Ms. Kagan said she personally disagrees with the “don’t ask, don’t tell” policy, now under review, but that she admires the military.
“I respect and indeed I revere the military,” said Ms. Kagan, who added that her father served in the military. “I always tried to make sure I conveyed my honor for the military.”
Mr. Sessions also said he was concerned over characterizations that Ms. Kagan was a “progressive in the mold of [President] Obama” and that she would bring a “progressive influence” to the court with the intent of reinterpreting the Constitution to advance liberal goals.
“That’s a dangerous philosophy,” he said. “That’s a philosophy not justified by any judge on the court.”
Ms. Kagan, who worked as an adviser in the Clinton administration, answered, “I don’t know what that [progressive] label means.”
“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.
Under persistent questioning by Sen. Charles E. Grassley, Iowa Republican, she declined to say how she felt personally about the right to bear arms, but she did call recent Supreme Court rulings upholding gun rights’ “binding precedent.”
“I love Justice Marshall. He did an enormous amount for me,” she said. “But if you confirm me to this position, you will get Justice Kagan, you won’t get Justice Marshall, and that’s an important thing.”
But that admiration sparked a round of close questioning from Sen. John Cornyn, Texas Republican, who asked the nominee at one point if she agreed with a number of statements attributed to the now-deceased black justice.
“It’s clear that [Marshall] considered himself a judicial activist and was unapologetic about it,” said Mr. Cornyn. “He described his judicial philosophy as quote, ‘Do what you think is right and let the law catch up.’ “
Judiciary Committee Chairman Patrick J. Leahy, Vermont Democrat, asked Ms. Kagan to respond to Republican criticism that she agreed with comments from Marshall that the Constitution as originally drafted was “imperfect.”
The nominee said that Marshall “was talking about the fact that this was a Constitution that counted slaves as three-fifths of a human being, that didn’t do anything about that original sin of our country.”
She said the 14th Amendment, which gave full citizenship to blacks, created “a different Constitution for America.”
But she said that constitutional changes “come outside the formal amendment process as well,” such as a re-interpretation of the document that led to the abolition of “separate but equal” schools in the landmark Brown vs. Board of Education case.