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Kagan indicates support for limiting corporate spending on elections
Kagan held firm, saying that after the 3rd Circuit ruling, she felt "obligated" to bar recruiters from the career services office because she "owed it to the law school" to uphold its anti-discrimination policy. But when the military again demanded full access, "we went through a discussion of a couple months and made a decision to do exactly what the Department of Defense wanted."
This did not satisfy Sessions, who appeared slightly surprised by the vigor of Kagan's pushback. "I'm just a little taken aback by the tone of your remarks," he said.
Sessions also pressed Kagan on her political views, asking whether she agreed with the assessment of Ron Klain, an adviser to Al Gore in the Clinton administration, that she was a "legal progressive," and of Greg Craig, the former White House counsel in the Obama administration, that she was a "progressive in the mold of Obama himself."
Kagan rejected the attempted labeling. "I'm not quite sure how I would characterize my politics but one thing I do know is that my politics would be, should be, have to be, completely separate" from her work as a judge, she said. While "it's absolutely the case that I've served in two Democratic administrations," she added, "I honestly don't know what [the legal progressive] label means."
"People should be allowed to label themselves," she concluded.
Kagan also faced some tough questioning from Democrats on the panel. Sen. Dianne Feinstein (Calif.) pressed her to explain why she believed that the gun rights laid out by several recent Second Amendment rulings by the court were now "settled law." And she pressed Kagan about rulings that have permitted regulations limiting access to abortion.
Kagan said she agreed with the position that the Clinton administration took on a procedure known by critics as "partial birth" abortion. As a White House aide, government documents from that time show, Kagan wrote in favor of congressional amendments that would have allowed the procedure if a woman might be at risk without it.
Answering Feinstein's question, Kagan said that, based on Supreme court cases in recent decades, "women's life and women's health have to be protected . . . in abortion regulation." She said that such protections are part of the "continuing holdings of the court."
Kagan, who sat impassively throughout Monday's 19 opening statements by senators, held forth fluidly throughout her responses, on several occasions interrupting senators with quips or asides. Several jokes were made at the expense of her attempts to skirt the recommendations of her own urgings in a long-ago law review article that Supreme Court nominees be more forthcoming in confirmation hearings.
Despite that earlier call to candor, Kagan was circumspect to the point of skirting the plea of Sen. Herb Kohl (D-Wis.) for her to open up about her motivations in the law. "I'm sure you're a woman of passion. Where are your passions?" he asked.
Amid audience giggles about the veteran Wisconsin Democrat's colorful wording, Kagan decided to hold back.
"I will take this one case at a time," she said. "It would not be right for a judge to come in and say I have a passion for this . . . and so I'm going to rule this way because I have this passion."