Panel To Hear From Witnesses For And Against Kagan

The Senate Judiciary Committee concluded a second day of questioning of Supreme Court nominee Elena Kagan on Wednesday. Committee Republicans continued asking her about her handling of military recruiters at Harvard Law School, and about her approach to judging. The committee will hear from more witnesses and is expected to vote in two weeks.

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Over on Capitol Hill, Supreme Court nominee Elena Kagan has completed her testimony before the Senate Judiciary Committee. And she came through it, largely unscathed, although most Republicans are still expected to vote against her. Senators from both parties now say they expect her to win easy confirmation. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG: The questioning went on for two grueling days, nearly 17 hours. And when it was over Kagan looked a bit like an athlete who's just played three periods of overtime - exhausted but pleased. The subject that came up most often, was her policy on military recruiting when she was dean of Harvard law school.

Senator Lindsey Graham was among those who brought up the issues yesterday, suggesting that Kagan was trying to make a political statement about the military's Don't Ask, Don't Tell policy. Not so, replied Kagan.

Ms. ELENA KAGAN (Supreme Court nominee): I had an intuitional responsibility as dean of the law school, trying to defend an antidiscrimination policy that had existed for, I don't know, 25 years.

Senator LINDSEY GRAHAM (Republican, South Carolina): Would it apply to the Catholic Church if they wanted to come and recruit lawyers from the law school, because they don't have women priests?

Ms. KAGAN: Well, the way we enforce this policy, is if an employer comes we give the employer a form.

TOTENBERG: By signing the form, she said, the employer promised not to discriminate against any student on the basis or race, creed, gender, sexual orientation or veteran's status. By signing, the employer had access to the Career Services Offices. And since the military could not sign the form, it could not use that office.

Kagan reiterated, though, that the Harvard Veterans Association helped facilitate interviews on campus, instead of the Career Services Office.

Republicans pointed to internal Defense Department memos in which some military personnel complained that the Veterans Association was not an adequate substitute. But Kagan replied that the recruitment numbers remained roughly the same, even after the Defense Department did win access to the Career Services Office.

Republicans had thought the military recruitment issue was their best shot for undermining Kagan's credibility. But on this issue, as others, they came up short and were openly frustrated.

Here, for instance, is Arizona Republican Jon Kyle, close to losing his temper.

Senator JON KYL (Republican, Arizona): We don't have a lot of time, and I'm going to pretend like I'm a Supreme Court justice for 14 minutes and you're still a solicitor general, and I will interrupt you if I think we need to move on.

TOTENBERG: Even Democrat Arlen Specter sputtered in anger when Kagan wouldn't answer queries about what legal tests she would use in her judging.

Senator ARLEN SPECTER (Democrat, Pennsylvania): The kinds of questions I have just raised, you wouldn't answer anything. And perhaps you haven't answered...

Ms. KAGAN: Well, Senator Specter, you shouldn't want to judge who will sit at this table and who will tell you that she will reverse a decision without listening to arguments and without reading briefs and without talking to colleagues, notwithstanding, that that person knows that that test has subject to serious criticism.

TOTENBERG: Specter was more muted in his criticism five years ago when he was a Republican and the nominee before him, appointed by President Bush, was John Roberts. As a witness, Roberts was such a star that every Supreme Court nominee since has followed his script: judicial modesty, deference to Congress and to judicial precedent.

Kagan, to a large extent, used the same words and phrases, though she did differ slightly with Roberts over the metaphor of a judge as umpire, just calling balls and strikes.

Ms. KAGAN: The metaphor might suggest to some people that law is a kind of robotic enterprise, that there's a kind of automatic quality to it, that it's easy, that we just sort of stand there and, you know, we call ball and strike and everything is clear-cut, and that there is no judgment in the process.

TOTENBERG: There is judgment, she said, and reasonable judges often disagree.

Today, the committee is to hear from witnesses supporting and opposing Kagan's nomination. A voting committee is expected in about two weeks, with a vote on the Senate floor by the end of July or early August.

Nina Totenberg, NPR News, Washington.

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