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Elena Kagan: Supreme Court nominee eases through GOP questioning

Supreme Court nominee Elena Kagan deftly handled her second day of questioning before the Senate Judiciary Committee and appears headed for confirmation.

By Staff writer / June 30, 2010

Supreme Court nominee Elena Kagan testifies on Capitol Hill in Washington on June 30 during her confirmation hearing before the Senate Judiciary Committee.

Susan Walsh/AP



Supreme Court nominee Elena Kagan endured her second full day of questioning at the Senate Judiciary Committee Wednesday, and she appears to be well on her way toward confirmation.

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The Kagan hearings have been notable for their relative lack of significant controversy.

The solicitor general and former dean of Harvard Law School again faced repeated, close questioning about her decision in late 2004 to bar military recruiters from the law school’s office of career services in what her critics say was defiance of the Solomon Amendment.

She has sought to reassure the senators that she does not harbor a secret agenda to push the court in one direction or another. And she has spent hours in the now familiar dance of high court nominees – the side-step shuffle – choosing her words carefully, saying just enough about her view of constitutional law to demonstrate understanding without telegraphing how she might vote in a future case.

Democrats attack some Roberts court decisions

The hearings have also been used by the Democratic majority as a platform to attack certain decisions by the Supreme Court under Chief Justice John Roberts. Democratic critics maintain the high court engaged in conservative judicial activism when it struck down part of a campaign finance law earlier this year. It was also the first case Kagan argued before the high court as solicitor general.

On Wednesday, several Republican senators pressed Kagan on the military recruiting issue at Harvard. Sens. Jeff Sessions of Alabama and Orrin Hatch of Utah objected to her testimony on Tuesday that “the military at all times during my deanship had full and good access” to Harvard students.

Senator Hatch said the student veterans group that reluctantly agreed to help military recruiters had a “tiny budget and no office space.” He added: “All they could do is establish an e-mail account.”

Hatch asked: “Is this what you referred to yesterday as full and complete access to our students and an equal substitute to the office of career services?”

'Reasonable people can disagree'

“I appreciate that reasonable people can disagree,” Kagan said. “But the military … had excellent access to our students.”

Sen. Lindsey Graham (R) of South Carolina suggested that by barring military recruiters from the law school’s own recruiting office Kagan was attempting to make a political statement.

“I was trying on one hand to ensure military recruiting, and on the other, defending the school’s long-standing antidiscrimination policy,” Kagan said. “I had an institutional responsibility.” (She was speaking of the conflict between Harvard’s antidiscrimination policy and the US military’s “don’t ask, don’t tell” policy barring gay men and lesbians from openly serving in uniform.)