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Senators Press Kagan on Military Recruiter Access, Abortion Rights

June 29, 2010 at 12:00 AM EST
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GWEN IFILL: In her second day before the Senate Judiciary Committee, Supreme Court nominee Elena Kagan was challenged on her beliefs, her academic track record, and the major legal issues of the day.

“NewsHour” correspondent Kwame Holman begins our coverage.

KWAME HOLMAN: The nominee took her seat at 9:00 a.m. on day two of the hearings, and, in short order, she was being pressed by Alabama Republican Jeff Sessions. He attacked Kagan’s decision as dean of Harvard law school to block military recruiters.

She had objected to the military’s don’t ask, don’t tell policy against gays in the military.

SEN. JEFF SESSIONS, R-Ala.: They were stonewalled, they were getting the runaround from Harvard. By the time they realized that you had actually changed the policy, that recruiting season was over, and the law was never not in force.

I feel like you mishandled that. I’m absolutely confident you did.

ELENA KAGAN, Supreme Court nominee: Senator Sessions, if — if I might, you had suggested that the military lost a recruiting season, but, in fact, the veterans organization did a fabulous job of letting all our students know that the military recruiters were going to be at Harvard during that recruiting season, and military recruiting went up that year, not down.

KWAME HOLMAN: But Sessions disputed Kagan’s version of what happened and whether her actions actually violated federal law.

SEN. JEFF SESSIONS: I know what happened at Harvard. I know you were an outspoken leader against the military policy. 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. This is what happened.

ELENA KAGAN: You know, I respect and indeed I revere the military.

But I also felt a need to protect our — to defend our school’s very long-standing anti-discrimination policy and to protect the men and women, the students, who were meant to be protected by that policy: the gay and lesbian students who wanted to serve in the military and do that most honorable kind of service.

KWAME HOLMAN: Kagan also sparred at length with Arizona Republican Jon Kyl over her past praise of the late Justice Thurgood Marshall. She clerked for him in the late 1980s and has written of his approach to the law.

SEN. JON KYL, R-Ariz., minority whip: You said, “In Justice Marshall’s view, constitutional interpretation demanded above all else that the courts show a special solicitude for the despised and disadvantaged.”

What’s unclear to me is whether you agree with Justice Marshall’s view of the role of the court in constitutional interpretation.

ELENA KAGAN: Justice Marshall’s whole life was about seeing the courts take seriously claims that were not taken seriously anyplace else.

So in his struggle for racial justice, you know, he could go to the statehouses or he could go to Congress or the president, and those claims generally were ignored.

SEN. JON KYL: Well, let me just ask you, do you believe, then — and it’s hard, I realize, though you certainly know — you knew Justice Marshall very well — you knew his reasoning — that he would have agreed with Justice Roberts that if the big guy has the law on his side, the big guy wins; if the little guy does, then the little guy wins, and that’s consistent with what Justice Marshall believed?

ELENA KAGAN: Senator Kyl, I guess two points. The first is, I guess I don’t want to spend a whole lot of time trying to figure out exactly what Justice Marshall would have said with respect to any question, because the most important thing — I love Justice Marshall. He did an enormous amount for me.

But if you confirm me to this position, you will get Justice Kagan. You won’t get Justice Marshall, and that’s an important thing.

SEN. JON KYL: Yes, and I — I totally agree with you. It’s not what Justice Marshall believed that’s important here. It’s what you believe. Since you have written so glowingly about him, you called it in fact his vision of the court “a thing of glory,” I believe.

ELENA KAGAN: The thing of glory, Senator Kyl, is that the courts are open to all people and will listen respectfully and with attention to all claims. And, at that point, the decision is what the law requires. And there may be differences as to what the law does require, but it’s what the law requires. And that’s what’s — what — what matters.

KWAME HOLMAN: For his part, Committee Chairman Patrick Leahy turned to the issue of gun rights. He pointed to yesterday’s Supreme Court decision and another two years ago which broadly backed the right to bear arms over local limits on gun ownership.

SEN. PATRICK LEAHY, D-Vt., Judiciary Committee chairman: Is there any doubt after the court’s decision in Heller and McDonald 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?

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

KWAME HOLMAN: Later, California Democrat Dianne Feinstein returned to the gun issue.

SEN. DIANNE FEINSTEIN, D-Calif.: California is not Vermont. California’s a big state with roiling cities. It’s the gang capital of America. The state has tried to legislate in the arena.

So here’s my question to you: Why is a 5-4 decision — in two quick cases, why does it throw out literally decades of precedent in the Heller case in your mind? Why does it — why do these two cases become settled law?

ELENA KAGAN: Senator Feinstein, because the court decided them as they did. And once the court has decided a case, it is binding precedent.

And I think that that’s an enormously important principle of the legal system, that — that one defers to prior justices or prior judges who have decided something. And — and that it’s not enough, even if you think something is wrong, to say, “Oh, well that decision was wrong. They got it wrong.”

KWAME HOLMAN: Feinstein also raised the issue of abortion rights under the landmark decision Roe vs. Wade and subsequent rulings.

SEN. DIANNE FEINSTEIN: Here’s the question: Do you believe the Constitution requires that the health of the mother be protected in any statute restricting access to abortion?

ELENA KAGAN: Senator Feinstein, I do think that the continuing holding of Roe and Doe v. Bolton is that women’s life and women’s health have to be protected within — in abortion regulation.

KWAME HOLMAN: Wisconsin Democrat Herb Kohl offered up the names of two current justices and tried to get Kagan to say which one came closer to her views.

SEN. HERBERT KOHL, D-Wisc.: Justice Scalia considers himself to be an originalist who interprets the Constitution by looking solely at the text. He rejects the notion of a living Constitution and only gives the text of the Constitution — quote — “the meaning that it bore when it was adopted by the people in 1787.”

In contrast, Justice Souter has criticized this purely textual approach as having, quote, “only a tenuous connection to reality.” He believes that the plain text of the Constitution as written in 1787 does not resolve the conflict in many of today’s tough cases. Rather, Justice Souter believes judges must look at the words and seek — quote — “to understand their meaning for living people.”

Which view of the constitutional interpretation comes closer to your view and why?

ELENA KAGAN: Senator Kohl, I don’t really think that this is an either/or choice. I think that there are some circumstances in which looking to the original intent is the determinative thing in a case and other circumstances in which it is likely not to be.

And I think, in general, judges should look to a variety of sources when they interpret the Constitution, and which take precedence in a particular case is really a kind of case-by-case thing.

KWAME HOLMAN: The morning session went on for nearly four hours. And Solicitor General Kagan answered some questions and declined to answer others. After a mid-afternoon lunch break, senators were back at it, with Democrats probing gently, and Republicans challenging Kagan on her views on major legal issues.

Republican Charles Grassley of Iowa sounded out the nominee on the role of international law in U.S. courts.

SEN. CHARLES GRASSLEY, R-Iowa: Should judges ever looked to foreign law for — quote, unquote — “good ideas?”

ELENA KAGAN: I guess I’m in favor of good ideas coming from wherever you can get them.

But I don’t think that foreign law should have independent precedential weight in any but a very, very narrow set of circumstances. So — so I would draw a distinction between looking wherever you can find them for good ideas, for — just to expand your knowledge of the way in which judges approach legal issues, but — but making that very separate from using foreign law as — as precedent or as independent weight.

KWAME HOLMAN: Amid the sometimes tense exchanges, there were also humorous moments, as when Pennsylvania Democrat Arlen Specter asked about televising Supreme Court proceedings.

SEN. ARLEN SPECTER, D-Pa.: I think it’s — it’s always a good thing when people understand more about government, rather than less. And certainly, the Supreme Court is an important institution and one that the American citizenry has every right to — to — to know about and understand.

And, now, I recognize that some people — some justices may have views to the contrary, and I would want to hear those views and to think about those views, but — but — but that’s sort of my going-in thought, which…

SEN. ARLEN SPECTER: They all appeared on television this year on C-SPAN, and most of them — many of them have appeared over the years selling books and being in a variety of situations.

ELENA KAGAN: It means I would have to get my hair done more often, Senator Specter.

SEN. ARLEN SPECTER: Let me commend you on… Let me commend you on that last comment.

SEN. ARLEN SPECTER: And I say that seriously. You have shown a really admirable sense of humor, and I think that is really important. And as Senator Schumer said yesterday, we’re looking for somebody who can moderate the court, and a little humor would do them a lot of good.

KWAME HOLMAN: After a late afternoon break, Kagan returned to the witness table. She faces another day of questioning when the hearings resume tomorrow.