Update: Kagan drops meek tone; believes DADT policy is ‘unwise and unjust; says ‘I respect and indeed I revere the military’
US Supreme Court nominee Elena Kagan said Tuesday she opposed the Pentagon ban on gays serving openly but revered the military and rejected charges she banished its recruiters as a law school dean.
As the Senate Judiciary Committee tasked with vetting her nomination opened a second day of hearings, Kagan dropped the meek tone of her opening statement on Monday to forcefully address any doubts she could be a fair judge.
“I’m not quite sure how I would characterize my politics, but one thing I do know is that my politics would be, must be, have to be, completely separate from my judging,” she told the committee.
Barring a serious misstep, Kagan was expected to win confirmation as one of the nine black-robed judges whose rulings have shaped the very fabric of US society, notably in a landmark 1954 case ending official racial segregation and the 1973 Roe v. Wade decision that made abortion legal.
The justices serve as the final arbiters of the US Constitution, setting precedents for the entire US judicial system and adjudicating bitter political disputes often in narrow 5-4 rulings that can take a lifetime to reverse.
Kagan, who would be just the fourth woman to reach the summit of US justice, has argued before the high court as US solicitor general, tasked with representing President Barack Obama’s administration.
Kagan faced sometimes prosecutorial questioning over the decision to set limits on military recruiter access to Harvard Law School students during her time as dean over the so-called “Don’t Ask, Don’t Tell” policy towards gays.
“I believe that the ‘Don’t Ask, Don’t Tell’ policy is unwise and unjust. I believed it then and I believed it now,” she told Senator Jeff Sessions, the panel’s top Republican.
But Kagan stood fast by past comments saying she viewed military service as the “noblest” profession — “I said it because I believe it” — noted military recruitment at Harvard actually rose during her time as dean.
“I respect and indeed I revere the military,” said Kagan, who stressed the limits imposed reflected Harvard policy to limit access to any recruiter that did not sign the university’s non-discrimination policy.
Sessions, who showed evident frustration and interrupted the nominee several times, did not back down and accused Kagan of “punishing the military” and giving answers “unconnected to reality.”
“I don’t deny that you value the military. I really don’t. But I do believe that the actions you took helped create a climate that was not healthy toward the military on campus,” he said.
Nominating US Supreme Court justices ranks among the most consequential powers of the US presidency, as a judge’s lifetime tenure typically stretches well beyond the influence of the temporary occupant of the White House.
Asked about the controversial Bush v. Gore decision that ended the disputed 2000 election in George W. Bush’s favor, Kagan declined to criticize the ruling but said she thought a case like that “might well come before the court again.”
She vowed to consider it carefully if it does, stressing “it’s hard to think of a more important question in a democratic society.”
Democrats and their two independent allies control 58 Senate seats, well over the 50 needed to confirm Kagan, but shy of the 60 votes needed to overcome any parliamentary delay tactics and proceed to a final confirmation ballot.
The White House and its Democratic allies have said they would like Kagan confirmed as liberal standard bearer John Paul Stevens’s replacement before the month-long August congressional recess, in time for the court’s fall session.
Kagan would be the second justice named by Obama after Sonia Sotomayor, the first Hispanic to reach the bench.
The hearing can be viewed live online via the following MSNBC video: