WASHINGTON (BP)–Supreme Court nominee Elena Kagan restated her opposition to the military’s Don’t Ask, Don’t Tell policy and acknowledged that her political views are “generally progressive,” but she rejected the label of “legal progressive” during the Senate Judiciary Committee’s first day of questioning Tuesday.
Kagan fielded questions on a host of issues, including homosexuality and abortion, yet followed in the footsteps of most recent high court nominees and withheld her specific legal views. If confirmed, Kagan — President Obama’s current solicitor general — would replace John Paul Stevens, who retired. Stevens was one of the court’s most liberal members, so her confirmation likely won’t tip its ideological balance.
Tuesday’s most contentious exchange involved Kagan and Sen. Jeff Sessions, R.-Ala., who asked Kagan about Harvard’s decision when she was law school dean to limit military recruiters’ access to campus. The law school based its decision on its opposition to the military’s Don’t Ask, Don’t Tell policy which prevents homosexuals from serving openly.
A unanimous U.S. Supreme Court eventually ruled against Harvard and a handful of other schools that also were hampering military access. At issue was the federal Solomon Amendment, which requires schools that receive federal funds treat the U.S. military the same as they treat other employers recruiting on campus.
“I have repeatedly said that I believe the Don’t Ask Don’t Tell policy is unwise and unjust,” Kagan told senators. “I believe it then and I believe it now. We were trying to do two things: 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 anti-discrimination policy and to protect … gay and lesbian students.”
Said Sessions, “You couldn’t do both, as it became clear as time went on.”
Kagan replied by arguing military recruiters had access to the campus, just not through the school’s career services office.
“I am a little taken aback by the tone of your remarks, but it’s unconnected to reality,” Sessions said, pointing to Department of Defense documents he said contradicted Kagan’s testimony. “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 [recruiters] equal access until you were threatened by the United States government of loss of federal funds.”
Kagan, given a chance to respond before Sessions’ time ended, responded, “I respect, indeed, I revere the military. My father was a veteran. … I always tried to make sure that I conveyed my honor for the military and I always tried to make sure that the military had excellent access to our students. … But I also felt a need to defend our school’s very longstanding anti-discrimination policy and to protect … gay and lesbian students who wanted to serve in the military.”
Each senator had 30 minutes for questioning, with Republicans and Democrats taking turns. Sen. Chuck Grassley, R.-Iowa, asked Kagan about remarks in which she had called former Israel Supreme Court Judge Aharon Barak her “judicial hero.” Conservatives view Barak — who once wrote that judges can give “a statute a new meaning” — as one of the world’s most activist judges.
“Justice Barak’s philosophy is so different from anything that we would use or want to use in the United States,” Kagan said. “For one thing, Israel is a country without a written constitution — a very fundamental difference from the United States. … Nothing about what I said about Justice Barak suggests in any way that I think that his ideas about the judge’s role in constitutional interpretation should be transplanted to the United States.”
Noting she is Jewish, Kagan said she admires Barak for his role in creating an independent judiciary in Israel and for his helping Israel become a “very strong rule-of-law nation.”
Sen. Herb Kohl, D.-Wis., tried to learn more of Kagan’s legal thinking, asking if she is an “originalist” — someone who primarily tries to decide cases by looking at the original meaning of the text — or if she views the Constitution as a “living” document, a phrase preferred by left-leaning scholars and judges.
“I don’t really think this is an either/or choice,” Kagan said. “I think that there are certain 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.”
For instance, she said, when the Constitution says that senators must be 30 years old, she said, “then the inquiry has to stop.”
“But there are many, many provisions of the Constitution, of course, in which that’s not the case” and the decisions aren’t so easy, she said.
There are cases, she said, when the “original intent is unknowable.”
“We live in a world that’s very different from the world in which the framers lived,” Kagan said.
She pledged to look at cases “practically” and “pragmatically.”
Sessions asked Kagan about a quote from vice presidential Chief of Staff Ronald Klain, who said Kagan is “clearly a legal progressive.”
“I honestly don’t know what that label means,” she answered. “I’ve worked in two Democratic administrations. Sen. [Lindsey] Graham suggested yesterday, and I think he’s right, that you can tell something about me and my political views from that. But as I suggested to you, my political views are one thing ….”
After the two went back and forth, Sessions said, “Having looked at your overall record … I think I would have to classify you as something in the theme of the legal progressive.”
Later, answering questions from Graham, Kagan said she’s been a Democrat all her life and added, upon prodding, “My political views are generally progressive.”
Sen. Dianne Feinstein, D.-Calif., asked a question related to the Supreme Court’s 2007 decision in Gonzales v. Carhart upholding the federal partial-birth abortion ban. Feinstein said it was the court’s first abortion case that did not provide for an exception for the woman’s health. “Do you believe the Constitution requires that the health of the mother be protected in any statute restricting access to abortion?” Feinstein asked.
Said Kagan, “I do think that the continuing holding of Roe [v. Wade] and Doe v. Bolton is that women’s life and women’s health have to be protected in abortion regulation. Now, the Golzales case said that with respect to a particular procedure, that the statute Congress passed — which passed a statute without a health exception and with only a life exception — was appropriate because of the large degree of medical uncertainty involved because of the procedure. But with respect to abortion generally, putting that procedure aside, the continuing holdings of the court are that the woman’s life and the woman’s health must be protected in any abortion regulation.”
Michael Foust is an assistant editor of Baptist Press.