Kagan, the U.S. solicitor general appointed by President Barack Obama to fill the vacancy on the nation's highest court created by the retirement of Justice John Paul Stevens, was questioned during a committee hearing on a wide range of issues and told committee members she believes in following precedent.
Sen. Jeff Sessions, R-Ala., the top Republican on the committee, questioned Kagan at length about her decision, as dean of Harvard Law School, to include the U.S. military among employers barred from recruiting at Harvard under the school's anti-discrimination policy -- because of the "don't ask, don't tell" policy on military services for gays and lesbians. Kagan said she reveres and honors military service, and military recruiters were able to recruit at Harvard by using a campus veterans' group's facilities.
"We were trying to make sure that military recruiters had full and complete access to our students, but we were also trying to protect our own anti-discrimination policy and to protect the students whom … the policy is supposed to protect, which in this case were our gay and lesbian students," Kagan testified. "And we tried to do both of those things."
The restriction, implemented in 2004 and 2005, was lifted after a U.S. Supreme Court ruling.
"I know what happened at Harvard," Sessions said. "I know you acted without legal authority."
Sessions said Kagan had not been "rigorously accurate" in her testimony and said he expected "intellectual honesty" from judicial nominees, the Los Angeles Times reported.
"The overall picture that she portrayed of the situation seems to me to be disconnected to the reality," he said. "I believe that's a serious matter."
Kagan was also questioned on the Second Amendment right to bear arms.
Sen. Chuck Grassley, R-Iowa, asked Kagan whether she believes the right to bear arms is a fundamental right. Kagan replied she thinks the Supreme Court decided that was the case Monday in McDonald vs. Chicago.
"And you agree with it?" Grassley asked.
"Good precedent going forward," she answered.
In McDonald vs. Chicago, the court held that the right of an individual to keep and bear arms as protected by the Second Amendment to the United States Constitution is incorporated by the due process clause of the Fourteenth Amendment and applies to the states.
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