Kagan Faces Questions On Views, Record 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.

Kagan Faces Questions On Views, Record

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This is ALL THINGS CONSIDERED from NPR News. I'm Michele Norris.


NPR's Nina Totenberg has our report.

NINA TOTENBERG: With the Supreme Court just yesterday issuing a new decision expanding gun rights, the issue was front and center as questioning of Kagan began today. Committee chairman Patrick Leahy led off.

NORRIS: Is there any doubt that the Second Amendment to the Constitution secures a fundamental right for an individual to own a firearm, use it for self-defense in their home?

NORRIS: There is no doubt, Senator Leahy, that is binding precedent entitled to all the respect of binding precedent in any case. So that is settled law.

TOTENBERG: Democratic Senator Dianne Feinstein followed up. As a San Francisco city councilman, she once famously tried in vain to stanch the bleeding in Mayor George Moscone's chest after he was fatally shot by an assassin. She was openly dismayed today at Kagan's answer on guns, noting that the Supreme Court has only recently ruled in favor of individual gun rights.

NORRIS: Why do these two cases become settled law?

NORRIS: 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: But the main controversy of the day was Kagan's policy on military recruiting at Harvard. Chairman Leahy framed the issue this way.

NORRIS: Did you ever bar recruiters for the U.S. military from access to students at Harvard Law School while you were dean?

NORRIS: Senator Leahy, military recruiters had access to Harvard students every single day I was dean.

TOTENBERG: 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 antidiscrimination policy. Senator Sessions.

NORRIS: You said, quote, "I abhor the military's discrimination recruitment policy," close quote. I consider it, quote, "a profound wrong, a moral injustice of the first order," close quote. And you said that not within six months or so of becoming dean. And that was an email you sent to the entire law school.

NORRIS: Senator Sessions, 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 antidiscrimination policy and to protect the students whom the policy is supposed to protect, which in this case were our gay and lesbian students.

NORRIS: Really?

NORRIS: And we tried to do both of those things.

NORRIS: Well, you couldn't do both as it became clear as time went on.

TOTENBERG: Sessions continued, noting that Kagan was forced by the Defense Department to accept military recruiters on a totally equal basis, and that she later and briefly reversed that policy after a court decision permitted other schools to limit military recruiters' access.

NORRIS: Isn't it a fact that you were acting in violation of Harvard's agreement and the law when you reversed policy?

NORRIS: Senator Sessions, we were never out of compliance with the law.

NORRIS: You did what DOD wanted when they told the president and the counsel for the university they were going to lose some $300 million if Dean Kagan's policy was not reversed.

TOTENBERG: In her testimony today, Kagan repeatedly rejected Sessions' characterization of her conduct as antimilitary, noting that she arranged for the campus' veterans group to help recruiters in place of the Career Services Office.

NORRIS: 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 antidiscrimination 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 service that a person can do for her country.

NORRIS: Well...

NORRIS: That's...

NORRIS: I would just say while my time is running down, I'm just a little taken aback by the tone of your remarks, because it's unconnected to reality.

TOTENBERG: Moments later, outside the hearing room, Sessions seemed to suggest that Kagan had not told the truth.

NORRIS: I feel like that she was not rigorously accurate in describing the whole nature of this circumstance.

TOTENBERG: And then there were national security questions from Republican Senator Lindsey Graham, culminating with one about where Kagan was on the attempted Christmas Day bombing. The nominee started to give a serious legal answer, but Graham interrupted to put the question again.

NORRIS: I just asked you where you at on Christmas.


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


NORRIS: All right. Great answer.

TOTENBERG: Nina Totenberg, NPR News, Washington.

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