Elena Kagan

One message Republicans tried to hammer away at this week, in an effort to derail Elena Kagan’s nomination to the U.S. Supreme Court, must have struck many LGBT viewers of her confirmation hearing as deeply ironic. They said she treated the men and women of the military as “second-class citizens,” when she stood up for her belief that the law barring gays from the military was “a profound wrong.”

And yet gay groups have concerns of their own. Lambda Legal Defense and Education Fund, a national gay legal group, shared its concerns over Kagan –though they did so through a letter to Senate Judiciary Committee Chair Senator Patrick Leahy (D-Vt.). The group is worried Kagan might show too much deference to religious objections to non-discrimination laws and not enough deference to existing Supreme Court precedents that have largely benefited gays.

But it was Kagan’s actions as dean of Harvard Law School in the dispute over gays in the military that became a large focus of the first two days of her confirmation hearing. Republicans suggested Kagan’s efforts to balance the university’s non-discrimination policy with the military’s need to recruit lawyers amounted to an effort to defy that federal law. More generally, they also sought to label her “progressive,” a term they apparently consider negative.

Kagan initially deflected the effort to stamp her identity with a politically loaded characterization.

“I honestly don’t know what that label means,” said Kagan, in response to question from the ranking minority member, Senator Jeff Sessions of Alabama, as to whether a former colleague was correct when he identified her as a “legal progressive.”

“I think people should be allowed to label themselves,” said Kagan. “I don’t know what that label means, and I’m not going to characterize it one way or another.” She also noted that her political views would be a matter separate from what her views would be concerning the constitutionality of a law.

“Well, it means something,” said Sessions, “and I would have to classify you as someone in the theme of a legal progressive.”

Later in the day, Senator Tom Coburn (R-Okla.) later said he didn’t know what a progressive is either but that he thinks she’s a liberal. Senator Lindsey Graham (R-SC) asked her whether she is a “progressive in the mold of Obama himself.”

Kagan said she’d been a Democrat all her life, worked for two Democratic presidents, and “that’s what my politics are.”

Graham pressed again, asking whether she’s “progressive.”

“My political views are generally progressive,” acknowledged Kagan.

During his time questioning Kagan Tuesday, Sessions went on to attack, regarding two laws passed by Congress: the “Don’t Ask, Don’t Tell” law barring gays from the military and the Solomon Amendment prohibiting federal funds to universities that barred military recruiters because of the “Don’t Ask, Don’t Tell” policy.

Adopting the procedure and demeanor of a prosecuting attorney grilling a defendant, Sessions painted a picture of Kagan as complying with military recruiters only under threat of losing federal funds.

“You personally opposed ‘Don’t Ask, Don’t Tell’,” pressed Sessions.

“I do oppose it,” said Kagan, “and I did then.”

“And in a 2003 email,” said Sessions, “you wrote, ‘I abhor the military’s discriminatory recruitment policy. . . This is a profound wrong.”

“I believe the policy is unwise and unjust. I believed it then, and I believe it now,” said Kagan.

Kagan added, however, that she tried, as dean, to “make sure military recruiters had full access” to potential candidates for the military but to also protect Harvard’s own non-discrimination policy and students, including gay and lesbian students.

“I tried to do both of those things,” said Kagan.

“But you couldn’t do both,” said Sessions, “as it became clear.”

He continued, saying she “participated in protests” against the military policy, said she was “very opposed to two government policies,” and participated in submitting a legal brief “attacking the Don’t Ask, Don’t Tell policy.” He also noted that Kagan used a 3rd Circuit U.S. Court of Appeals decision that found the Solomon Amendment to be unconstitutional as an excuse to begin barring military recruiters at Harvard –even though Massachusetts is not a state within the 3rd Circuit.

“We were never out of compliance” with the law, said Kagan. She said, after the 3rd Circuit decision, military recruiters were still “welcome on campus, but through the auspices” of a campus veterans organization even though she thought it was appropriate to go back to Harvard’s original non-discrimination policy.

“DOD came to us and said, ‘ignore the 3rd Circuit decision, we’re going to the Supreme Court,’ and we did change back, said Kagan. “We did precisely what DOD asked us to do.”

“You didn’t do what the DOD asked you to do,” said Sessions.

Kagan held her ground, saying Harvard believed it was acting in compliance, but Sessions interrupted to say, “You stopped complying” and, as a result of that, he claimed, “that season” of recruiting “was lost.” He said Kagan never conveyed its position to DOD “in a straight up way” and that DOD said its recruiters were “blocked, stonewalled, and getting the runaround.”

Again, Kagan held her ground, noting that no season of recruiting was lost by the military and that, in fact, in the year to which Sessions was referring, the number of Harvard students recruited by the military went up, compared to previous years.

“You decided [the Solomon Amendment] was inappropriate and you reversed it,” said Sessions. “You treated [the military] in a second-class way.”

The sparring continued for some time and eventually, Sessions ran out of time (each senator’s time to ask questions is strictly limited). Committee Chairman Patrick Leahy (D-Vt.) gave Kagan a chance to make her final remarks on the matter.

“My father was a veteran,” said Kagan, “and I had students who served in the military and who wanted to” serve in the military.

“I felt the need to defend the non-discrimination policy,” said Kagan, “and protect students, including gay and lesbian students who wanted to serve and do that most honorable kind of service.”

In a press conference during recess, Leahy said he thinks Kagan’s testimony “lays to rest for good the issue of Harvard and [her] somehow being anti-military.”

“I think it’s very obvious that Solicitor General Kagan has shown strong support of the military, has strong respect for the military,” said Leahy. “She’s certainly not anti-military.”

Sessions told reporters during recess that Kagan appeared to be “crafting her testimony” to fit a White House spin on the Harvard military recruiting dispute. He said Kagan was responsible for a reversal of Harvard’s willingness to enable military recruiters to visit campus.

A number of documents submitted to the Senate Judiciary Committee and a number of witnesses scheduled for this week’s hearing have indicated that Kagan has both publicly and privately expressed her respect for the military.

After being attacked for having disagreed with a Congressional law—one concerning military exclusion of gay people—she was then attacked for having defended a Congressional law—one that had limited corporate funding to influence elections.

Senator Orrin Hatch (R-Utah) asked Kagan whether she agreed with the Supreme Court’s recent decision, Citizens United v. Federal Elections Commission. As Solicitor General, Kagan’s job was to defend the federal campaign funding law that Citizens United struck down, and she said so.

Hatch was taking on the difficult task of trying to defend the Citizens United decision, which has been enormously controversial and had become great fodder for Democrats against Republicans during the first day of the confirmation hearing.

Later, Senator Arlen Specter (D-Penn.) tried to pin down Kagan on whether she considered the Supreme Court’s ruling in Citizens United disrespectful of Congress. Kagan tried to avoid answering the question, and Specter, with apparent frustration and impatience, moved on and tried to get Kagan to criticize specific conservative justices, especially Justices John Roberts and Sam Alito, who he said gave the Committee “assurances of deference” to Congress and then “there was none.” Kagan repeatedly avoided making such statements.

In fact, much of Day One, June 28, of the confirmation hearing was taken up with partisan bomb-throwing, in between remarks in praise of Senator Robert Byrd (D-WVa.), the Senate’s longest serving member, who died very early Monday morning.

The political sideshows on Monday may have been due in part because so many political pundits have declared Kagan’s confirmation is virtually inevitable; it may also have been due to the fact that confirmation hearings have become a somewhat predictable series of thrusts and parries with a nominee.

Kagan’s own opening statement on Monday was unremarkable except, perhaps, for the fact that she did not make the traditional introductions of individual family members. Kagan’s parents are deceased, but her two brothers were in the confirmation hearing with her. Instead of introducing them, Kagan, who is not married, simply thanked the “family, friends, and students” who had joined her in the confirmation room and then turned around and looked down a row of people sitting behind her. Republicans made clear on Monday that they would seek to portray Kagan as anti-military, lacking in judicial experience, and inclined toward “activism.”

Responding to questions about “activist judges,” from Senator John Cornyn (R-Texas), Kagan said she thinks judges are “always constrained by the law” where the text is clear. But where the text is not clear, said Kagan, judges must look to other “sources of law,” including original intent and “continuing history and traditions.”

Senator Jon Kyl (R-Ariz.) said he has “substantive concerns” about Kagan’s views on “gay marriage” and other issues. The only other mention of gay marriage in the first two days of the five-day hearing came from Senator Sheldon Whitehouse (D-R.Is.). Whitehouse took the occasion of his opening statement Monday to criticize the current Supreme Court for having taken the “extraordinary” action of “inject[ing] itself into the day-to-day business of the lower courts, issuing an extraordinary ruling prohibiting the online streaming of the gay marriage trial in San Francisco.”

Some Kagan supporters pointed to the fact that Senator Scott Brown (R-Mass.), along with Senator John Kerry (D-Mass.), introduced the nominee to the committee as a sign that Republicans can support her confirmation. But it is tradition that the two senators from a nominee’s home state introduce him or her, and Brown’s words fell far short of support. He called her an “impressive and pleasant individual” and said she had “gone far since graduating” from Harvard. Then, he simply reiterated some details from her resume.

In his June 25 letter to Leahy, Lambda’s legal director Jon Davidson expressed its concern about a memo Kagan wrote in 1996, as associate counsel in the Clinton White House. In the memo, Kagan disagreed with a California Supreme Court decision that a landlord could not discriminate against an unmarried couple based on the landlord’s religious belief against co-habitation before marriage. The California court said the landlord had the option of getting out of the rental business, rather than compromise her religious views. Kagan called that “quite outrageous” and worried that “this kind of reasoning could strip” the Religious Freedom Restoration Act “of any real meaning.” Lambda noted that the U.S. Supreme Court later struck down the RFRA as largely unconstitutional.

“It is of great importance to Lambda Legal and our constituents that any individual who would be appointed to the Supreme Court be willing to follow the precedent” set forth in the Supreme Court’s determination. Davidson said that “permitting those with religious objections to flout laws applicable to all others who enter the commercial sector unjustifiably would impose serious harms on workers, tenants and consumers, open dangerous loopholes to protections against discrimination; and contravene crucial state interests in assuring equality for all.”

Lambda also took exception with a statement Kagan made last year during her confirmation hearing for Solicitor General: “There is no federal constitutional right to same-sex marriage.”

Davidson said Lambda is “particularly concerned that every judicial nominee be committed to honoring and enforcing the core constitutional guarantees of equal protection, liberty and due process for all Americans, regardless of sexual orientation, gender identity or HIV status.”

“In order for any nominee to receive the approval of your Committee,” wrote Davidson, “we believe it should be clear the nominee will respect these core constitutional principles and, in particular, is committed to following as binding legal precedent cases such as Lawrence v. Texas, Romer v. Evans, and Roe v. Wade. The decisions in all three cases have been critical to the improving the ability of LGBT people to ensure equal protection under the law.

As of the end of Tuesday’s hearing, no senator had asked Kagan a question about gay marriage. Coburn, without any references, said in passing that he thinks she pro gay-marriage. Kagan did not attempt to correct that statement.

But the last senator to question Kagan on Tuesday—Senator Ben Cardin (D-Md.)—did ask her whether the constitution’s promise of “We the people” covers legal protection against job place discrimination based on sexual orientation and gender identity. The question was not academic. Cardin noted that the Employment Non-Discrimination Act (ENDA) has over 200 co-sponsors and that he expects the bill to pass this year.

“I am certain there’s going to be a legal challenge” to that bill, he noted, asking Kagan what her consideration will be in examining such a challenge.

“The policy decision,” said Kagan, “is up to Congress and the question that might come before the court—if they are statutory in nature—the appropriate question to ask will be what Congress intended.”

It was, as is typical of Kagan, a cautious answer to a controversial question.