'Military Recruiters Had Access To Harvard Students

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Republican Sen. Jeff Sessions says he's more "troubled" about Elena Kagan's Supreme Court nomination than he was before Tuesday's hearing. Sessions grilled Kagan over her decision as dean of Harvard Law to bar military recruiters from the school's career services office. Kagan faces more questioning Wednesday.

MARY LOUISE KELLY, host:

It's MORNING EDITION from NPR News. Good morning, I'm Mary Louise Kelly.

RENEE MONTAGNE, host:

And I'm Renee Montagne.

For nearly nine hours yesterday, Supreme Court nominee Elena Kagan fended off critics, expounded on her philosophy of judging, and did her best to be charmingly noncommittal on the issues. She's back at the witness table this morning for a second day of questioning before the Senate Judiciary Committee.

NPR legal affairs correspondent Nina Totenberg has our report.

NINA TOTENBERG: Kagan remained cool on the hot seat, blushing with embarrassment at the views she expressed as a student, laughing hard at her own expense at another point, and seeking to answer - without answering - questions about how she might approach or decide cases if confirmed.

The testiest exchanges were with the Judiciary Committee's ranking Republican, Jeff Sessions. He first sought to tie Kagan to a variety of progressives, from President Obama to judges she clerked for, even to a liberal columnist. And he quoted Vice President Biden's chief of staff Ron Klain as assuring the Democratic Party's left that Kagan would be a legal progressive.

Senator JEFF SESSIONS (Republican, Alabama): Do you agree with the characterization that you are a legal progressive?

Ms. ELENA KAGAN (Nominee, Supreme Court): Senator Sessions, I honestly don't know what that label means. I've worked in two Democratic administrations. I love my good friend Ron Klain, but I guess I think that people should be allowed to label themselves.

TOTENBERG: Having said that though, Kagan declined to affix any label to herself.

Sessions grew far more aggressive in questioning Kagan about her policies on military recruiting when she was Harvard Law School dean. The school, for decades, limited the help it gave to military recruiters, because the Don't Ask, Don't Tell Policy violated the institution's anti-discrimination rules.

Kagan said that instead of using official channels to arrange interviews, the school used the campus veteran's organization to facilitate military recruiting on campus.

Ms. KAGAN: Military recruiters had access to Harvard students every single day I was dean.

TOTENBERG: But Republican Sessions noted that Kagan had, more than once, reversed policies, eventually bowing to a Defense Department ruling, and later a unanimous Supreme Court decision that upheld an act of Congress barring federal funds for any school that denied the military equal access.

Kagan maintained that she sought to ensure that everyone's rights were protected.

Ms. 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 military, who might very much want to do that most honorable kind of service that a person can do for her country.

Sen. SESSIONS: I'm just a little taken aback by the tone of your remarks, because it's unconnected to reality. I know what happened at Harvard. I know you an outspoken leader against the military policy. I know you acted without legal authority.

TOTENBERG: Another hot topic yesterday was gun rights. Kagan said that she viewed the Supreme Court's two recent decisions: expanding the right to keep and bear arms as, in her words, binding precedent, settled law.

That dismayed California Democrat Dianne Feinstein, a longtime advocate of gun control to curb violence.

Senator DIANNE FEINSTEIN (Democrat, California): Why do these two cases become settled law?

Ms. KAGAN: Senator Feinstein, because 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.

TOTENBERG: Feinstein also asked about national security and presidential power. The Bush administration maintained that the president has power to override acts of Congress in the interests of national security. But Kagan sounded doubtful.

Ms. KAGAN: I would say that the circumstances in which the president can act as against specific congressional legislation - where the president can act despite Congress - are few and far between.

TOTENBERG: Republican Senator Lindsey Graham asked more questions about national security. And when he asked the nominee about where she was on Christmas Day, she began a serious answer focused on the attempted Christmas Day bombing. Graham interrupted her, a puckish expression on his face.

Senator LINDSEY GRAHAM (Republican, South Carolina): I just asked you where you were at on Christmas.

(Soundbite of laughter)

Ms. KAGAN: You know, like all Jews, I was probably at a Chinese restaurant.

(Soundbite of laughter and applause)

Sen. GRAHAM: Great answer.

TOTENBERG: Senator Charles Schumer piped up, adding: Chinese restaurants are the only ones open on Christmas Day.

Nina Totenberg, NPR News, Washington.

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