Kagan said that one of the cases Sessions cited had upheld the law's constitutionality. In the other, after consulting with Pentagon lawyers, she said she made a strategic decision to wait before taking action.
Kagan asserted that in both cases, she had acted "consistently with the responsibility which I agree with you very much that I have, to vigorously defend all statutes, including the statute that embodies the 'don't ask, don't tell' policy."
Democrats used their time with Kagan largely to criticize a recent string of 5-4 decisions by the court, especially its January ruling that struck down long-standing precedent to say corporations and labor unions were free to spend their own money on political activity.
Sen. Sheldon Whitehouse, D-R.I., said justices named by Republican presidents were "driving the law in a different direction by the narrowest possible margin." [See who donates money to Sen. Whitehouse.]
"I want to make it clear that I'm not agreeing to your characterizations of the current court. I think that that would be inappropriate for me to do," Kagan said. But she added that she believes the court should seek to make less far-reaching decisions to engender more consensus, which she called "a very good thing for the judicial process and for the country."
"I do believe that one of the benefits of narrow decisions, of approaching one case at a time and in each case trying to think of the narrowest way to decide the case, is to enable consensus," Kagan said.
Whitehouse cited a 9-0 ruling that banned school segregation in 1954 and a 7-2 decision in 1973 that said women have the right to an abortion as examples of far-reaching cases decided by large or unanimous majorities joined by justices appointed by presidents of both parties. He asked what efforts the justices should make to return to a "collegial environment at the court" so controversial rulings are not decided so narrowly.
"Every judge, every justice has to do what he or she thinks is right," Kagan said. "You wouldn't want the judicial process to become in any way a bargaining process," she said, although she added that the court and country are best served when the public "trusts the court as an entirely nonpolitical body."
Responding to Whitehouse, she did cast doubt on a key argument Roberts outlined in the political activity case. In his concurring opinion, the chief justice said legal precedents whose validity is "hotly contested" can be disregarded.
"It should be regarded with some caution," Kagan said of that line of thinking. She said there were "stronger reasons" for overturning precedents, including if they become unworkable, if courts reverse the cases that helped establish them or if new facts make them irrelevant.
Democratic Sen. Arlen Specter of Pennsylvania, thwarted several times in his attempts to get Kagan to say whether she would recommend that the Supreme Court hear specific cases, said he was giving up — and wondered aloud whether there was any way short of opposing her confirmation to get a straight answer.
"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," Specter said.
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