Kagan's military views seen as key inquiry point for Judiciary senators

Senators battled it out Sunday over the nomination of Elena Kagan to the Supreme Court, indicating that the solicitor general may not have a smooth nomination process.

The two top senators on the Judiciary Committee went head-to-head over Kagan's record on military recruitment, a recurrent theme on the Sunday news shows and an issue that prompted Newt Gingrich to say on "Fox News Sunday" that President Barack Obama should pull the nomination.

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"You don't need a whole lot of hearings," the former House Speaker said. "The very fact that she led the effort, which was repudiated unanimously by the Supreme Court, to block the American military from Harvard Law School -- we're in two wars, and I see no reason why you would appoint an anti-military Supreme Court justice or why the Senate would confirm an anti-military Supreme Court justice."

Ranking member Sen. Jeff Sessions (R-Ala.) showed no signs of softening his rhetoric against Kagan's actions as Harvard Law School dean, when she denied military recruiters access to the school's career services office out of opposition to the "Don't ask, don't tell" policy barring gays from serving openly in the armed services.

"This is no little bitty matter," he told ABC's "This Week."

Sessions said Kagan had let her "deep personal belief" get in the way of following the law, saying she had "violated the law of the United States at various points in the process."

Sen. Pat Leahy (D-Vt.), chairman of the Judiciary Committee, replied that Kagan had complied with federal law after the Supreme Court struck down an attempt -- in which she participated -- to overturn it.

"This really is trying to make up something out of whole cloth," Leahy said.

He argued that students who wanted to join the military would be able to seek out recruiters easily, noting they were "always on the Harvard campus," just at a different location than other recruiters.

On CBS' "Face the Nation," Judiciary panel member Sen. Jon Kyl (R-Ariz.) wouldn't say whether Kagan was anti-military, but that her past actions would generate questions at her confirmation hearings.

"I don't know whether she's anti-military and it will play a part in the hearings," Kyl said. "In my view it was inappropriate for her to describe it as a discriminatory policy of the military," adding that neither Congress nor the Clinton administration were barred from campus for enacting the "Don't ask, don't tell" policy.

Another Judiciary Committee member, Sen. Dianne Feinstein (D-Calif.), said Kagan was "not at all" anti-military and called the accusations "Gingrich hyperbole."

"This is an inordinately quaflified woman," Feinstein said, adding that Kagan is a "very nice, down-to-earth person" with a "very unique set of credentials."

"I have seen nothing that ought to cause anything but her being confirmed," she said.

Kyl said his vote for Kagan as solicitor general was no indication on how he would vote on a lifetime appointment to the Supreme Court.

Because she has never served as a judge, Kyl said it was "more difficult to know whether she's able to set her views aside" when ruling on a case.



Sen. Chuck Schumer (D-N.Y.), also a member of the committee, said that Kagan's lack of judicial experience could actually benefit Kagan on the court.

He noted that she has more practical experience away from the "ivory tower."

"This practical person will help bring the court down to earth a little bit," he told NBC's "Meet the Press."

He suggested that Kagan would be able to convince Justice Anthony Kennedy, widely seen as the most important swing vote on the court, to join with her in more liberal decisions.

In particular, Schumer said Kagan may have been able to flip Kennedy's vote on Citizens United vs. FEC, in which the court struck down limits on corporate spending in campaigns.

"Maybe a Kagan on the court could have persuaded a Justice Kennedy" to change his mind, Schumer said. 


Kyl did take issue with a letter that Kagan co-signed in 2005 taking issue with an enemy combatants amendment pushed by Sen. Lindsey Graham (R-S.C.) and Kyl. "She compared our bill to the fundamentally lawless acts of dictators," Kyl said.

Kyl also said he felt Kagan would "probabaly double back" on what she wrote about confirmation hearings being "vapid" and "hollow" when in front of the panel herself.

A few moderate Republicans, including Sen. Scott Brown (R-Mass.), have suggested the recruitment controversy would not stand in the way of Kagan's confirmation.

After meeting with Kagan this week, Brown said he felt confident Kagan "is supportive of the men and women who are fighting to protect us and very supportive of the military as a whole."

"I do not feel that her judicial philosophy will be hurting men and women who are serving," Brown said.