Kagan's story was this: Harvard always allowed students and military recruiters "full access" to each other. The law school had followed the university's anti-discrimination policy by channeling military recruiters through the law schools' veterans groups rather than the normal Career Services Office. The Law School believed they were complying with the Solomon Amendment, but when the Department of Defense disagreed, the military was placed back under Career Services. When the Third Circuit Court of Appeals (centered in Philadelphia) struck down the Solomon Amendment, Harvard returned to its previous, veterans-group-recruiting-only policy. During that year, the number of students joining the military went up, not down. When the DoD protested again, she and Summers together agreed to put the military back under Career Services.

Further, Kagan testified, "I respect and indeed I revere the military. My father was a veteran. One of the great privileges of my time at the law school was working with the wonderful students we had who were going to go into the military. . . ."

Sessions, a former federal prosecutor, did a full Hamilton Burger, cutting off Kagan's answers, his voice raised: "That's not the question." Admonished by Chairman Patrick Leahy (D-VT), he persisted until his time was up--then tried to press on afterwards. In a hall press conference during recess, he hinted that Kagan was a liar: "When my examination ended, I felt less confident than before," he said. "I feel that she was not rigorously accurate."

Sessions's was the only sustained attack so far. It seems likely to become the far-right radio attack on Kagan. It will energize some part of the Republican base. By the time Kagan has finished her explanation and produced her supporting witnesses, however, it's unlikely to fly with anyone who watched the hearings.

When I say that Kagan is good on television, I am not speaking reductively. Her performance so far has not been a triumph of a glib talking head. Her testimony has combined confidence, intelligence, poise, and superb preparation, and certainly given TV viewers a reason to think her qualified for the court. I would be stunned if her public support did not spike after today's hearing.

Senators might do well to use caution in taking her on. She has been ready for them. Kyl, for example, tried to grill her about a memo she wrote to Justice Marshall during her clerkship. "For once," she wrote, "the (Solicitor General's) office is on the side of the angels." Surely that showed an anti-government bias?

Was Reagan solicitor general, Charles Fried, in office at the time? Kagan asked. Yes, Kyl said.

She looked over her shoulder. There was Fried himself, like Marshall McLuhan in Woody Allen's Annie Hall, sitting in the guest section to support her nomination. "Sorry, Charles," she said.

Hearings are slated to run through Friday, but funeral services for Sen. Robert Byrd are set for Friday afternoon. They might provide senators a chance to declare victory and withdraw.

On the first day of the hearings, Hatch told Kagan, "Something tells me this is likely to be your last confirmation hearing." If I were a senator, I'd vote for her confirmation to make sure I never had to share the small screen with Elena Kagan again.

