Elena Kagan Accused of Withholding Opinions

On the third day of confirmation hearings for Supreme Court nominee Elena Kagan, members of the Senate Judiciary Committee accused the former Harvard Law School dean of withholding her personal opinions on key legal issues.

On Wednesday, Kagan continued to defend her policies toward military recruiting during her time as dean of the Law School—an issue that faced intense scrutiny on the second day of hearings—and avoided offering judicial opinions on issues like same-sex marriage and detention of prisoners, arguing that they were matters not yet decided by the Supreme Court.

When asked what her judicial opinion would be on a case that she had considered as Solicitor General, Kagan opted to withhold her opinion in an effort to separate her decisions as Solicitor General from her potential rulings as a judge and said, “I’ve not read the petitions and I’ve not read the briefs as I would as a judge.”

Senator Arlen Specter—a Pennsylvanian Democrat who was a Republican until last month—made clear his belief that Kagan was deliberately offering unsubstantive answers rather than being forthcoming with her opinion, and even cited a Chicago Law Review article in which Kagan criticized Supreme Court nominees for not being candid with their answers.

“Perhaps you haven’t answered much of anything," said Specter, who was one of 31 senators who voted against Kagan’s confirmation as Solicitor General last year. "It would be my hope that we could find some place between voting no and having some sort of substantive answers. But I don't know that it would be useful to pursue these questions any further.”

In an attempt to elicit a personal opinion from Kagan, South Carolina Republican Senator Lindsey O. Graham pointed to a 2009-2010 case in which then-Solicitor General Kagan’s office argued on behalf of the federal government that habeas corpus do not extend to detainees at the United States Air Force Base at Bagram, Afghanistan. But when Kagan was asked to make a decision on the case, were it to reach the Supreme Court, she again avoided the question.

“I don’t believe that that is a question that has come before the court,” Kagan said. “And given that I would not want to suggest how I would decide that.”

Though Kagan’s deanship at the Law School was examined with less vigor than the day before, Graham and others did raise the question of whether Kagan attempted to push a particular agenda by restricting recruiters’ access to the Law School’s career services office.

“I was simply trying to…enforce and defend the school’s very long-standing non-discrimination policy,” Kagan said. “The purpose of the policy was to express support for our students who were being discriminated against, for our gay and lesbian students who wanted to serve in the military and at the same time to ensure that our students…had excellent access to recruiters and vice-versa.”

Despite the persistent scrutinizing of Kagan’s past, some lawmakers are confident that the hearings are nearing their end and that Kagan’s confirmation is close to certain.

“I assume she will be,” Texas Republican Senator John Cornyn said of Kagan’s potential confirmation.

The probing lines of questioning were interspersed with some light-hearted banter by Graham, who preceded his inquiry about Kagan’s time at the Law School by saying that he “couldn’t even play football at Harvard University,” given his SAT scores. Kagan assured him that she would have accepted him.

—Staff writer Derrick Asiedu can be reached at dasiedu@fas.harvard.edu.