjunction with the president.
"It makes a difference if the president and Congress work together on something, and courts should take note of that," she said.
While Sessions' office papered the media tables with his case against Kagan based on her handling of military recruiters at Harvard, his fellow party members let him fight that battle.
"I'm more troubled today about the nomination than I was yesterday," he told reporters, a sentiment not evident among his fellow party members. Though during his questioning late in the day, Republican Sen. John Cornyn of Texas promised that he would revisit the issue.