Elena Kagan Confirmation Hearing Sets Stage for Political Showdown

WASHINGTON, June 28, 2010— -- With the Senate confirmation hearing for Supreme Court nominee Elena Kagan set to open later today, Republicans and Democrats are gearing up to spar over the would-be justice's personal views and qualifications to serve.

"This is a serious matter. She clearly has spent more of her life as a lawyer politician," Sen. Jeff Sessions, the top Republican on the Judiciary Committee, said on "Good Morning America." "She also has worked with judges and advocated judges that are the most activist kind in the world. I'm afraid that's what her philosophy is. If she's outside the mainstream she should not be confirmed."

Kagan, a former solicitor general for the Obama administration, previously served as dean of the Harvard Law School and as a staff attorney in the Clinton administration. She has never served as a judge.

Republicans are also expected to hone in on Kagan's role in banning military recruiters from the Harvard Law School career services office during her tenure as dean out of opposition to the "don't ask don't tell" policy.

But Democrats, including Committee Chairman Sen. Patrick Leahy, say criticism of Kagan is politically motivated and will ultimately not derail her ascension to the high court.

"I think what they're going to find when they get done is here's a woman who is a brilliant lawyer, the first woman to become dean of Harvard law school, no small achievement, and first woman to become solicitor general, and I think she'll become the third woman to sit on the U.S. Supreme Court," said Leahy on "GMA."

President Obama has also expressed confidence in his second high court appointee, calling some of the arguments against Kagan's confirmation in recent weeks "pretty thin gruel."

"I expect that my Republican colleagues and my Democratic colleagues should ask her tough questions, listen to her testimony, go through the record, go through all the documents that have been provided to the Senate Judiciary Committee and then vote their conscience," he said.

Hundreds of thousands of speeches, memos, e-mails and other records released in recent week have provided a more robust picture of Kagan. Here is a sampling of what they say about Kagan's views on hot-button issues:

The military's "don't ask, don't tell" policy that bans openly gay individuals from serving in the military is one issue where Kagan's views are crystal clear.

As Dean of Harvard Law School she initially objected to the presence of military recruiters at the campus career center because she believed the "don't ask, don't tell" violated the school's anti-discrimination policy.

But later, she explained in an e-mail to faculty and students that she was obliged under federal law to allow the military recruiters on campus or lose government funding. A challenge to the federal law eventually went to the Supreme Court, which ruled unanimously against Kagan's position.

In one October 2003 e-mail to all members of the law school she wrote: "I abhor the military's discriminatory recruitment policy. . . This is a profound wrong."

Senator Sessions expressed concern about Kagan's position. "What were you thinking" he asked, "when you punished our men and women in uniform?"

Documents released by the Department of Defense reflect the military's consternation with Kagan's role on the issue. "Dean Kagan," says one memo written in 2006 by Bill Carr, Principal Deputy Under Secretary of Defense for Personnel and Readiness, "has reportedly encouraged students to demonstrate against the presence of recruiters."

But in 2007 Kagan addressed the controversy in a passionate speech at West Point: "I have been grieved in recent years to find your world and mine, the U.S. military and U.S. law schools, at odds, indeed, facing each other in court — on one issue. That issue is the military's 'don't ask, don't tell' policy… But I would regret very much if anyone thought that the disagreement between American law schools and the US military extended beyond this single issue. It does not."