JUAN GONZALEZ: The Senate Judiciary Committee will continue questioning Supreme Court nominee Elena Kagan today after she mounted a spirited defense against her critics Tuesday. Barring a major gaffe, she is widely expected to move closer to succeeding Justice John Paul Stevens, who retired from the Supreme Court Monday.

Kagan once called the Supreme Court confirmation process, quote, “a vapid and hollow charade,” where nominees simply offer a, quote, “repetition of platitudes.” This was in a law review article she wrote fifteen years ago. Many critics in the press noted that in her own confirmation hearing, Kagan did not significantly depart from the script.

But Tuesday’s hearings did have a few heated, as well as light, moments during Elena Kagan’s exchanges with senators from both sides of the aisle. It began with the top Republican on the Senate Judiciary Committee, Senator Jeff Sessions, grilling Elena Kagan about her position on military recruiters while she was dean at Harvard. He accused her of punishing the military and defying federal law by barring recruiters from Harvard Law School’s career services office.

ELENA KAGAN: We never suggested that any members of the military, you know, should be criticized in any way for this. Quite to the contrary, we — you know, I tried to make clear, in everything I did, how much I honored everybody who was associated with the military on the Harvard Law School campus. All that I was trying to do was to ensure that Harvard Law School could also comply with its anti-discrimination policy, a policy that was meant to protect all the students of our campus, including the gay and lesbian students who might very much want to serve in the military, who might very much want to do that most honorable kind of service that a person can do for her country. The military at all times during my deanship had full and good access. Military recruiting did not go down. Indeed, in a couple of years, including the year that you’re particularly referring to, it went up. And it went up because we ensured that students would know that the military recruiters were coming to our campus, because I talked about how important military service was, because our veterans’ organization and the veterans on campus did an absolutely terrific job, a terrific service to their fellow students in talking to them about the honor of military service.


SEN. JEFF SESSIONS: Well, I would just say, while my time is running down, I’m just a little taken aback by the tone of your remarks, because it’s unconnected to reality. I know what happened at Harvard. I know you were an outspoken leader against the military policy. 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. This is what happened.

JUAN GONZALEZ: Elena Kagan’s views on national security issues also came under some scrutiny during Tuesday’s hearings. She managed to deflect most of the questions by noting that, quote, “The issue was likely to get to the courts.” In this exchange, Kagan is responding to California Democrat Dianne Feinstein’s request to clarify her position on the scope of executive power.

ELENA KAGAN: I would say that the circumstances in which the president can act as against specific congressional legislation, where the president can act despite Congress, are few and far between. And I think that that’s what Justice Jackson said in Youngstown, and I think that that’s what mostly the court has agreed with — few and far between. Now, are they nonexistent? Well, suppose Congress said something like, ’We’re going to take away the president’s pardon power,’ a power that’s specifically committed to the president by Article II. I think that that would be a hard case. I think a court might say, well, you know, notwithstanding that Congress tried to do that, Congress can’t do that. The president has that power, and it doesn’t matter what Congress says about the matter. But those are very few and far between. For the most part, the presumption is that the president, if told by Congress that he can’t do something, can’t do something.

AMY GOODMAN: South Carolina Republican Senator Lindsey Graham also drew Kagan into a discussion about her views on the rights and protections offered to detainees and whether she personally endorsed the stance she embraced as solicitor general against habeas corpus rights for detainees held in Bagram in Afghanistan.

SEN. LINDSEY GRAHAM: You argued against expanding habeas rights to Bagram detainees held in Afganistan, is that correct?


ELENA KAGAN: I did, Senator Graham.


SEN. LINDSEY GRAHAM: As a matter of fact, you won —-


ELENA KAGAN: In the DC Circuit.


SEN. LINDSEY GRAHAM: —- initially. And you probably won’t be able to hear that case if it comes to the Supreme Court, will you?


ELENA KAGAN: Well, that’s correct. And the reason —-


SEN. LINDSEY GRAHAM: Well, that’s good, because we can talk openly about it.


ELENA KAGAN: I mean, if I could just say, in general, the solicitor general only signs her name to briefs in the Supreme Court, authorizes appeal, but does not sign appellate briefs. But I determined that I should be the counsel of record on that brief, because I thought that the United States’ interests were so strong in that case, based on what the Department of Defense told our office about -—


SEN. LINDSEY GRAHAM: Well, I want — right, I want every conservative legal scholar and commentator to know that you did an excellent job, in my view, of representing the United States when it came to that case. You also said the courts of the US have never entertained habeas lawsuits filed by enemy forces detained in war zones. If courts are ever to take that radical step, they should do so only with the explicit blessing by statute. Do you stand by that?


ELENA KAGAN: Anything that is in that brief, I stand by as the appropriate position of the United States government.


SEN. LINDSEY GRAHAM: Fair enough. Well, the brief needs to be read by your supporters and your critics, because some of your supporters are going to be unnerved by it, some of your critics may like what’s in there. I’m here to say, from my point of view, that this area of your legal life, you represented the United States well, and I hope that Congress will rise to the occasion, working with the executive, to provide some clarity so that we’ll be able to find a way to fight this war within our value system.

AMY GOODMAN: Part of Senator Graham’s extended questioning of Elena Kagan. On the issue of abortion rights, she responded to a question from Senator Feinstein by emphasizing women’s health should be protected in any abortion regulations.

SEN. DIANNE FEINSTEIN: Let me ask you clearly. In a memo that you wrote in 1997, you advised President Clinton to support two amendments to a late-stage abortion bill to ensure that the health of the mother would be protected. Here’s the question. Do you believe the Constitution requires that the health of the mother be protected in any statute restricting access to abortion?


ELENA KAGAN: Senator Feinstein, I do think that the continuing holding of Roe and Doe v. Bolton is that women’s life and women’s health have to be protected in abortion regulation. Now, the Gonzales case said that with respect to a particular procedure, there was — that the statute Congress passed, which passed a statute without a health exception and with only a life exception, was appropriate because of the large degree of medical uncertainty involved.


SEN. DIANNE FEINSTEIN: Because of the procedure.


ELENA KAGAN: Because of the procedure.


SEN. DIANNE FEINSTEIN: Mm-hmm.


ELENA KAGAN: But with respect to abortion generally, putting that procedure aside, I think that the continuing holdings of the Court are that the woman’s life and that the woman’s health must be protected in any abortion regulation.

AMY GOODMAN: Some excerpts from Tuesday’s confirmation hearing of Supreme Court nominee Elena Kagan. The hearing continues today and is expected to last all week. When we come back from break, we’ll be joined by her colleague, Harvard law professor Charles Ogletree. Stay with us.

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AMY GOODMAN: We’re talking today about Elena Kagan, but also about much more. We’re joined by Charles Ogletree, professor of law at Harvard Law School and the founding and executive director of the Charles Hamilton Houston Institute for Race and Justice at the university. He’s known Elena Kagan for twenty-five years. He’s special counsel to President Obama and has written a number of other books.

Welcome to Democracy Now!

CHARLES OGLETREE: Thank you. Glad to be with you.

AMY GOODMAN: It’s very good to have you with us.

CHARLES OGLETREE: And glad to hear Miles Davis, and not Charles Davis.

AMY GOODMAN: So, why don’t we start with Elena Kagan?

CHARLES OGLETREE: Sure.

AMY GOODMAN: You have known her for twenty-five years, in what capacity?

CHARLES OGLETREE: She was a student at Harvard when I started teaching there in 1985, and I knew her as a brilliant Harvard Law Review editor. She actually worked on a phenomenal piece that my mentor and teacher, Derrick Bell, wrote about the Civil Rights Chronicles. I knew her when she was applying to the law school, as a tenured professor. I knew her when she worked in the Clinton administration. I was very glad, and exceedingly glad, when she was selected as our dean in 2003.

JUAN GONZALEZ: Now, there have been some criticisms that her record at — while at Harvard Law School, especially in terms of diversity, wasn’t something to write home about, in terms of diversifying the faculty there. Your sense of that track record?

CHARLES OGLETREE: I’ve been very clear: Elena Kagan did what she could do. And I think people sort of overstate the power of a dean, particularly at Harvard Law School. She was really trying to herd cats, the six years she was dean. And she had the right to recommend candidates, but the faculty had the right to vote on them, up or down. We actually did offer tenure to diverse candidates, African American and Latino, who didn’t come. They had great positions at other universities; they did not come to Harvard. And that’s not counted because they didn’t come. But no one worked harder to increase the number of students. She increased the number of students of all groups of color from 2003 to 2009. She increased the public interest program. She also reached out to encourage more faculty to come. And I celebrate the fact that she made an important dent in what we’re trying to do at Harvard.

AMY GOODMAN: Didn’t Derrick Bell quit Harvard because he said he wouldn’t come back until a woman was granted tenure?

CHARLES OGLETREE: He surely did, in 1990. And I actually offered to quit, as well. I didn’t have tenure. And I said, “Derrick, my wife and I have thought about this. I am a lawyer. I can try a case. I’ll resign in support of you.” He said, “Stay there.” That was 1991 when he left. And Lani Guinier was appointed in 1998. And I’m happy to report that a great Harvard Law School graduate and professor here in New York, Annette Gordon-Reed, has accepted a tenured position this year. She’ll be coming to Harvard next year. She’s the one who won the Pulitzer Prize for a book about Sally Hemmings and Thomas Jefferson. And so, we’re diversifying all the time. We can do a better job, no doubt about it, but we are going in the right direction. And we have another woman who is dean, Martha Minow, who is one of the most spirited, engaging and productive people I’ve ever known. So I think it’s looking good.

JUAN GONZALEZ: The questioning that — some of the snippets that we played, in terms of the issue of the military recruiting at Harvard, what is your recollection of what happened, and Elena Kagan’s role, and the impact of that debate on the Harvard community?

CHARLES OGLETREE: Well, let me lay my cards on the table. I was on the committee at Harvard Law School that set down the policy, the nondiscrimination policy, against all of our students in the 1990s, the placement committee. This is before Elena Kagan was on the faculty as a professor, and certainly before she was dean. And we said we will not allow any employer to discriminate against any of our students at all. And Elena Kagan inherited that policy, that Bob Clark had applied before her as dean and that Jim Vorenberg had applied before her as dean. And so, it wasn’t Elena Kagan’s policy. She was following what we ordered her to do, and that is to treat all our students the same.

After 2001, remember, all of us were saying that we wanted to do what we can to defend our country. I lost friends here in New York with the bombing, the terrorist attack of the Twin Towers. And so, our policy was that there were students, regardless of their sexual orientation, who wanted to be patriotic, who wanted to fight for their country, and should not have been denied that opportunity because their sexual orientation. She wasn’t creating the policy. She wasn’t expanding the policy. She was applying a policy that the faculty, across the board, supported. And more importantly, if you look at her history, students who were not gay, who were not lesbian, who were part of the military, supported her, because she was a fair and conscientious dean. I think Senator Sessions is way off board criticizing her in 2010 for a policy she inherited. And I think she actually acquitted herself well in responding to his questions and others.

AMY GOODMAN: I haven’t understood why it isn’t more simply dealt with, when the senators challenge her on this issue of not supporting the military, because they even take out the gay and lesbian issue — they now make it that she was against military recruiters — why she doesn’t say I’m so for the military that I want more people to be able to be in the military.

CHARLES OGLETREE: And she actually said that. In fact, she says our numbers went up, more students. As I said, students who, after 2001, wanted to support our country, in a candid way, more public interest activities during her tenure as dean. So, the good news is that more people involved. And I bet there are people who are in the military who didn’t disclose their sexual orientation, because they wanted to be patriotic and not be condemned or excluded because of their sexual orientation.

AMY GOODMAN: Now we want to talk about your mentor, Thurgood Marshall. Republican lawmakers repeatedly claim that Elena Kagan would become a so-called activist judge, citing her ties to Thurgood Marshall, the first African American Supreme Court justice. Kagan clerked for Marshall during the '87, ’88 term. Marshall's name was mentioned thirty-five times during the opening day of Kagan’s confirmation hearing. Jeff Sessions is the ranking Republican on the Senate Judiciary Committee.

SEN. JEFF SESSIONS: Importantly, throughout her career, Ms. Kagan has associated herself with well-known activist judges who have used their power to redefine the meaning of words of our Constitution and laws in ways that, not surprisingly, have the result of advancing that judge’s preferred social policies and agendas. She clerked for Judge Mikva and Justice Marshall, each well-known activists. And she has called Israeli Judge Aharon Barak, who has been described as the most activist judge in the world, as her hero.

AMY GOODMAN: That was Jeff Sessions. Your response?

CHARLES OGLETREE: Well, the comments by Senator Sessions and others, with all due respect, are really despicable, because he’s right Thurgood Marshall was an activist. He was an activist who said we can’t have a society that separates people on the basis of race. He’s going to fight against a segregation policy, and he won in Brown v. Board of Education in 1954, led by his mentor, Charles Hamilton Houston, who helped train him. He won twenty-nine out of thirty-two cases before an all-white, all-male, very cautious Supreme Court, to level the playing field. That’s an activist.

And as a justice, he didn’t write opinions by himself. He had to get the agreement of eight other people to be in the majority. So it wasn’t as if Marshall was out there alone. And he was an extraordinary lawyer who grew up Baltimore in segregation, who went to a black college, Lincoln University in Pennsylvania, who wanted to go to the University of Maryland Law School. He could not, not because he wasn’t qualified, but because he was black. The activist lawyer from Howard, top graduate, went to Maryland, filed a lawsuit with Charles Hamilton Houston. They won. He opened up doors in Maryland to black students that he could not get in as a law student. That’s the activism, to change America from what it was before Brown and change it to what it should be, a society that judged people, as Dr. King said, on the quality of their character, not the color of their skin. That’s his activism. He never wrote opinions about, you know, “I don’t care about the law. I’m going to do whatever I want to do,” and won, because he had to convince eight other people.

And I think he’s been — it’s been character assassination these past few days, and it upsets me and any fair-thinking American about how they have treated a great American hero. His son John, a US marshall, his son Goody, an attorney. Justice Marshall believed in law, believed in the role of the police. And the fact that he was a, quote, “liberal” justice is no way to disparage him, because he helped change America’s law that allowed people like me to go to places like Stanford, to go to places like Harvard, to be on the faculty. He couldn’t do it, but he opened up doors for others. So I celebrate his life. I don’t condemn it.

JUAN GONZALEZ: What about the issue, in terms of Kagan, that obviously Justice Marshall had not had judicial experience, but he tried lots of cases before he was named to the Supreme Court. She has neither had judicial experience nor a track record of actually even being involved in arguing cases in the courts.

CHARLES OGLETREE: It’s great question. Let me tell you why it’s important. Marshall actually was a judge. He was on the Second Circuit. He was the first black on the Second Circuit. He also was the first African American who was also the solicitor general. No woman, before Elena Kagan, had held it. Why is this appointment so important to have a non-lawyer, a non-judge as a Supreme Court justice? Let’s think back to 1954. Every one of those justices, every one, came from some other part — academia, government service, from a law firm, state attorney general. All these were men, back then, who had had some commonsense in judgment. Remember, Earl Warren was the governor of California. What was his qualifications? He was a political appointee. And they brought in a sense of reason, experience, independence, and they changed the world in ways that’s never been done before. It’s important to have judges on the Supreme Court, but it’s not required. And I think she is the youngest, and an independent member of the Court will bring a breath of fresh air about what really happens in the world.

AMY GOODMAN: I mean, Judge Rehnquist, the Supreme Court chief justice, was not a judge before he was appointed to the Supreme Court.

CHARLES OGLETREE: Not only Rehnquist. Rehnquist, Justice Brandeis, Justice Felix Frankfurter, Justice Powell, Lewis Powell, who was an important justice. All — there’s a whole list of people who came on and made an important difference.

AMY GOODMAN: Do you know Alabama Senator Sessions?

CHARLES OGLETREE: I do. And there are a lot of African Americans in Alabama who support him, and he supports them. I’m a little saddened by his level of inquiry, because I think that he has a right, in the advise and consent prong of the Constitution, to uphold someone for any reason without giving a reason. But I think to sort of characterize Elena Kagan as anti-military is just not true. And I think her full record is not reflected in what’s being discussed in the hearings today.

AMY GOODMAN: He was quoted in Talking Points Memo, Senator Sessions, comparing Citizens United, the Supreme Court decision that allows even more corporate money to flood into politics, with Brown v. Board of Education. Can you comment on that? You’ve written extensively about Brown v.

CHARLES OGLETREE: I can only comment on it and say I hope people read both opinions and see how much off-base that is. If he says there are points of departure, that’s true. Brown changed sixty years of segregation in 1954, after the Plessey case in 1896. And Citizens United, unfortunately, changed a generation of Supreme Court decisions limiting the impact. It ignored the important McCain-Feingold effort to try to limit money influencing results. And I don’t think it — we have one principle that’s clear: one person, one vote. To what extent should money now influence decisions, as opposed to the people decide who they want to support? I think Citizens United is a troubling decision, and I think it’s going to have another day in court, whether it’s now or later, when the Court gets a chance to reexamine it and the impact it’s going to have on making elections less fair than they have been in the past.

AMY GOODMAN: I want to play a clip of constitutional law attorney and Salon.com blogger Glenn Greenwald. These are some of his reservations about the Supreme Court nominee, Elena Kagan, that he expressed on Democracy Now!

GLENN GREENWALD: She’s somebody who has managed to avoid taking a position on virtually every single issue of importance over the last two decades. And in order to know what the impact of a Supreme Court nominee will be, it’s important not only to assess them in isolation, but also relative to who they’re replacing. And there’s a very substantial likelihood that Kagan is more conservative than the justice she’s replacing, which is John Paul Stevens, which means even if she’s a relatively decent person and a good Democrat, the effect that she would have, very likely, is to move the Court to the right.


But I think the real issue is, we know virtually nothing about what she thinks about anything. She’s managed to remain a totally blank slate. She has no experience, not even just not as a judge, but even in court, in a courtroom. I mean, prior to becoming solicitor general, she was barely ever even in a courtroom participating in any cases before judges. And so, it’s hard to see how she’s going to have the respect of or a good rapport with the other justices on the Court, given that her learning curve is going to be so steep. So, given all the other excellent alternatives that Obama could have chose, I think this is really quite an atrocious pick, though it remains to be seen if, in the confirmation process, we learn more about her, one way or the other.

AMY GOODMAN: By the way, Glenn Greenwald did tweet, after the first days of the confirmation hearings, that he’s a little more positive about Elena Kagan. But Professor Ogletree, your response?

CHARLES OGLETREE: I’m not surprised he’s a little bit more positive, because he’s learned something that he didn’t know before. And to say that she doesn’t have the judicial experience and that she’s a danger — I actually had the same comments about Justice David Souter. As law professors, we have unlimited First Amendment rights. We can say anything about anybody, anytime. And I said he was a stealth candidate, he was going to be a clone of then-Senator Sununu, and that there was a problem. And then I argued a case before the Supreme Court when he was there, a death penalty case in 1990, and he just stared at me the whole time. Do you know what? That was the first opinion he wrote in the favor of my client, James Ford in George, reversing a death penalty conviction. And what did I say about Justice Souter after hearing and seeing what he’s doing? The most thoughtful, fair, experienced, brilliant scholar ever — right? — on the Supreme Court. So we just don’t know.

And Elena Kagan doesn’t know what kind of justice she’s going to be. But I tell you this, she’ll be smart, she’ll be independent, she’ll fit right in, she’ll know the law, because they said she wasn’t ready to be a dean, but she changed our law school. They said she wasn’t ready to be the solicitor general — she had never argued a case before the Supreme Court or any appellate court — she’s done a tremendous job as the first woman solicitor general. She’s going to be a superb Supreme Court justice. And she’s fifty years old. She’s going to be there probably longer than anyone currently on the Court. She has a long time to define what her ideology is going to be. We won’t know in a year or two years or five years or ten years. She may not know. But she definitely is going to be a plus on this Court, and I think we should applaud the fact that President Obama had the foresight to appoint a young, independent, aggressive, thoughtful, incredible and brilliant candidate to the Supreme Court.

AMY GOODMAN: Your his special counsel. Did you recommend her to President Obama?

CHARLES OGLETREE: I supported her very strongly, because I thought she had a lot to add. There are other talented people, as well, that I thought would be great. There are African American women that I thought would be great.

AMY GOODMAN: Like?

CHARLES OGLETREE: I’m not going mention names, because they weren’t nominated, and I don’t want them to be hurt if there’s another opportunity. And there are also other progressive lawyers, more progressive than Elena Kagan, no doubt about it. But the question is, can they clear the hurdle through the Senate? Perhaps not. She can, she will, and she’ll do a great job.

JUAN GONZALEZ: Well, we’d like to turn from Kagan to your latest book.