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Kagan: I didn't block military at Harvard

| June 30, 2010 9:00 PM

WASHINGTON (AP) - Supreme Court nominee Elena Kagan maneuvered carefully through tough Republican questioning on military recruitment at Harvard Law School, gun owners' rights and free speech Tuesday, giving little ground to critics and drawing strong praise from Senate Democrats who command the votes to confirm her.

In a long day of questioning at a hearing that stretched into the evening, Kagan came under fire from Sen. Jeff Sessions, the top Republican on the Senate Judiciary Committee, for her decision as dean of Harvard Law to bar recruiters from the school's career services office over the Pentagon's policy against openly gay soldiers. He said that amounted to "punishing" the military services, treating them in a "second-class way" and creating a hostile environment for the military on campus.

Sessions said he emerged from a heated back-and-forth with Kagan on the issue more "troubled" about her nomination than before.

Still, President Barack Obama's nominee soldiered through her second day of testimony on Capitol Hill apparently in good shape to win Senate approval - barring a major gaffe - in time to take her seat before the court opens a new term in October. If confirmed, Kagan, 50, would succeed retiring Justice John Paul Stevens.

Under questioning by Sessions, Kagan said she was trying to balance Harvard's nondiscrimination policy, which she believed "don't ask, don't tell" violated, with a federal law that required schools to give military recruiters equal access as a condition of eligibility for federal funds. She said she welcomed the military, and believed her policy of requiring recruiters to work through a student veterans group - first set by a predecessor - was a valid compromise.

"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 antidiscrimination policy and to protect the students whom it is ... supposed to protect, which in this case were our gay and lesbian students," Kagan said.

Sessions rejected called her version of events "disconnected from reality" and accused Kagan of defying federal law because of her strong opposition to the military's treatment of homosexuals.

"I know what happened at Harvard. I know you were an outspoken leader against the military policy," Sessions said "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."

At least one Republican appeared to have a higher opinion of Kagan.

"Your stock really went up with me," Sen. Lindsey Graham, R-S.C., told Kagan after she praised Miguel Estrada, one of President George W. Bush's failed judicial nominees.

Democrats were already in her corner. Said Sen. Sheldon Whitehouse, D-R.I.: "I think that Elena Kagan has been thorough and substantive in her answers." He said she was "off to a great start - very candid, very thorough, well done."

The committee called Kagan back Wednesday for a second and likely final day of questioning.

Kagan spoke favorably of televising Supreme Court proceedings. "It would be a great thing for the court, and it would be a great thing for the American people," she said.

Under persistent questioning by Sen. Charles Grassley, R-Iowa, she declined to say how she felt personally about the right to bear arms, but she did call recent Supreme Court rulings upholding gun rights "binding precedent." She also said the constitutionality of the death penalty was settled precedent, and asserted the court's rulings mandate that in any law regulating abortion "the woman's life and the woman's health have to be protected."

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