Kagan insists she didn't block military at Harvard

By Julie Hirschfeld Davis

Associated Press

Published: Tuesday, June 29 2010 9:00 a.m. MDT

Supreme Court nominee Elena Kagan, foreground. listens to questions from Sen. Jeff Sessions, R-Ala., the ranking Republican on the Senate Judiciary Committee, on video screen, on Capitol Hill in Washington, Tuesday, during the committee's confirmation hearing for Kagan.

Susan Walsh, Associated Press

WASHINGTON — Supreme Court nominee Elena Kagan clashed Tuesday with a Republican senator over the limits she ordered on military recruiters while dean of Harvard Law School, repeatedly denying she blocked them as she sought to deflect foes' efforts to slow her apparently smooth road to confirmation.

Despite a testy exchange with the top Republican on the Senate Judiciary Committee, President Barack Obama's nominee soldiered through her second day of public testimony on Capitol Hill apparently in good shape to win Senate approval — barring a major gaffe — in time to take her seat before the court opens a new term in October. If confirmed, Kagan, 50, would succeed retiring Justice John Paul Stevens

Republican foes weren't giving up quietly. Sen. Jeff Sessions of Alabama said he emerged from the long day of questioning more "troubled" about Kagan's nomination than he had been previously. During his sometimes heated back-and-forth with Kagan, Sessions said her decision to bar recruiters from the law school's career services office over the Pentagon's prohibition on openly gay soldiers was "punishing" the military at Harvard, treating them in a "second-class way" and creating a hostile environment for the military on campus.

Kagan said she was trying to balance Harvard's nondiscrimination policy, which she believed "don't ask, don't tell" violated, with a federal law that required schools to give military recruiters equal access as a condition of eligibility for federal funds. She said she welcomed the military, and believed her policy of requiring recruiters to work through a student veterans group — first set by a predecessor — was a valid compromise.

"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 it is ... supposed to protect, which in this case were our gay and lesbian students," Kagan said.

Sessions rejected her version of events and accused Kagan of defying federal law because of her strong opposition to the military's treatment of homosexuals.

"I know what happened at Harvard. I know you were an outspoken leader against the military policy," Sessions said "I know you acted without legal authority to reverse Harvard's policy and deny those military equal access to campus until you were threatened by the United States government of loss of federal funds."

Kagan was less willing to mix it up with Republicans who closely questioned her on controversial legal topics.

The nominee, who once wrote a strongly worded article denouncing Supreme Court nominees for dodging questions at confirmation hearings, herself refused repeatedly to be pinned down on specific legal issues, her political views or even the passions that animate her to seek a place on the court.

She did call recent Supreme Court rulings upholding gun rights "binding precedent," and she said the court's rulings mandate that in any law regulating abortion "the woman's life and the woman's health have to be protected." She said a 5-4 decision this year that said corporations and unions were free to spend their own funds on political activity was "settled law."

But she was less forthcoming when asked whether she thought that campaign finance case, which she argued for the Obama administration and lost, had been wrongly decided.

"I did believe we had a strong case to make. I tried to make it to the best of my ability," she told Sen. Orrin Hatch, R-Utah, who questioned her in detail about Citizens United v. Federal Election Commission.

She also said none of her work arguing the government's cases before the Supreme Court — she was Obama's solicitor general until last month — should be interpreted as reflecting her own positions.

"I want to make a clear distinction between my views as an advocate and any views I might have as a judge," Kagan said.

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