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Republicans Press Supreme Court Nominee on Legal Views

Confirmation hearings continued Tuesday for Elena Kagan, President Barack Obama's nominee for the Supreme Court of the United States. Tuesday was the first day that members of the Senate Judiciary Committee were able to question Kagan.

On the second day of hearings before the Senate Judiciary Committee, opposition Republicans asked Elena Kagan about her political beliefs and whether her views would influence her work as a justice on the Supreme Court.

Kagan sought to assure them that even though she has worked for two Democratic presidents, her political leanings would not be a factor in judging legal questions.

"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 said.

If confirmed, Kagan would replace retired Justice John Paul Stevens, who has been a leading liberal thinker on the high court for decades.

The top Republican on the Judiciary Committee, Senator Jeff Sessions of Alabama, asked Kagan about her tenure as dean of Harvard University Law School and allegations that she was anti-military for placing restrictions on military recruiters operating on campus.

Kagan said the limits on recruiting were justified because the military's so-called "don't ask don't tell" policy barring homosexuals from openly serving in the armed forces violated the law school's anti-discrimination policy.

This is part of that exchange.

Sen. Jeff Sessions(L),R-AL, questions Supreme Court nominee Elena Kagan during the second day of her confirmation hearings on Capitol Hill, 29 Jun 2010
Sen. Jeff Sessions(L),R-AL, questions Supreme Court nominee Elena Kagan during the second day of her confirmation hearings on Capitol Hill, 29 Jun 2010

SESSIONS: "Some of the military veterans, when they met with you the first time, expressed concern about an increasingly hostile atmosphere on the campus against the military. Didn't they express that to you?"

"Senator Sessions, I think, as I said to Senator [Patrick] Leahy, that I tried in every way I could throughout this process to make clear to all our students, not just to the veterans but to all our students, how much I valued their service."

Kagan currently serves as the U.S. Solicitor General, the Justice Department official who argues the government's point of view in cases that go before the Supreme Court.

Kagan received a good review from one Republican senator, Lindsey Graham of South Carolina. Graham praised Kagan for her work as solicitor general in arguing Obama administration positions on legal issues related to the war on terror.

"You have argued for the proposition that this president, and all future presidents, has the ability to detain an enemy combatant with sufficient process," he said.

Kagan was also asked whether she would consider using foreign law as a legal precedent in deciding a case. She said foreign law could be a source of good ideas, but should not be considered binding when interpreting the U.S. Constitution.

At times, Kagan avoided direct answers and even injected a little humor into the otherwise serious legal and political give and take, as she did in this exchange with Republican Senator Jon Kyl of Arizona.

KYL: "Do you agree with the characterization by some of my colleagues that the current court is too activist in supporting the position of corporations and big business?"

KAGAN: "Senator Kyl, I would not want to characterize the current court in any way. I hope one day to join it."

KYL: "And they said you are not political! Right!"

Kagan said she favored televising the oral arguments that take place before the Supreme Court, something the current court has opposed. Kagan said televising the proceedings would be great for the court and the country.

So far, Kagan's confirmation appears on track. If she is eventually confirmed by the full Senate, she would be the third woman on the current nine-member court.