Kagan Spars with Senate Republicans in Marathon Day of Questioning

Elena Kagan promised to separate her politics from judging if confirmed.

June 29, 2010, 8:54 AM

WASHINGTON, June 29, 2010— -- An at times spirited Elena Kagan faced a marathon session of questioning today before the Senate Judiciary Committee, where she fended off Republican attempts to cast her as a "liberal activist" and drew praise from Democrats, who have the votes to confirm her.

"You are dancing a little bit much to my chagrin. Maybe you should be on Dancing with the Stars,"said Republican Sen. Tom Coburn late in the day. "I think you are a liberal, and you are proud enough to defend that... but I do not know one judge who can 100 percent separate themselves of who you are when you judge."

But Kagan, who has never been a judge and has served in two Democratic administrations, repeatedly pledged she could and would remain impartial if confirmed to the Supreme Court.

"My politics would be, must be, have to be completely separate from my judging," she said. "Judging is about considering how the law applies to the case, not how your own personal views might suggest anything about the case."

Throughout the day Kagan was also grilled about her decision as dean of Harvard Law School to forbid military recruiters from the campus career center because she believed the "don't ask don't tell" policy violated the school's anti-discrimination policy.

"In fact, you were punishing the military," said Sen. Jeff Sessions, the top Republican on the Judiciary Committee.

Kagan said that she had accommodated military recruiters by allowing them to work through the campus' veterans organizations instead of the career services center. And she insisted "the military had full access to our students at all times," adding she deeply respects and reveres the military.

"I am just a little taken aback by the tone of your remarks because it's unconnected to reality," Sessions replied. "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."

But Kagan didn't back down from her views, reaffirming her opposition to the military's ban on gays and lesbians serving openly, telling the Committee, "I have repeatedly said I believe don't ask don't tell is unwise and unjust."

Kagan also seemed to distance herself from a law review article in which she argued Supreme Court nominees should be more forthcoming about their views on key issues during their confirmation hearings, offering few details of her own.

The former Obama administration solicitor general acknowledged the 15-year-old article was "a little bit off" and only offered that she would consider each case before the court "as fairly and objectively as I can."

Kagan: 'We Are All Originalists'

Kagan, who is nominated to become the 112th justice and only the fourth woman to serve on the U.S. Supreme Court, has also argued that her diverse life experiences have prepared her well for the challenges of sitting on the bench.

"I've learned that we make progress by listening to each other, across every apparent political or ideological divide," she said Monday. "I've learned that we come closest to getting things right when we approach every person and every issue with an open mind. And I've learned the value of a habit that Justice Stevens wrote about more than 50 years ago -- of 'understanding before disagreeing.'"

In an exchange with Committee Chairman Sen. Patrick Leahy today, Kagan said she views the Constitution as an immutable document that can only be changed by amendment but that courts must constantly apply it to "new situations and new contexts."

"We apply what [the framers] say, what they meant to do, so in that sense we are all originalists," she said.

Later, Kagan directly addressed the controversial ban on partial birth abortion, which the Supreme Court has upheld.

"With respect to abortion generally, putting that procedure aside, I think that the continuing holdings of the court are that the woman's life and that the woman's health must be protected in any abortion regulation," she told Sen. Diane Feinstein.

In several lighter moments, Kagan used humor to cut through the high-pressure questioning, causing the gallery to erupt into laughter and revealing her beaming smile.

When Sen. Lindsay Graham, R-S.C., asked Kagan about her whereabouts at the time of the 2009 attempted Christmas Day airplane bombing, Kagan quipped with a straight face "like all Jews, I was probably at a Chinese restaurant."

"I'm enjoying some of the ethnic humor here," said Sen. Patrick Leahy later.

But Kagan wasn't the only one cracking jokes during today's hearing.

Sen. Orrin Hatch, R-Utah, who had momentarily engaged in a side debate with a colleague, turned to Kagan to explain sometimes things have to stop because senators squabble.

"We have to have disagreements or this would be boring as hell," Hatch said of the hearing.

"And it gets the spotlight off me," Kagan quickly replied with a grin.

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