Kagan promises to set politics aside

Supreme Court nominee Elena Kagan promised to set her political views aside when judging cases if she’s confirmed as President Barack Obama’s second selection for the Supreme Court.

Kagan acknowledged people “can tell something about my views” based on her work for former President Bill Clinton and as solicitor general in the Obama administration, but vowed to separate her beliefs from any deliberations she would make from the high court’s bench.

“My politics would be — have to be — separate from my judging,” she said during a second day of questioning before the Senate Judiciary Committee.

Kagan’s nomination has lacked controversy, and she will likely win easy confirmation from the full Senate. Still, Republicans fear she will swing the court in a more liberal direction and questioned her admiration for Justice Thurgood Marshall, for whom she clerked and has written about in glowing terms.

Most conservatives regard Marshall, known for his civil rights work, as the epitome of an activist judge, and asked Kagan if she shared his views and judicial philosophy.

Kagan praised the former justice but stressed that she would be her own person.

“I love Justice Marshall,” she said. “He did an enormous amount for me. But if you confirm me for this position, you’ll get Justice Kagan, not Justice Marshall. And that’s an important thing.”

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Kagan answered calmly and assertively and referred to extensive case law throughout her comments. She also displayed a humorous streak, which provided levity to the hours of earnest and oftentimes dense legal testimony.

When Sen. Lindsey Graham (R-S.C.) asked her exactly where she was on Christmas Day when news broke of the failed bombing of a jet bound for Detroit, Kagan deadpanned: “Like all Jews, I was probably at a Chinese restaurant.”

But she wasn’t afraid to stand her ground under aggressive questioning from Republicans. She and Sen. Jeff Sessions (R-Ala.), the ranking member of the Judiciary Committee, clashed over her record on military recruiting while dean of Harvard Law School. Kagan insisted that she had allowed recruiters access to students interested in joining the military and that military recruitment during the time period in question actually went up. She also repeatedly said she respected and “revered” the military and noted that her father was a veteran.

“I’m confident that the military had access to our students and our students had access to the military recruiters,” she said. “That’s incredibly important, and the military should have the best and brightest that it could have. I have said on many occasions that this is the most important and honorable way that anyone can serve their country.”

Before Kagan became dean, Harvard had made an exception to its 1979 non-discrimination policy and provided military recruiters use of its career office. Kagan disagreed with the military’s “Don’t ask, don’t tell” policy on gays and lesbians serving in the military, arguing that it contradicted Harvard’s non-discrimination policy.

She barred military recruiters from using the career office, but allowed them access to students through veteran-student groups.
Sessions concluded that Kagan had created a “hostile” environment for the military on the campus.

“I do believe that the actions you took were not healthy to the military on your campus,” he said.

Judiciary Chairman Patrick Leahy (D-Vt.) tried to bolster her case by citing an op-ed written by Robert Merrill, a former Kagan student and Marine Corps captain who is now a military lawyer. In it, Merrill said he never felt Kagan had an anti-military bias, saying she “treated the veterans at Harvard like VIPs.”

When she first read the op-ed, Kagan said, she wept.

“His praise meant more to me than anyone else’s,” she told the panel.

Kagan also refused to be labeled a “legal progressive,” and explained she viewed the Constitution as a document written by the Framers to stand the test of time and be interpreted differently as new situations arise.

“The Framers were very wise men. … Part of their wisdom is that they wrote a Constitution for the ages … this was very much on their minds,” she said. “They didn’t live with bomb-sniffing dogs and computers and all these things that people are struggling with now.”

When asked about Monday’s court decision limiting the right of local governments to regulate gun ownership, Kagan signaled she would support the ruling, calling the Second Amendment protection for gun rights “settled law.”

Asked by Sen. Dianne Feinstein (D-Calif.) about her support for allowing Guantánamo Bay terrorism suspects to be detained indefinitely without trial, Kagan said it depended on the case. More broadly, on presidential war powers, Kagan said the “circumstances in which the president can act … despite Congress are few and far between.”

Graham later asked her whether Congress and the president should work together to produce a new set of laws governing the capture and prosecution of detainees.

She would not talk specifics, saying only: “It makes a difference. Courts should take note when Congress and the president work together. The action ought to be given the most deference.”

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Obama and Democrats in Congress have said they want the next Supreme Court justice to work to overturn the high court’s controversial campaign finance decision of earlier this year that lifted limits on corporate and union spending. Even though she argued that case for the government and lost, she said that experience would not taint her views of future related cases.

“I want to make a clear distinction between my views as an advocate and any views I may have as a judge,” she said. “In any of my cases when I was serving as an advocate, I’m approaching the cases as an advocate. Serving as a judge is a very different kind of process.”

Kagan also said she supported cameras in the high court, and pledged to recuse herself from any case in which she had previously had any involvement as solicitor general or otherwise, predicting that it could keep her from ruling on roughly 10 cases on the high court’s docket for the next term.

This story was updated at 7:26 p.m.