[Senate Hearing 111-361]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 111-361

CONFIRMATION HEARINGS ON THE NOMINATIONS OF THOMAS PERRELLI NOMINEE TO 
  BE ASSOCIATE ATTORNEY GENERAL OF THE UNITED STATES AND ELENA KAGAN 
          NOMINEE TO BE SOLICITOR GENERAL OF THE UNITED STATES

=======================================================================

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

                           FEBRUARY 10, 2009

                               __________

                          Serial No. J-111-81

                               __________

         Printed for the use of the Committee on the Judiciary








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                  PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin                 ARLEN SPECTER, Pennsylvania
DIANNE FEINSTEIN, California         ORRIN G. HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin       CHARLES E. GRASSLEY, Iowa
CHARLES E. SCHUMER, New York         JON KYL, Arizona
RICHARD J. DURBIN, Illinois          JEFF SESSIONS, Alabama
BENJAMIN L. CARDIN, Maryland         LINDSEY GRAHAM, South Carolina
SHELDON WHITEHOUSE, Rhode Island     JOHN CORNYN, Texas
RON WYDEN, Oregon                    TOM COBURN, Oklahoma
AMY KLOBUCHAR, Minnesota
EDWARD E. KAUFMAN, Delaware
            Bruce A. Cohen, Chief Counsel and Staff Director
                  Matt Miner, Republican Chief Counsel


















                            C O N T E N T S

                              ----------                              

                       TUESDAY, FEBRUARY 10, 2009
                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Cardin, Hon. Benjamin L., a U.S. Senator from the State of 
  Maryland.......................................................     1
    prepared statement...........................................   198
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   244

                               PRESENTERS

Reed, Hon. Jack, a U.S. Senator from the State of Rhode Island 
  presenting Elena Kagan, Nominee to be Solicitor General, 
  Department of Justice..........................................     5

                       STATEMENT OF THE NOMINEES

Kagan, Elena, Nominee to be Solicitor General, Department of 
  Justice........................................................    46
    statement....................................................   230
    Questionnaire................................................    48
Perrelli, Thomas J., Nominee to be Associate Attorney General, 
  Department of Justice..........................................     7
    statement....................................................   269
    Questionnaire................................................     9

                         QUESTIONS AND ANSWERS

Responses of Elena Kagan, to Questions submitted by Senators 
  Coburn, Cornyn, Grassley, Hatch, Leahy, Sessions and Spector...   144
Responses of Thomas J. Perrelli, to Questions submitted by 
  Senators Coburn, Grassley, Spector and Wyden...................   123

                       SUBMISSIONS FOR THE RECORD

Adler, J., National President, Federal Law Enforcement Officers 
  Association, Lewisberry, Pennsylvania, letter..................   181
Allen, Ernie, President & CEO, National Center for Missing & 
  Exploited Children, Alexandria, Virginia, letter...............   183
Alliance Defense Fund (ADF), Scottsdale, Arizona, letter.........   184
Berenson, Bradford A., Sidley Austin LLP, Washington, DC:
     January 28, 2009, letter....................................   191
     January 29, 2009, letter....................................   193
Campbell, Nancy Duff, Co-President and Marcia D. Greenberger, Co-
  President, National Women's Law Center, Washington, DC:
    January 23, 2009, letter.....................................   195
    February 6, 2009, letter.....................................   196
Cappuccio, Paul T., Executive Vice President and General Counsel, 
  Time Warner, New York, New York, letter........................   197
Clement, Paul D., Partner, King & Spalding LLP, Washington, D.C., 
  letter.........................................................   201
Delliner, Walter, Theodore B. Olson, Charles Fried, Kenneth W. 
  Starr, Drew S. Days III, Walter Dellinger, Seth P. Waxman, 
  Theodore B. Olson, Paul Clement, and Gregory G. Garre, joint 
  letter.........................................................   203
Denniston, Brackett B., III, Senior Vice President and General 
  Counsel, GE, Fairfield, Connecticut, letter....................   205
Donnelly, Elaine, President, Center for Military Readiness, 
  Livonia, Michigan, letter......................................   206
Estrada, Miguel A., Gibson, Dunn & Crutcher LLP, Washington, 
  D.C., letter...................................................   207
Flom, Joseph H., Skadden, Arps, Slate, Meagher & Flom LLP, New 
  York, New York, letter.........................................   209
Frey, Andrew L., Assistant to the Solicitor General, Deputy 
  Solicitor General; Kenneth S. Geller, Assistant to the 
  Solicitor General, Deputy Solicitor General, Philip Allen 
  Lacovara, Assistant to the Solicitor General, Deputy Solicitor 
  General, Andrew J. Pincus, Assistant to the Solicitor General, 
  Stephen M. Shapior, Assistant to the Solicitor General, Deputy 
  Solicitor General, Washington, D.C., joint letter..............   210
Fried, Charles, Harvard Law School, Cambridge, Massachusetts, 
  letter.........................................................   212
Gansler, Douglas F., Attorney General of Maryland, Baltimore, 
  Maryland, letter...............................................   214
Goldsmith, Jack, L., Professor, Harvard Law School, Cambridge 
  Massachusetts, letter..........................................   216
Gregorie, Christine O., Governor, State of Washington, Olympia, 
  Washington, letter.............................................   218
Harvard Law School Graduates, Cambridge, Massachusetts, letter...   219
Hawkins, Kristan, Executive Director, Students for Life of 
  America; Tony Perkins, President, Family Research Council; 
  David N. O'Steen, Ph.D., Executive Director, National Right to 
  Life Committee; Charmaine Yoest, President, Americans United 
  for Life; Austin Ruse, President, Catholic Family and Human 
  Rights Institute; Marjorie Dannenfelser, President, Susan B. 
  Anthony List; Kris Mineau, President, Massachusetts Family 
  Institute; Phyllis Schlafly, President, Eagle Forum; J.C. 
  Willke, MD, President, International Right to Life Federation; 
  Thomas Brejcha, President & Chief Counsel, Thomas More Society; 
  Peter Breen, Executive Director & Legal Counsel, Thomas More 
  Society; Joseph A. Brinck, President, Sanctity of Life 
  Foundation; Jennifer Giroux, Executive Director, Women 
  Influencing the Nation; Samuel B. Casey, General Counsel, Law 
  of Life Project, Advocates International, Gary Bauer, President 
  of American Values; Brian Burch, President of CatholicVote.org; 
  David Bereit, National Director, 40 Days for Life; Jull Stanch, 
  RN, WorldNetDaily Columnist; Peggy Hartshorn, President, 
  Heartbeat International; Michaels Geer, President, Pennsylvania 
  Family Institute; Bryan Kemper, President, Stand true-Christ 
  Centered Pro-life; John T. Bruchalski, MD, FACOG, Divine Mercy 
  Care; James Nolan, President, Crossroads Pro-life; Marie Bowen, 
  Executive Director, Presbyterians Pro-Life; Jennifer Kimball, 
  Be.L., Executive Director, Culture of Life Foundation; Jo 
  Tolek, Executive Director, Human Life Alliance; Dean Nelson, 
  Executive Director, Network of Politically Active Christians; 
  Chris Slattery, President, Expectant Mother Care-EMC FrontLing 
  Pregnancy Centers, New York City; Rev. Louis Sheldon, Chairman, 
  Traditional Values Coalition; Andrea Lafferty, Executive 
  Director, Traditional Values Coalition, joint letter...........   221
Horowitz, Lisa, President, National Association of Women Lawyers, 
  Washington, D.C., letter.......................................   226
Joffe, Robert D., Cravath, Swaine & Moore LLP, New York, New 
  York, letter...................................................   228
Katz, Robert J., Senior Director, Goldman Sachs Group, Inc., New 
  York, New York, letter.........................................   232
Keisler, Peter D., Sidley Austin LLP, Washington, D.C., letter...   234
Kindler, Jeffrey B., Chairman of the Board, Chief Executive 
  Oficer, Pfizer, New York, New York, letter.....................   235
Kramer, Larry D., Dean and Richard E. Lang Professor of Law, 
  Stanford Law School; T. Alexander Aleinikoff, Dean, Georgetown 
  University Law Center; Evan H. Caminker, Dean, University of 
  Michigan Law School; Michael A. Fitts, Dean, University of 
  Pennsylvania Law School; Harold H. Koh, Dean and Gerard C. and 
  Bernice Latrobe Smith Professor of International Law, Yale Law 
  School; David F. Levi, Dean, Duke University School of Law; 
  Saul Levmore, Dean and William B. Graham Professor of Law, 
  University of Chicago Law School; Paul G. Mahoney, Dean, 
  University of Virginia School of Law; Richard L. Revesz, Dean 
  and Lawrence King Professor of Law, New York University School 
  of Law; David M. Schizer, Dean, Columbia University School of 
  Law; and David van Zandt, Dean, Northwestern University School 
  of Law, joint letter...........................................   237
Leadership Conference on Civil Rights, Wade Henderson, President 
  & CEO, and Nancy Zirkin, Executive Vice President, Washington, 
  DC:
    February 9, 2009.............................................   239
    February 24, 2009............................................   241
Leary, Mary Lou, National Center for Victims of Crime, 
  Washington, D.C., letter.......................................   243
Lee, Bill Lann, Attorneys at Law, Lewis, Feinberg, Lee, Renaker & 
  Jackson, P.C., Oakland, California, letter.....................   247
Lee, William F., Co-Managing Partner, WilmerHale, Boston, 
  Massachusetts, letter..........................................   249
Lichtman, Judith I., Senior Advisor, National Partnership for 
  Women & Families, Washington, D.C., letter.....................   250
Lipton, Martin, Wachtell, Lipton, Rosen & Katz, New York, New 
  York, letter...................................................   251
Major Cities Chiefs Association, Gil Kerlikowske, President, 
  Columbia, Maryland, letter.....................................   252
Manning, John F., Bruce Bromley Professor of Law, Harvard Law 
  School, Cambridge, Massachusetts, letter.......................   253
Marcus, Daniel, Associate and Acting Attorney General, Fisher, 
  Raymond C., Associate Attorney General, Dwyer, John C., Acting 
  Associate Attorney General, Washington, D.C., joint letter.....   255
McCartney, Kevin R., Senior Vice President Government Relations, 
  Boys & Girls Clubs of America, Washington, D.C., letter........   256
Miller, Judith A., Senior Vice President and General Counsel, 
  Bechtel Group, Inc., letter....................................   257
Moore, Margaret M., Director, Wifle, Arlington, Virginia, letter.   258
NAACP Legal Defense and Education Fund, Inc., Payton, John, 
  President and Director-Counsel, Washington, D.C., letter.......   259
National Association of Police Organizations, William J. Johnson, 
  Executive Director, Alexandria, Virginia, letter...............   262
National Crime Prevention Council, Alfonso E. Lenhardt, President 
  and CEO, Arlington, Virginia...................................   263
National Fraternal Order of Police, Chuck Canterbury, National 
  President, Washington, D.C., letter............................   265
Native American Rights Fund, John E. Echohawk, Executive 
  Director, Washington, D.C., letter.............................   266
Orazem, Geoff, Hagan Scotten and Erik Swabb, Cambridge, 
  Massachusetts, letter..........................................   268
Police Executive Research Forum, Chuck Wexler, Executive 
  Director, Washington, D.C., letter.............................   271
Ramo, Roberta Cooper, Modrall Sperling Lawyers, Albuquerque, New 
  Mexico, letter.................................................   272
Reed, Hon. Jack, a U.S. Senator from the State of Rhode Island...   274
Reno, Janet, former Attorney General; Patricia Wald, Assistant 
  Attorney General, Legislative Affairs; Loretta C. Argrett, 
  Assistant Attorney General, Tax Division; Lois Schiffer, 
  Assistant Attorney General, Environment and Natural Resources 
  Division; Jamie S. Gorelick, Deputy Attorney General; Eleanor 
  D. Acheson, Assistant Attorney General, Office of Policy 
  Development; and Jo Ann Harris, Assistant Attorney General, 
  Criminal Division, joint letter................................   275
Robinson, Ron, President, Young America's Foundation; Flagg 
  Youngblood, Director of Military Outreach, Young America's 
  Foundation; Colin A. Hanna, President, Let Freedom Ring; Tom 
  McClusky, Vice President of Government Affairs, Family Research 
  Council; Ron Pearson, President, Council for America; Frank 
  Gaffney, President and CEO, Center for Security Policy; William 
  J. Murray, Chairman, Religious Freedom Coalition; Tom Fitton, 
  President, Judicial Watch; Cliff Kincaid, President, America's 
  Survival, Inc.; Alex-St.James, Chairman, African American 
  Republican Leadership Council; C. Preston Noell III, President, 
  Tradition, Family, Property, Inc.; Elaine Donnelly, President, 
  Center for Military Readiness; Keith Wiebc, President, American 
  Association of Christian Schools; Angelise Anderson, Executive 
  Administrator, Coalition on Urban Renewal and Education; Gary 
  Marx, Executive Director, Judicial Confirmation Network; Kay 
  Daly, President, Coalition for a Fair Judiciary; Richard W.C. 
  Falknor, Chairman, Maryland Center-Right Coalition; Jim Martin, 
  President; 60 Plus Association; Phyllis Schlafly, President and 
  Founder, Eagle Forum; Larry Cirignana; Jeff Gayner, Chairman, 
  Americans for Sovereignty; Clare M. Lopez, Vice President, 
  Intelligence Summit; Dee Hodges, Chairman, Maryland Taxpayers 
  Association; and Mark Williamson, Founder and President, 
  Federal Intercessors, joint letter.............................   277
Scharf, Stephanie A., President, National Association of Women 
  Lawyers, Chicago, Illinois, letter.............................   279
Sharpless, Andrew, Chief Executive Officer, Oceana, Washington, 
  D.C., Daniel B. Magraw, Jr., President, Center for 
  International Environmental Law, Washington, D.C., Trip Van 
  Noppen, President, Earthjustice, Oakland, California, Greer S. 
  Goldman, Assistant General Counsel, National Audubon Society, 
  Washington, D.C., joint letter.................................   281
Sloan, Clifford M., Partner, Skadden, Arps, Slate, Meagher & 
  Flom, Washington, D.C., letter.................................   283
Strauss, David A., Gerald Ratner Distinguished Service Professor 
  of Law, University of Chicago, Chicago, Illinois, letter.......   285
Tribe, Laurence H., Carl M. Loeb University Professor, Harvard 
  University, Cambridge, Massachusetts, letter...................   286
Washington Times, February 5, 2009, letter to editor.............   289
Wildmon, Donald E., Founder and Chairman, American Family 
  Association; Gary L. Bauer, President, American Values; Tom 
  Minnery, Senior Vice President, Government and Public Policy 
  Focus on the Family; Kelly Shackelford, Esq., President, Free 
  Market Foundation; Carl Herbster, President, AdvanceUSA; Micah 
  Clark, Executive Director, American Family Association of 
  Indiana; Phil Jaurequi, Esq., President, Judicial Action Group, 
  Inc.; Diane Gramley, President, American Family Association of 
  Pennsylvania; David Crowe, Restore America; Dale Burroughs, 
  Founder and President, Biblical Heritage Institute; John 
  Stemberger, Esq., President and Chief Counsel, Florida Family 
  Action; Maurine Proctor, President, Family Leader Network; Tom 
  Shields, Chairman, Coalition for Marriage and Family; David E. 
  Smith, Executive Director, Illinois Family Institute; Jeremiah 
  G. Dys, Esq., President and General Counsel, The Family Policy 
  Council of West Virginia; Ron Shuping, Executive VP of 
  Programming, The Inspiration Networks; Colin A. Hanna, 
  President, Let Freedom Ring; Jim Garlow, Executive Director, 
  California Pastors Rapid Response Team, joint letter...........   290
Women's Bar Association of the District of Columbia, Jennifer 
  Maree, President, Washington, D.C., letter.....................   292
Wright, Wendy, President, Concerned Women for America, 
  Washington, D.C. letter........................................   294

 
                         EXECUTIVE NOMINATIONS

                              ----------                              


                       TUESDAY, FEBRUARY 10, 2009

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:03 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Benjamin L. 
Cardin, presiding.
    Present: Senators Cardin, Feinstein, Feingold, Whitehouse, 
Wyden, Klobuchar, Kaufman, Specter, Hatch, Kyl, Graham, and 
Coburn.

 OPENING STATEMENT OF HON. BENJAMIN L. CARDIN, A U.S. SENATOR 
                   FROM THE STATE OF MARYLAND

    Senator Cardin. The Committee will come to order. First, 
let me thank Chairman Leahy for allowing me to chair today's 
hearing.
    Today we consider two important nominations for leadership 
positions in the Department of Justice. These are the 
nominations of Thomas Perrelli to be Associate Attorney General 
of the United States and Elena Kagan to be Solicitor General of 
the United States.
    I agree with Chairman Leahy that this Committee should move 
quickly to continue to restore the morale and integrity of the 
Department. I am pleased that this Committee recently reported 
out Attorney General Eric Holder to be Attorney General of the 
United States with a strong, bipartisan vote of 17 to 2, and 
that the full Senate overwhelmingly confirmed his appointment 
shortly thereafter.
    The Associate Attorney General is the No. 3 position at the 
Department of Justice. This official oversees a wide range of 
offices at the Justice Department, including the Civil Rights, 
Civil, Antitrust, Environment, and Tax Divisions, as well as 
the Office of Justice Programs.
    Thomas Perrelli comes to this Committee with an impressive 
range of experience in both the private and public sectors. He 
served as counsel to Attorney General Janet Reno from 1997 to 
1999. For the final 2 years of the Clinton Administration, he 
served as Deputy Assistant Attorney General, where he 
supervised the Federal Programs Branch of the Civil Division, 
representing nearly every Federal agency in complex civil 
litigation. In that role, Mr. Perrelli supervised a staff of 
100 attorneys responsible for defending the constitutionality 
of Federal statutes, defending Federal agency actions and 
regulations, representing both the diplomatic and national 
security interests of the United States in courts of law, and 
conducting a wide range of other litigation. He also supervised 
the Department's Tobacco Litigation Team's lawsuit against 
major tobacco companies.
    In the private sector, Mr. Perrelli worked for many years 
at the Washington law firm of Jenner & Block, handling a 
caseload including constitutional, intellectual property, and 
appellate cases, as well as a wide range of complex civil 
litigation matters.
    Most recently, he served on President Obama's Justice 
Department Transition Team. He is a graduate of Brown 
University and Harvard Law School.
    I also want to note for the record that Mr. Perrelli has 
received the endorsement of several law enforcement 
organizations, such as the Federal Law Enforcement Officers 
Association and the National Fraternal Order of Police, as well 
as the National Center for Missing and Exploited Children. 
These letters will be made part of our record.
    Elena Kagan also comes to this Committee with a wide range 
of experience, having served as the dean of a law school, a law 
professor, a senior official at the White House, a lawyer in 
private practice, and a legal clerk for a Justice of the 
Supreme Court.
    A graduate of Princeton University and Harvard Law School, 
Ms. Kagan clerked for Justice Thurgood Marshall on the Supreme 
Court and then worked as an associate at the Washington law 
firm of Williams & Connolly. While teaching law school at the 
University of Chicago, she took on another assignment as 
special counsel to Senator Joe Biden, a distinguished former 
Chairman of this Committee. Ms. Kagan assisted in the 
confirmation hearings of Supreme Court Justice Ruth Bader 
Ginsburg.
    In 1995, Ms. Kagan served as President Clinton's Associate 
White House Counsel, Deputy Assistant to the President for 
Domestic Policy, and Deputy Director of the Domestic Policy 
Council. In the White House Counsel's Office, she acted as a 
lawyer for the White House policy councils and legislative 
offices, analyzing and drafting statutory language and 
executive actions, and offering policy advice. In the Domestic 
Policy Council office, she played a role in the executive 
branch's formulation, advocacy, and implementation of laws and 
policies in a wide variety of issues.
    In 1999, Ms. Kagan left Government and began serving as a 
professor at Harvard Law School, teaching administrative law, 
constitutional law, civil procedure, and a seminar on legal 
issues and the Presidency. In 2003, she was appointed to serve 
as Dean of the Harvard Law School, becoming the first woman 
dean in the school's history. In her 5 years at Harvard Law 
School, Dean Kagan has overseen both the academic and non-
academic aspects of the law school. I will enter into the 
record a letter from the deans of 11 major law schools in 
support of her nomination.
    The Solicitor General of the United States holds a unique 
position in our Government. It is one of the few Government 
positions in which the occupant must be ``learned in the law,'' 
pursuant to a statute enacted by Congress. The Solicitor 
General is charged with conducting all litigation on behalf of 
the United States in the Supreme Court and is often referred to 
as the ``tenth Justice.'' Indeed, the Supreme Court expects the 
Solicitor General to provide the Court with candid advice 
during oral argument and the filing of briefs on behalf of the 
United States. The office participates in about two-thirds of 
all the cases that the Court decides on the merits each year.
    So it is indeed high praise for Dean Kagan that former 
Solicitors General Walter Dellinger and Ted Olson joined with 
six other Solicitors General of both parties in endorsing her 
nomination. I will make that letter also part of the record. It 
is very complimentary of our nominee.
    At the same time, we expect the Solicitor General to 
exercise independent judgment from the Department of Justice, 
the Attorney General, and even the President of the United 
States. The office is charged with vigorously defending 
statutes duly enacted by Congress against constitutional 
challenges. The office also supervises all lower court 
appellate litigation and decides whether to appeal decision 
that are adverse to the Government and what position should be 
taken on the merits of the case.
    So let me thank the two nominees for being willing to 
continue to serve their country. I also want to thank their 
families, and we will have an opportunity for them to introduce 
their families as the confirmation hearing continues. And at 
this time, let me recognize the Republican leader on our 
Committee, Senator Specter.
    Senator Specter. Thank you, Mr. Chairman. At the outset, 
may I say that your work on the Committee has been outstanding. 
You have been here a little more than 2 years, you come as an 
experienced lawyer, and now you are already the Chairman of the 
Committee--pardon me, Acting Chairman.
    [Laughter.]
    Senator Cardin. It is a great country.
    Senator Specter. Acting Chairman of the Committee, which is 
quite a testimonial to you. But we have worked together closely 
in the 2 years, and it is nice to work with a lawyer's lawyer, 
which you are, Senator Cardin.
    Senator Cardin. Thank you.
    Senator Specter. I join you in welcoming the two nominees. 
Both present outstanding academic credentials, and in the 
situation with Dean Kagan, she is now the Dean of the Harvard 
Law School to supplement her outstanding academic work and 
professional work.
    The Senate has a broad responsibility under the 
Constitution on confirmations to make inquiries beyond even 
extraordinary resumes like those presented here today. In 
evaluating President Obama's nominees, we see perhaps what is a 
cautionary word during the campaign when Candidate Obama had 
this to say about judges. Now, Solicitor General is a little 
different--substantially different, really, from a judge, as is 
the position of Associate Attorney General. But in trying to 
evaluate approaches, it is, I think, fair to look at 
philosophy.
    This is what Candidate Obama had to say: ``We need somebody 
who has got the heart, the empathy to recognize what it is like 
to be a young teen-age mom, the empathy to us understand what 
it is like to be poor or African American or gay or disabled or 
old. That is the criteria by which I am going to be selecting 
my judges.''
    Well, I agree with the need for consideration on the 
disadvantage, no doubt about it, on the categories identified 
by Candidate Obama. But we also have to make an inquiry as to 
the commitment to the law and that nominees for key positions 
in the Department of Justice like judges have followed the law, 
that if there are to be changes made, it is well established as 
a matter of philosophical doctrine that it is up to the 
legislature to do that.
    When Dean Kagan came to see me, I asked her about a number 
of her writings, and we will be going into those today. And she 
made a sharp distinction, which I understand, as to what a 
nominee may think about a given situation contrasted with the 
advocacy role, which she sharply distinguishes, and represents 
that she can be an advocate as Solicitor General on issues that 
she does not agree with philosophically.
    Well, I understand that distinction, and the issue that 
inevitably arises is how effective is somebody who is arguing 
for something which they deeply disagree with, and Dean Kagan 
is a person who has very deep views. I cite only one in this 
introduction, and I talked to her about it. She was discussing 
the Solomon amendment on the issue of ``Don't ask, don't 
tell,'' and I can understand the challenge to the underlying 
basis of the Solomon amendment. But this is what she said: ``As 
dean, we instated military recruiters to the Harvard Law School 
because to do otherwise would have been to forfeit a great deal 
of Federal funding.'' And she noted that the ``action caused 
her feet distress,'' and that she finds the military's policies 
to be ``a profound wrong, a moral injustice of the first 
order.''
    Well, one consideration would be if you think of something 
as a moral injustice of the first order, how can you in good 
conscious be an effective advocate. And this bears on the 
ability to apply the law.
    Now, Dean Kagan countered with a statement, well, the 
Solicitor General has the obligation to uphold the 
constitutionality of the law. There is a strong presumption of 
constitutionality. And I commented to her about a case when I 
was district attorney where the Pennsylvania statute treating 
women differently than men--they were given indeterminant 
sentences so that if they were convicted of larceny, for 
example, they went to a women's prison, and having served the 
maximum prescribed by statute, 5 years, they could be kept 
longer. And when I was asked to defend the statute, I refused. 
And they brought in the State Attorney General who defended the 
statute, and the statute was stricken.
    But there is a real issue here as to the range of advocacy 
or perhaps the intensity of advocacy, so I make those very 
brief introductory comments, Mr. Chairman, to sort of set the 
parameters, and we have also the Associate Attorney General, 
and we have our responsibility to uphold, to make these 
inquiries under the Constitution to decide whether we should 
consent and approve the nominations.
    Thank you, Mr. Chairman.
    Senator Cardin. Thank you, Senator Specter.
    At this time I will recognize Senator Jack Reed from Rhode 
Island for the purposes of introductions. Senator Reed, it is a 
pleasure to have you before our Committee.

 STATEMENT OF HON. JACK REED, A UNITED STATES SENATOR FROM THE 
                     STATE OF RHODE ISLAND

    Senator Reed. Thank you, Mr. Chairman, and thank you, 
Ranking Member Specter. It is an honor to appear here this 
morning to introduce Dean Elena Kagan.
    Dean Kagan and I both attended Harvard Law School, but it 
is obvious she is much younger and a much, much better lawyer. 
But I have been following her career with great pride since her 
days not only at Harvard, but as she clerked for Judge Abner 
Mikva on the U.S. Court of Appeals for the D.C. Circuit and for 
Justice Thurgood Marshall on the United States Supreme Court--
two giants of American jurisprudence.
    As the Chairman indicated, she went on to teach law at the 
University of Chicago Law School. She served in the Clinton 
administration, and then she returned to Harvard Law School in 
1999.
    During her tenure as Dean of the Harvard Law School, she 
has drawn acclaim as a pragmatic problem solver who could 
bridge ideological divides among the faculty and the student 
body. She hired new professors with diverse areas of expertise 
and views, and she ushered in a number of far-ranging student-
oriented reforms to the law school. She has also won praise 
from current and former students who have served our country in 
uniform for creating an environment that is highly supportive 
of students who have served in the Armed Forces of the United 
States. I know that because I have met with many of these young 
men and women who served and now are students at or recent 
graduates of the Harvard Law School, and they are uniformly 
praiseful of Dean Kagan.
    She is eminently qualified to become Solicitor General of 
the United States, and it is not just her impressive resume and 
brilliant mind. It is her wisdom and her temperament and her 
commitment to the Constitution.
    In October 2007, Dean Kagan gave a speech at my alma mater, 
West Point. She was invited there to speak to the cadets, and 
she told the cadets that our Nation is most extraordinary 
because, as she said, we ``live in a Government of laws, not of 
men and women.''
    As a touchstone for this speech, she used a place on the 
West Point campus called Constitution Corner. This is the place 
at which the cadets are reminded of their obligations as 
soldiers. One of the plaques at the site is etched with the 
phrase, a very simple phrase, ``Loyalty to the Constitution.'' 
That was a watch word for all of us. She understands that it is 
our duty to the Constitution which is preeminent.
    She spoke that day about how our law and our dedication to 
law, the rule of law, is especially during trying times. She 
used the examples of President Nixon's Attorney General, 
Archibald Cox, and President Bush's Attorney General, John 
Ashcroft, as examples of men who sought to uphold the rule of 
law in very trying circumstances and put doing the right thing 
above all else.
    If confirmed, I believe General Kagan will be an 
outstanding Solicitor General. She brings exceptional 
qualifications to the job and will be a tough, fair, and 
powerful advocate for the Constitution and the people of the 
United States, and I comment her to this Committee, and I thank 
you all.
    Senator Cardin. Thank you very much, Senator Reed. I 
appreciate your being here.
    At this time I would ask our witnesses to come forward, if 
they would, please. If you would stand in order to be sworn in. 
Do you affirm that the testimony you are about to give before 
the Committee will be the truth, the whole truth, and nothing 
but the truth, so help you God?
    Mr. Perrelli. I do.
    Ms. Kagan. I do.
    Senator Cardin. Thank you. Well, perhaps the best way to 
start is first to thank you all for being here, and I 
appreciate your families being here.
    [Laughter.]
    Senator Cardin. Perhaps at this time it might be 
appropriate if you would introduce the members of your family. 
We have already heard from one.
    [Laughter.]
    Senator Cardin. But if we could hear from the rest, it 
would be--so, Mr. Perrelli, if you would go first and perhaps 
introduce the members of your family who are here.
    Mr. Perrelli. Thank you, Senator. I think you have met my 
son, James, who I think will be excused momentarily, and this 
is my wife, Kristine. I have got my mother, Nancy, and my Aunt 
Lucy, who just celebrated her 90th birthday, from Barre, 
Vermont. I am also joined by my sister, Caryn; my brother-in-
law, Scott. I have also got my brother-in-law Kevin, who made 
the trip from Madison, Wisconsin. I have got my extended 
family: Lieutenant Matthew Trivett of the Montgomery County 
Fire Marshal Bomb Squad, and Sergeant David Trivett of the 
Baltimore County Homicide Unit.
    Thank you.
    Senator Cardin. Thank you.
    Dean Kagan.
    Ms. Kagan. Well, Tom and I laughed because he brought all 
his family, and I left most of mine at home. But I have two 
wonderful brothers who are here, city public school teachers. I 
excused them from coming down. But my older brother's daughter, 
my niece Rachel, is here. She is graduating from college this 
year. She is looking forward to law school. I think she is 
going to be a splendid lawyer. And then I brought a little bit 
of family from Cambridge, you might say, some of my great 
friends from Harvard Law School: Charles Fried, a former 
Solicitor General himself, who is here; Jack Goldsmith, Dan 
Meltzer, John Manning, Martha Minow, Carol Steiker--all great 
friends of mine, and I very much appreciate their coming down 
to support me.
    Senator Cardin. Well, we welcome your families, and we know 
the sacrifices that they have to make in regards to your public 
service, and we thank them for that.
    I want to acknowledge for the record that Senator Webb and 
Senator Warner wanted to be here to introduce Mr. Perrelli, but 
they were called upon on other Senate business, and we will 
allow their statements to be made part of the record.
    Mr. Perrelli, we would be glad to hear from you.

   STATEMENT OF THOMAS J. PERRELLI, TO BE ASSOCIATE ATTORNEY 
              GENERAL, U.S. DEPARTMENT OF JUSTICE

    Mr. Perrelli. Mr. Chairman, Senator Specter, and members of 
the Committee, thank you for giving me the opportunity to 
appear before you as the nominee for the position of the 
Associate Attorney General. I am grateful to the President and 
the Attorney General for giving me the opportunity to be 
considered for this post and to serve again in the Department 
of Justice, an organization that I revere.
    I would like to thank the members of the Committee and 
their staffs who have met with me to start what I hope will be 
a dialog about the issues facing the country and the Department 
of Justice. There is deep knowledge in this Committee about the 
many challenges ahead, and I hope that I have the opportunity 
to work with you to overcome them.
    I would like to thank Senators Webb and Warner for the 
statements of support that have been submitted for the record.
    I would not be here today without the love of my family and 
a great deal of good fortune. I want to thank first the love of 
my life, my wife, Kristine, for all of her love, help, and 
support--especially now with a new baby arriving any day. She 
is here--and you have already my son, James.
    I also want to thank my mother, Nancy Perrelli, who has 
been an inspiration to me for many years, not the least of 
which is all that I learned by watching her, as a single 
parent, work full days, take care of me and my sister, and go 
to law school at night.
    Missing from the large contingent behind me is my father, 
also Tom Perrelli. He passed away in 2002 after a long struggle 
with cancer. But I think of him today because my father was one 
of the career professionals who are at the heart of the 
Department of Justice. He made his career there and, indeed, he 
refused to retire until only a day or two before he died 
because it was part of what defined him.
    My own reverence for the Department began through him. As a 
college student,I worked summers at the Immigration and 
Naturalization Service, mainly on IT projects, but I had the 
opportunity to experience lots of different aspects of the 
Department, including getting to visit the men and women on the 
border in San Diego to learn the extraordinary challenges that 
they face and the remarkable job that they do.
    In my time as a summer intern, I had the unusual 
opportunity to talk with then-Attorney General Meese, who was 
kind to stop several times to talk to me when he was exiting 
the building and I was waiting at the bus stop for a shuttle.
    When I completed law school, I clerked for the Honorable 
Royce Lamberth of the U.S. District Court for the District of 
Columbia--himself a lifelong public servant and veteran of the 
Judge Advocate General Corps, and the U.S. Attorney's Office in 
DC. In that job, I saw the best of Government lawyers, 
prosecuting cases from Iran-contra to drug gangs on the streets 
of DC, and defending the United States in cases from the 
savings and loan crisis to environmental regulation of nuclear 
power plants.
    All of those experiences left me with a deep appreciation 
for the Department--its mission and the extraordinary people 
who carry it out. That appreciation increased exponentially 
later in my career when I first served first as Counsel to the 
Attorney General and later as Deputy Assistant Attorney General 
in the Civil Division. The men and women who serve in the 
Department from Administration to Administration, from law 
enforcement agents of the FBI, DEA, and ATF who put their lives 
on the line every day, to lawyers and staff whose sole goal is 
fair, evenhanded application of the law, and representation of 
the interests of the United States, are remarkable and deserve 
more praise than they ever receive.
    I am honored to have been nominated to serve as Associate 
Attorney General and to have the opportunity to work again 
among the career professionals at the Department. But I have no 
illusions about the size of the task. The challenges that the 
Department faces today are enormous, and they derive from its 
mission, which has expanded greatly since September 11th, from 
the constraints on its resources, which have limited its 
ability, and from management and other problems that are 
perhaps self-inflicted.
    My vision is a Justice Department of which all Americans 
can be proud--a Department that keeps America safe from threats 
foreign and domestic, a Department that at every level makes 
the evenhanded application of the law and the representation of 
the interests of the United States without regard to party or 
personal views a priority; a Department that works in 
partnership with State, local, and tribal authorities to most 
efficiently protect the public and make communities safe; a 
Department that is transparent and gives to the American public 
confidence that the rule of law and the Constitution are 
paramount; and a Department that works with this Committee and 
others in Government to collaborate on the many challenges 
ahead.
    I look forward to answering your questions. Thank you, Mr. 
Chairman.
    [The prepared statement of Mr. Perrelli appears as a 
submission for the record.]
    [The Questionnaire of Mr. Perrelli follows.]


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    Senator Cardin. Thank you very much.
    Dean Kagan.

    STATEMENT OF ELENA KAGAN, TO BE SOLICITOR GENERAL, U.S. 
                     DEPARTMENT OF JUSTICE

    Ms. Kagan. Thank you, Mr. Chairman.
    Mr. Chairman and members of the Committee, I am deeply 
honored to be sitting here today. And, of course, I am 
grateful. I am grateful to the President for nominating me to 
this important position. I am grateful to the Attorney General 
for supporting me and to the Committee for holding this hearing 
and considering my nomination. And I am particularly grateful 
to the many members on both sides of the aisle who met with me 
prior to this hearing. I enjoyed those talks, and I thank you 
for them.
    I want to say a couple of words about two other people who 
are here today with me. I wish my parents could have lived to 
see this day. My father was a lawyer himself and took great 
pride in my professional accomplishments. He died about 15 
years ago now, but he lived to see me clerk for the Supreme 
Court and become a professor at the University of Chicago, and 
he thought all of that was pretty great. My mother died just 
last summer, so her absence is particularly difficult for me. 
She grew up at a time when few women pursued high-powered 
professional careers, and maybe for that reason, she relished 
my doing so. She would have loved this day. Both my parents 
wanted me to succeed in my chosen profession. But more than 
that, both drilled into me the importance of service and 
character and integrity. And I pray every day that I live up to 
those standards.
    I hope one other person is looking down on this hearing 
room today. As you know, I had the privilege of clerking for 
Justice Thurgood Marshall--the greatest lawyer, I think, of the 
20th century. Justice Marshall had some awfully good jobs in 
his life. But he always said that the best, bar none, was being 
Solicitor General. I am sure that there were many reasons for 
that, but I have been thinking recently about one in 
particular. I think he must have been so deeply moved to walk 
into the most important court in this country when it was 
deciding its most important cases and to state his name and to 
say, ``I represent the United States of America.'' And I think 
he would have liked that a former clerk of his would be 
nominated for the same job and, if confirmed, would be able to 
say those same most thrilling and most humbling words for a 
lawyer.
    To have the opportunity to lead the Solicitor General's 
Office is the honor of a lifetime. As you know, this is an 
office with a long and rich tradition not only of extraordinary 
legal skill but also of extraordinary professionalism and 
integrity. That is due in large measure to the people who have 
led it, and I especially want to acknowledge Generals Olson and 
Clement and Garre for their absolutely superb service during 
these last 8 years. In a time of some difficulty for the 
Justice Department, they have maintained the highest standards 
of the office, and they have served their client, the United 
States of America, exceedingly well. And, of course, they have 
been joined in doing so by the career lawyers and the other 
public servants in the Solicitor General's Office. These men 
and women have been justly called the ``finest law firm in the 
country,'' and they represent the gold standard in Federal 
public service.
    The Solicitor General's Office is unusual in our Government 
in owing responsibilities to all three of the coordinate 
branches in our system of separated powers. Because of this 
striking feature of the office, the Solicitor General 
traditionally, and rightly, has been accorded a large measure 
of independence.
    Most obviously, of course, the Solicitor General reports to 
the Attorney General and, through him, to the President, and 
defends the regulations, policies, and practices of the 
executive branch when these are challenged. In this role, the 
Solicitor General is the principal advocate of the executive 
branch in the courts of the United States.
    At the same time, the Solicitor General has critical, no 
less critical responsibilities to Congress--most notably, the 
vigorous defense of the statutes of this country against 
constitutional attack. Traditionally, outside of a very narrow 
band of cases involving the separation of powers, the Solicitor 
General has defended any Federal statute in support of which 
any reasonable argument can be made. And I pledge to continue 
this strong presumption that the Solicitor General's Office 
will defend each and every statute enacted by this body.
    Finally, the Solicitor General's Office has unique 
obligations to the Supreme Court of the United States. It is 
frequently said that the Solicitor General serves as the 10th 
Justice. I believe Senator Cardin made reference to that 
phrase. Now, I suspect that the Justices think of the Solicitor 
General more as the 37th clerk. Regardless, the Solicitor 
General must honor the principle of stare decisis, must 
exercise care in invoking the Court's jurisdiction, and most 
important of all, must be scrupulously candid in every 
representation made to the Court. And in this sense, I 
completely agree with what Senator Specter just said: the most 
important of all the Solicitor General's responsibilities is to 
be true to the rule of law.
    Mr. Chairman and members of the Committee, it would be an 
honor to serve as Solicitor General, and I commit that if the 
Senate sees fit to confirm me, I will do everything possible to 
live up to the great traditions, expectations, and 
responsibilities of the Solicitor General's Office.
    Thank you very much.
    [The prepared statement of Ms. Kagan appears as a 
submission for the record.]
    [The Questionnaire of Ms. Kagan follows.]





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    Senator Cardin. Thank you. We thank both of you for your 
opening statements.
    We are going to have 7-minute rounds, and let me start, and 
I am going to try to stick to that time limit for myself.
    Mr. Perrelli, let me start, if I might, with the tradition 
of the Department of Justice over many, many years of being the 
premier agency for the people of this country in protecting the 
rule of law, representing the people of this Nation, and 
holding anyone who violates our laws accountable, even if it is 
the President of the United States.
    In the last few years, there have been serious problems of 
partisan politics played within the Department of Justice as it 
relates to the retirement and promotion of career attorneys, as 
it has been in selecting what type of cases to be pursued, 
overriding the advice of career attorneys in many cases for 
partisan reasons.
    I want to get your assessment, if confirmed to be the 
number three person in the Department of Justice, as to how you 
will approach the appointment, retention, recruitment of career 
attorneys, their assignments, and what impact partisan politics 
will play in regards to those decisions.
    Mr. Perrelli. Well, Senator, with respect, I think the 
answer to the last part of your question is none. You have 
identified an area where the Justice Department has come under 
criticism, including from its own Inspector General, over the 
last several years and concerns about partisanship in hiring. 
That is something that under the laws enacted by Congress is 
simply inappropriate, and I think Attorney General Mukasey and 
Deputy Attorney General Filip have taken important strides to 
ensuring that problems of the past are not current problems of 
the Justice Department. But I think it will be incumbent on the 
Attorney General and others, as they are nominated and 
confirmed, to take a serious look at the policies governing the 
Department, to take whatever additional steps are necessary to 
ensure that there is no partisanship in hiring or assignment of 
attorneys. And I would say that my experience in working with 
the career professionals at the Department is that they are an 
extraordinary group, and that management in the Department 
would be wise to listen to their recommendations, and I hope to 
have the opportunity to do so.
    Senator Cardin. That is the answer I expected to hear from 
you, but let me just caution you. You are responsible for the 
people that you supervise within the Department of Justice. So 
we expect that message to be very clear to all the people in 
the Department of Justice as to restoring the confidence that 
partisan politics will not play a role in the deployment of 
career personnel. And I am pleased to hear you say that, but I 
just want to make sure that becomes a priority and a message 
that is clearly understood at all levels within the Department 
of Justice.
    The second point I want to raise is the Civil Rights 
Division. We have been extremely concerned about what has 
happened in the Civil Rights Division. In the last 8 years, the 
number of significant cases brought has been diminished 
greatly. The resources made available to that office has been 
reduced. I want to know what priority you intend to place on 
the Civil Rights Division within the Department of Justice.
    Mr. Perrelli. Well, Senator, the Attorney General has 
already made clear that that would be a significant priority of 
his, and as the Associate with management responsibility over, 
among other things, the Civil Rights Division, it will be a 
significant priority of mine.
    I think you identified both the set of concerns about 
partisanship that have been the subject of a recent Inspector 
General report that was quite disturbing, as well as the 
reality that of all of the civil litigating components in the 
Department, the Civil Rights Division is the one that has 
actually declined in terms of its resources, even though the 
number of statutes that it enforced and the job that it has to 
do is, I suspect, greater not less than it was in 2001.
    So I think it is a very high priority to focus on the 
Division to make certain that it is engaged in its mission. It 
certainly will have in the coming years very, very significant 
responsibilities following the 2010 census, and the management 
of the Department has to give it a special focus to make sure 
that it is ready.
    Senator Cardin. Thank you.
    Dean Kagan, I very much support your statement of 
aggressively enforcing the laws of our country regardless of 
your personal views. That is your responsibility, if confirmed 
to be Solicitor General. I want to talk, though, about the 
potential conflict between the laws that Congress passes and 
the claim of the President to his inherent power. This has been 
an issue that has come up in regards to the FISA statute. It 
has come up in regards to detainee rights. It has come up in 
regards to the use of enhanced techniques for interrogation.
    I want to know how you will approach the issues when we are 
talking about fundamental rights and protection of the 
separation of branches of Government. Speaking as a Member of 
the U.S. Senate, I want to make sure the Solicitor General is 
going to be sensitive to the role that you can play in making 
sure that the appropriate protections are maintained within our 
Constitution.
    Ms. Kagan. Thank you, Senator Cardin. That is an extremely 
important question. Every Solicitor General nominee who has sat 
at this table for the past many years has always said that 
there are two very rare exceptions where a Solicitor General 
will not defend a statute of the United States. And one 
exceedingly rare exception is when there is simply no 
reasonable basis to do so; and second is where that statute 
infringes directly on the powers of the President.
    And I would say the same thing to you. I think that there 
is a category of cases in which statutory defense might be 
inappropriate because it violates separation of powers 
concerns. But I think that that is an exceedingly narrow 
category of cases, and here in thinking about executive power, 
I would go back to the Youngstown framework that I know so many 
of you, all of you are familiar with. Of course, that framework 
says that when Congress authorizes Presidential power, 
Presidential power is at its highest. When Congress is silent, 
we are in a kind of middle ground. And where Congress says no 
to Presidential power, denies Presidential power, Presidential 
power is at its lowest ebb.
    There are occasional times where Presidential power still 
exists even if Congress says otherwise. Think about if Congress 
were to deny any power of pardons on the President. That would 
be a time where you would say no, there is a constitutional 
commitment here. But that category of cases, Senator, I think 
is exceedingly narrow, and that is how I would approach the 
problem that you raise.
    Senator Cardin. I thank you for that response. I would also 
hope that there would be some transparency in making those 
judgments so that there is an opportunity for input and 
challenge if it is a fundamental issue.
    With that, let me recognize Senator Specter.
    Senator Specter. Thank you, Mr. Chairman.
    Mr. Perrelli, I sent you a letter on the issue of 
congressional oversight and told you I would be asking you 
about it at the hearing today. And my question to you is 
whether you agree with what the Congressional Research 
concluded was the scope of congressional oversight when they 
say, ``DOJ has been consistently obliged to submit to 
congressional oversight regardless of whether litigation is 
pending. Investigating committees were provided with documents 
respecting open or closed cases that included prosecutorial 
memoranda, FBI investigative reports *  *  * prepared during 
the pendency of cases.''
    Do you agree with the Congressional Research statement as 
to the congressional authority on oversight?
    Mr. Perrelli. Senator, that passage that you provided, I 
agree with respect to the description of the scope of the 
permissible oversight by Congress that reaches all aspects on 
which it could legislate. I think that passage does not discuss 
the countervailing interests of the executive branch in certain 
circumstances, and the process of accommodation that goes back 
and forth and has historically between the executive branch and 
the----
    Senator Specter. Well, would you supplement your answer by 
specifying what kind of extenuating circumstances you see to 
deviate from that standard?
    Mr. Perrelli. Well, I think that certainly you have the 
situation of executive privilege and----
    Senator Specter. I want you to supplement your answer in 
writing, because I have only got 7 minutes.
    Mr. Perrelli. I will do so.
    Senator Specter. But you said you would adopt those as a 
generalization, but there might be some extenuating 
circumstance which would limit it. Please provide that to me in 
writing.
    Mr. Perrelli. Thank you, Senator.
    Senator Specter. The Washington Post has an account today 
from the State Secrets Doctrine. The Obama administration 
invoked the State secrets privilege as its predecessor in 
Federal court in opposing the reinstatement of the lawsuit that 
alleges that Boeing flew people to countries where they were 
tortured as part of the CIA's extraordinarily rendition 
program. I know that in your background you dealt with the 
State Secrets Doctrine. Do you think that this is a wise use of 
the State Secrets Doctrine, as reported in the Post today?
    Mr. Perrelli. Senator, I think with respect to the question 
about any particular case, I think it would require me to have 
more knowledge about particular classified information that 
might be at issue. I will say----
    Senator Specter. Would you take a look at the case and the 
statute which Senator Kennedy and I have pending and give us 
your judgment on that?
    Mr. Perrelli. I will, Senator.
    Senator Specter. There have been a large number of cases by 
the Department of Justice in taking monetary fines in the face 
of gigantic malfeasance. The malfeasance in one case, a company 
that did about $80 billion a year, and they got a $1.7 billion 
fine. I would appreciate it if you would take a look at those 
cases with a view to jail sentences for white-collar crime as 
opposed to fines. Those cases look as if the fines are really 
license to violate the law as opposed to a criminal sanction 
which has some real teeth.
    One more question before moving over to Dean Kagan, and 
that is, you participated in the Schiavo case, and you said 
that the congressional action in giving jurisdiction to the 
Federal court--the matter had been in the State court, and you 
were an attorney in the case. But you said that when Congress 
legislated to give jurisdiction to the Federal court, the 
enactment of the Federal statute in this case ``is not an 
exercise of legislative power, but trial by legislature, 
something that exceeds Congress' Article I power.''
    I believe that the law is that Congress has the authority 
to establish the jurisdiction. Do you stand by the assertion 
which you made in that brief?
    Mr. Perrelli. Senator, with respect to that assertion, I 
think the argument was that Congress cannot through any vehicle 
overturn a prior final court judgment, which I think has--those 
arguments and those concerns were raised going back to the 
Founding Fathers. That was an issue that no court ever ruled 
on, so I do not think we know the outcome at this point.
    Senator Specter. Well, there is concurrent jurisdiction 
between the State courts and the Federal courts. Double 
jeopardy, a State prosecution does not bar the Federal 
Government from initiating a prosecution on the same facts. 
This is an exercise in congressional authority to establish 
jurisdiction. Why not?
    Mr. Perrelli. I think the argument that we made in that 
case was that what the impact--the effect of Congress' 
enactment was essentially to attempt to relitigate issues that 
had been in State court.
    Senator Specter. Well, that may be the impact, but would 
you supplement your answer with why you think Congress does not 
have the authority to determine Federal jurisdiction?
    Mr. Perrelli. I will do that, Senator.
    Senator Specter. Dean Kagan, coming to the citation that I 
had mentioned earlier about how strongly you felt on the 
Solomon case, you wrote a memo for Justice Marshall in Bowen v. 
Kendrick, which involved the Adolescent Family Life Act which 
authorized Federal funds for religious organizations designed 
to discourage teen pregnancy and provide care to pregnant 
teens. The Supreme Court upheld the statute, and your memo 
said, ``It would be difficult for any religious organization to 
participate in such projects without injecting some kind of 
religious teaching.''
    Now, I asked you about the Solomon military issue where you 
had very, very strong moral objections, but you assert that you 
can function in an advocacy role notwithstanding your own 
personal views.
    How would you distinguish your confidence that you can do 
that in light of what you say here? And I understand why you 
say it, that religious organizations might be inclined to 
project some of their religious doctrine. But isn't that an 
inevitable consequence even for a skilled advocate who feels 
very strongly about a matter with respect to the capability to 
clearly do the right job in advocacy?
    Ms. Kagan. Senator, thank you for raising that memo. I 
first looked at that memo, thought about that memo, for the 
first time in 20 years, I suppose, just a couple of days ago 
when it was included on a blog post. And I looked at it and I 
thought, ``That is the dumbest thing I have ever heard.''
    [Laughter.]
    Ms. Kagan. So I looked at it and I said----
    Senator Specter. You do not have to go any further.
    [Laughter.]
    Senator Specter. Are you telling us you will not make that 
same mistake again?
    Ms. Kagan. You should never make the same mistake twice.
    Senator Specter. I wish I could follow that advice.
    [Laughter.]
    Senator Specter. One final question, Mr. Chairman.
    In a whole series of memos which you sent to Justice 
Marshall--and let me join you in extolling the virtues of 
Justice Marshall. There was a case called Bowles v. Fultz, and 
this followed a pattern that you had in five other memos where 
you express concern over what a majority of the Court might do 
as a reason for denying cert. And this involved an admission, 
and your memo said, ``I think the admission of this statement 
is outrageous.'' And then you expressed ``worry that the Court 
might reach the opposite result so that all ambiguous 
statements in the future will be construed in favor of the 
police.'' You expressed similar sentiment in five cases, which 
has all the appearance of an overarching philosophy here in 
deciding what cases to decide.
    Isn't it really the function to decide whether an injustice 
has been done when you say it is outrageous and not to look to 
a broader public policy concern as to what the Court might do 
as it affects other cases? When you have a defendant, his 
constitutional rights are involved, isn't that defendant 
entitled to have a decision on the merits of his case without 
having a decision as to whether the court takes jurisdiction 
decided on some broad philosophical grounds?
    Ms. Kagan. That is a very interesting question, Senator. 
You know, the Supreme Court's jurisdiction is, of course, 
discretionary, and the Supreme Court does not take every case 
in which an injustice has been done, even if an injustice had 
been done in that case, which I am not sure of. I do not have 
any recollection of that case and, again, have not thought 
about it for 20 years.
    But let me step back a little, if I may, Senator, and talk 
about my role as a clerk in Justice Marshall's chambers. We 
produced an enormous amount of paper for Justice Marshall. He 
was not in what is called the ``cert. pool,'' so we wrote memos 
on literally every single case where there was a petition, and 
that is hundreds and hundreds, probably thousands. And I am 
sure that there were hundreds of criminal cases of which, 
again, there was a blog post about five of them.
    I do not want to say that there was nothing of me in these 
memos. You first asked about Bowen v. Kendrick, and I think it 
is actually fair, when you look at the memo, to think that I 
was stating an opinion, however wrong it may have been. But I 
think in large measure, these memos were written in a context 
of you are an assistant for a Justice; you are trying to 
facilitate his work and to enable him to advance his goals and 
purposes as a Justice. And I think most of what we wrote was in 
that context. You know, I was a 27-year-old pipsqueak, and I 
was working for an 80-year-old giant in the law and a person 
who, let us be frank, had very strong jurisprudential and legal 
views. He knew what he thought about most issues. And for 
better or for worse, he was not really interested in engaging 
with his clerks on first principles. And he was asking us in 
the context of those cert. petitions to think and to channel 
him and to think about what cases he would want the Court to 
decide. And in that context, I think all of us were right to 
say here are the case which the Court is likely to do good 
things with from your perspective, and here are the ones where 
they are not. And I think that that is what those five that you 
mention were doing.
    Senator Specter. Thank you, Dean Kagan.
    Thank you, Mr. Chairman.
    Senator Cardin. Senator Feingold.
    Senator Feingold. Thank you, Mr. Chairman.
    Dean Kagan, congratulations on your nomination. I was 
personally delighted when you were appointed, having followed 
your career and having really enjoyed working with you on a 
number of issues. Although women have made great strides in the 
legal profession in recent decades, I think the nomination of 
the first woman Solicitor General is obviously a historic 
moment for our country and for the profession. It is no small 
thing, and I think President Obama should be congratulated for 
making this nomination as well.
    You touched on an issue in your opening statement that I 
would like to underline. It is important. I think it answers 
whatever concerns some in the center and the outside might have 
about your personal views or positions you have taken in your 
career. So I would like to ask you a question that I asked Ted 
Olson when he was nominated to be Solicitor General at the 
time. The Senate had just passed the McCain-Feingold bill, and 
there was great debate about the bill's constitutionality.
    Mr. Olson had written the following about 20 years earlier 
in the Harvard Journal of Law and Public Policy: ``The laws 
that we disagree with, the policies that we do not like, once 
they are implemented in the law must be enforced by the 
President and the Justice Department, notwithstanding our 
antipathy toward them. We in the Justice Department must also 
defend the constitutionality of congressional enactments, 
whether we like them or not, in almost all cases. We are the 
Government's lawyers, so even if we disagree with the policies 
of a law and even if we feel that it is of questionable 
constitutionality, we must enforce it and we must defend it.''
    Do you agree with what Ted Olson wrote?
    Ms. Kagan. Absolutely. There is simply no question that 
when one assumes the Solicitor General's role, one is assuming 
a set of responsibilities, a set of obligations of which the 
defense of statutes is one of the most critically important. 
And you defend those statutes whether you would have voted for 
those statutes or not. And I know that Ted Olson would not have 
voted for the McCain-Feingold bill, but he and Paul Clement did 
an extraordinary job of defending that piece of legislation, 
which I think you will agree. And that is what a Solicitor 
General does.
    Senator Feingold. I agree with that. He did do a superb 
job, and I could have sworn he almost was believing what he was 
saying.
    [Laughter.]
    Senator Feingold. That he actually was persuaded, because 
he did a superb job.
    Ms. Kagan. For that day he was persuaded, and that is all 
you need.
    Senator Feingold. Let me ask you now about the conflict of 
interest restrictions on those who serve in the Solicitor 
General's Office. It is somewhat ironic. As I mentioned, I was 
pleased with how the Justice Department, and Mr. Olson in 
particular, handled the responsibility to defend the McCain-
Feingold bill. But since Mr. Olson left the Department, he has 
been involved in two cases challenging the statute's 
constitutionality. I guess he determined that the Code of 
Professional Responsibility allows him to do that, but I am 
somewhat troubled by it. It seems like he has switched sides 
and is now representing the clients challenging the very 
statute that he defended ably as Solicitor General.
    President Obama has put in place very tough ethical 
restrictions concerning the post-Government service of people 
who work for his administration, going well beyond the 
revolving-door limitations that would otherwise apply.
    Will you please review the ethical rules and whatever 
guidance currently exists at the Solicitor General's Office and 
determine whether more restrictive rules ought to be put in 
place so that you and the lawyers who work for you do not end 
up on the other side of issues you directly participated in 
while in Government service?
    Ms. Kagan. I will, Senator Feingold. To be truthful, this 
is not a question that I have thought anything about or know 
anything about, and in my own case, when I leave the Solicitor 
General's Office, I am sure I will go back to academia where I 
will not be arguing against--where I will not be litigating 
against anything that I have defended. But it is an interesting 
and important question, and I will look into it.
    Senator Feingold. Thank you so much.
    Mr. Perrelli, I congratulate you as well. You have a truly 
stellar reputation, and I am pleased that you have agreed to 
return to the Department of Justice. I want to follow up on the 
state secrets doctrine issue that Senator Specter mentioned. I 
have been concerned that the state secrets privilege has been 
invoked by the previous administration to avoid accountability 
for potentially unlawful activities. And courts, of course, 
tend to be very deferential to these privilege claims, so there 
is a real opportunity for abuse.
    As was mentioned, just yesterday there was a press report 
that the Department of Justice has told the U.S. Court of 
Appeals for the Ninth Circuit that it will continue to assert 
the state secrets privilege in a case brought by five men who 
claim to have been the victims of extraordinary rendition. The 
assertion of the privilege will likely cause the case to be 
dismissed.
    In response to press inquiries, a DOJ spokesperson said a 
review of all the cases where the state secrets privilege has 
been invoked is underway and ``the Justice Department will 
ensure the privilege is not invoked to hide from the American 
people information about their Government's action that they 
have a right to know. This administration will be transparent 
and open, consistent with our national security obligations.''
    So I am glad to hear that this review, which I asked 
Attorney General Holder to do, is underway. I will follow the 
issue very closely, and I am not going to ask you about the 
Ninth Circuit case here. But will you commit to me that, if you 
are confirmed, you will arrange for a classified briefing on 
this case so I can understand the decision you have made?
    Mr. Perrelli. Senator, with respect to the particular case, 
I think I would need to consult with others at the Department 
about what information is most appropriate to be shared. I will 
say that my background and experience in this area has let me 
see these issues from all sides. As a law clerk, I worked on 
Iran-contra and the difficult issues of how you move forward in 
a criminal case where classified information is throughout the 
matter.
    At the Department of Justice, as the head of the Federal 
Programs Branch, it was my job to invoke the state secrets 
privilege working with others in the intelligence agencies in 
court. And so I spent a significant amount of time working 
through when it is appropriate and not to assert the state 
secrets privilege.
    And in the private sector, I represented a company whose 
claim of more than $1 billion was held not to be triable 
because of the state secrets privilege.
    So I have seen this from all angles, and I look forward to 
being part of that review.
    Senator Feingold. But you will, if confirmed, give me an 
answer about whether I will get a classified briefing on this?
    Mr. Perrelli. I will give you an answer if confirmed, 
Senator.
    Senator Feingold. And I just want to confirm. One thing: I 
believe you indicated to Senator Specter that you would take a 
close look at the legislation that he and Senator Kennedy 
introduced in the last Congress, which was approved by this 
Committee, to give better guidance to the courts on how these 
claims of state secret privilege should be handled. Is that 
right?
    Mr. Perrelli. I will, Senator, and I look forward to 
speaking with the Committee about that if I am confirmed.
    Senator Feingold. There is a lot of suspicion of the 
Government out there, and this is important legislation that 
the Department should get behind. I think it is very important.
    Finally, as I understand it, the Associate Attorney General 
is responsible primarily for Divisions of the Justice 
Department that deal with civil cases--the Civil Rights 
Division, the Tax Division, Antitrust Division, and others. But 
each of these Divisions has a criminal enforcement section 
which you would also supervise. What in your background gives 
you the experience and knowledge needed to take on these 
criminal responsibilities?
    Mr. Perrelli. Senator, I appreciate the question. In my 
prior service at the Department of Justice, I served as counsel 
to the Attorney General with a portfolio that essentially 
followed that of the Associate Attorney General so that I had 
on her immediate staff the direct supervisory role with respect 
to those same civil litigating components as well as the 
criminal aspects of those components--hate crimes, for example, 
in the Civil Rights Division, environmental crimes. So my 
experience I think dovetails particularly well with those 
aspects of criminal jurisdiction that fall within the 
Associate's role.
    Senator Feingold. Thank you.
    Thank you, Mr. Chairman.
    Senator Cardin. Thank you, Senator Feingold.
    Senator Coburn.
    Senator Coburn. Thank you. Welcome to you both.
    Ms. Kagan, one of the things that you said earlier was 
explaining your role in terms of all three branches of the 
Federal Government, and I just kind of have a ``what if.'' What 
if we have a statute that has been previously signed by the 
executive branch, passed by Congress, and we have an executive 
order that undermines the statute? In that case, you would have 
to figure out whether you support the executive order or you 
support the statute? How would you go about determining that?
    Ms. Kagan. That is a very interesting hypothetical 
question, Senator. I will say a little bit about a process 
first, because the first thing that I would do is really to 
reach out to people within the Government--and that means both 
within in the administration but also to Congress--to try to 
figure out what is going on and who requires representation and 
so forth. So there would be a lot of work to be done to talk to 
people, both the people responsible for the EO and the people 
responsible for the statute.
    But I will give you just a gut instinct, which is that in a 
case like that, the defense, the obligation to defend statutes 
continues on, and the same narrow two exceptions are the only 
reasons in which you would not defend a statute: either if 
there is no reasonable basis in law, and it would not appear to 
me that an EO which call into question the legal basis for a 
statute; or if the statute impinged on a core element of 
executive power. And those would be the only two exceptions, 
both extremely narrow, and my guess is that your hypothetical 
would not fall within either.
    Senator Coburn. OK. Thank you very much.
    Of all I have read, the only real criticism that you have 
had is that you have not been a litigant in the past. As a 
physician, you know, I do not send patients to the professors 
at the university unless they are the expert in the field who 
have actually practiced rather than just taught. And I wonder 
how you respond to the criticism of this wonderful resume you 
have, but yet you have never been a justice and you have never 
actually been a litigant. I have no doubt in hearing you that 
you are up to the task, but how are you going to handle that 
and how are you going to prepare yourself?
    Ms. Kagan. I think that is a very fair and important 
question. I am very confident that I am up to this part of the 
job, as I am to all the many other parts of the job.
    Senator Coburn. I have no doubt.
    Ms. Kagan. And I will say a little bit about why. I think 
when you get up to that podium at the Supreme Court, the 
question is much less how many times have you been there before 
than what do you bring up with you. And I think I bring up some 
of the right things. I think I bring up a lifetime of learning 
and study of the law, and particularly of the constitutional 
and administrative law issues that form the core of the Court's 
docket. I think I bring up some of the communication skills 
that have made me--I am just going to say it--a famously 
excellent teacher.
    [Laughter.]
    Ms. Kagan. I hope I bring up a set of--I hope I bring up 
strong legal analytic skills. This is for you to determine, of 
course, in the end, but I hope I bring up those kinds of 
skills. I hope I bring up excellent judgment. I hope I bring up 
what is maybe most important in addressing the Court, which is 
a kind of candid and direct way of speaking. So all of those 
things I think are important.
    And I should say, Senator, that I will by no means be the 
first Solicitor General who has not had extensive or indeed any 
Supreme Court argument experience. So I will just give you a 
few names: Robert Bork, Ken Starr, Charles Fried, Wade McCree. 
None of those people had appeared before the Court prior to 
becoming Solicitor General.
    Senator Coburn. And some of them, the record would show, 
had some difficulties in their presentations before the Court 
as well. So I am not accusing you of that.
    [Laughter.]
    Senator Coburn. Let me----
    Ms. Kagan. Now I want to know who you mean.
    Senator Coburn. Well, my staff is going to invite you to 
come by and visit with me, so we will have a great conversation 
on that.
    Mr. Perrelli, I have a few questions for you and, again, 
thank you, and I am here in case your wife needs me.
    Mr. Perrelli. Thank you, Senator. I have been heard to say 
that you are the most important member of this Committee to 
me--at least today.
    [Laughter.]
    Senator Coburn. Mr. Perrelli, the Department of Justice is 
responsible for enforcing our Nation's obscenity and child 
exploitation laws. The one thing that I think Attorney General 
Alberto Gonzales got right was establishing the Department's 
Project Safe Childhood Initiative to protect children from 
online exploitation and abuse.
    Will you enforce the Child Protection Restoration and 
Penalties Enhancement Act of 1990 or will you seek to make 
changes the way the act is enforced?
    Mr. Perrelli. Senator, with respect to that act, I think 
that it is likely that the responsibility for that will not 
fall within the Associate Attorney General's purview, but I can 
assure you that both in terms of enforcement of the act as well 
as defense of the act, in the event that it is challenged, 
which may well come under the Associate Attorney General, I 
would seek to enforce the law in the first instance and defend 
the law if any reasonable argument could be made, as I have in 
the past when I was the head of the Federal Programs Branch, 
which defends most of these statutes. We defended the Child 
Online Protection Act, for example, against constitutional 
challenge.
    Senator Coburn. The same would apply to the Children's 
Internet Protection Act and the Child Protection and Obscenity 
Enforcement Act of 1988? Same answer?
    Mr. Perrelli. To the best of my knowledge, those would be 
most likely to fall under the criminal jurisdiction for 
enforcement purposes, but defense of any act would likely fall 
under my jurisdiction.
    Senator Coburn. Do you think any of your past experience in 
terms of those that you have defended or advocated for will 
affect your ability to enforce in a right manner, what we would 
consider a right manner, those appropriate laws?
    Mr. Perrelli. No, I do not, Senator.
    Senator Coburn. Thank you.
    Last year, I participated in legislation targeting 
combating child exploitation and enhancing the enforcement of 
the child exploitation law. The SAFE Act imposes enhanced 
criminal penalties for the use of the Internet to violate child 
pornography or sexual exploitation laws. It also expands the 
reporting requirements of electronic communication and remote 
computing services with respect to apparent violations of such 
abuse and pornography laws.
    If confirmed, will you have any problem vigorously 
enforcing such laws as the SAFE Act?
    Mr. Perrelli. Senator, I think with respect to any 
enactment of Congress, my role will be to defend that statute 
if any reasonable argument can be made, and I would be happy 
certainly to work with the Committee on that.
    Senator Coburn. One final question. Do you personally 
believe adult obscenity contributes to the sexual exploitation 
of children in any way?
    Mr. Perrelli. Senator, I cannot say that I have any 
recollection of looking at social science at all, but I would 
say that there is--we have to do everything we can to protect 
children from depictions that are going to be harmful to them. 
And I would certainly work with the Committee and take whatever 
steps are appropriate to do so.
    Senator Coburn. But it is not your view that that in 
itself, adult obscenity, contributes to child exploitation?
    Mr. Perrelli. I have not looked--with respect to adult 
obscenity--and we are talking about unlawful materials. I think 
those are criminal and need to be prosecuted. With respect to 
the impact of them, to the extent that they are seen by 
children, I think it certainly would impact children. I have 
not looked at any--I do not have a view as to whether the 
existence of those materials viewed only by adults and nothing 
more, but it obviously would concern me to the extent that the 
same adults who are viewing that material are also inclined 
toward viewing material related to children.
    Senator Coburn. I will be happy to send you the literature 
on adult obscenity and child predators.
    Thank you, Mr. Chairman. And I would ask unanimous 
consent--I am going to have to leave--to submit additional 
questions for the record.
    Senator Cardin. Without objection.
    At this point, it might be appropriate, Senator Coburn, 
that I just put into the record the documentation we have in 
support of Mr. Perrelli from the National Center for Missing 
and Exploited Children, the Boys and Girls Clubs of America, 
the National Center for Victims of Crime, the Fraternal Order 
of Police, Federal Law Enforcement Officers Association, the 
National Association of Police Officers, and the Police 
Executive Research Forum. Without objection, they will be made 
part of the record. Thank you, Senator Coburn.
    Senator Klobuchar.
    Senator Klobuchar. Thank you very much, Mr. Chairman.
    Congratulations to both of you. Dean Kagan, I noted that 
when Senator Reed was introducing you, he did not emphasize 
enough your University of Chicago background. As an alumni, I 
know it is not always easy to survive there, so I congratulate 
you on that.
    I was going to ask you--I was reading an article here--how 
you managed to get a standing ovation from the Federalist 
Society at Harvard. But after I listened to your exchange with 
Senator Coburn, I think I understand why.
    As a general matter, I think it is very important that we 
restore a belief in the law over politics to the Justice 
Department, and I think your background, not just your legal 
experience, but clearly your background in reaching out to 
people of different views will be helpful to have that kind of 
credibility.
    So I was just going to ask a more specific question. You 
have talked about how you respect so many of the other 
Solicitor Generals for their role in how they have upheld the 
law and argued for the law even when they did not personally 
believe it or in very narrow exceptions when it impinges of the 
President's executive power. But I was wondering if there is 
anything about the Solicitor General's role that you would 
change.
    In particular, one of the things I have noticed as a lawyer 
is the fact that the Solicitor General's approval is always 
needed for the U.S. to take an appeal when the Government loses 
a case, but does not play a role in a decision when the 
Government wins a case. And I believe it has led to some 
inconsistency in how some of these appeals have been taken. So 
I wondered if that or some other issues you would consider of 
differentiating yourself in the role of a Solicitor General.
    Ms. Kagan. Well, thank you, Senator. It is an interesting 
question, and I think I am going to disappoint you on it a 
little bit, because my basic view of the Solicitor General's 
Office is, ``If it ain't broke, don't fix it.'' And I do not 
think that this office is at all broke. It has been an 
extraordinary office for so many years with such dedicated 
civil servants, incredible lawyers, and then I think that the 
leadership has been really quite excellent.
    And I think that some of the practices that you were 
talking about have grown up because it is so important for the 
Solicitor General's Office to maintain the credibility, to 
maintain credibility with the Court and for the Court to feel 
as though the Solicitor General's Office really has an 
understanding of what its role is and of what it can do.
    So, for example, you said the Solicitor General only 
decides which appeals to take, and there are many, many times 
when people in the Government do wish to take a case up to the 
Supreme Court where some part of the Government, some agency 
has lost a case, and the Solicitor General is very often in the 
position of saying, no, we are not going to do that, we are not 
going to take that case up. That is an extremely important 
thing for the Court to protect its jurisdiction and to make 
sure that it is not deluged, and for the Court really to act 
as--for the Solicitor General to act as the----
    Senator Klobuchar. And I do not question the Solicitor 
General's role with that at all. I was just wondering some of 
the decisions that are made not to become involved in other 
appeals when the Government wins the case.
    Ms. Kagan. Well, you can see why when the Government wins 
the case----
    Senator Klobuchar. No, I know. But, I mean, there has just 
been----
    Ms. Kagan. One would want to rest there.
    [Laughter.]
    Senator Klobuchar. I understand that. I just meant becoming 
involved in those cases, because we have just seen some 
inconsistencies over time.
    Ms. Kagan. Yes. Well, it is very interesting, and I would 
love to talk to you about this further and to hear some 
examples of that.
    Senator Klobuchar. OK. Thank you.
    Mr. Perrelli, I do note that your son seemed to quiet down 
when he was given a BlackBerry. Is that right? That is what 
Senator Feingold and I saw, and we were very interested in 
that. Just like the President, he cannot be without his 
BlackBerry?
    Mr. Perrelli. It is sad but true. I do believe that our 
children mimic what they see from their parents.
    Senator Klobuchar. All right, good. Well, I was a 
prosecutor for 8 years, ran an office of about 400 people, and 
one of the things that was most troubling to me in just the 
last few years was what happened to our U.S. Attorney'S Office 
in Minnesota. It was a gem of an office under Republican and 
Democratic Presidents. Someone was put in there without the 
experience to run it, a political appointment, and General 
Mukasey actually fixed it when he got in, and it is now back on 
track. But it was really shocking to me to see how quickly that 
office deteriorated and what went on there. And I wanted to say 
how much I appreciated the decision of the administration to 
keep on some of the appointees as we wait. I think it would 
have been a bad idea to suddenly throw out these U.S. Attorneys 
in there now as we try to chart a new course.
    So my question is along that line. What would you do with 
Attorney General Holder to improve morale in the Department?
    Mr. Perrelli. Well, Senator, I think it is an important 
question, and the experience of having worked through the 
transition process I think demonstrated that the experience and 
talent of the Justice Department remains throughout. There are 
extraordinary public servants at every level. But there have 
been concerns, and obviously part of the Inspector General's 
reports about politicization, and those have affected morale. I 
think it starts from the top. I think the Attorney General and 
others, including myself, if confirmed, need to both speak 
actively and make clear from the top down about what the 
mission of the Department is, to re-energize that mission, and 
to assure career attorneys that kind of partisanship that may 
be of concern to them will not occur again.
    And then I think it also is critically important to listen 
and hear from the Divisions and the U.S. Attorney's Offices 
what they feel like has been working and what has not been 
working, and do our best to improve those. And I think it will 
be a--it is a lengthy process, but there is such a reservoir of 
experience and talent there that I believe that we can 
accomplish this.
    Senator Klobuchar. One of the other things I think is so 
important is how the Department of Justice works with local 
county attorneys and local prosecutors across the country. I 
saw some breakdown of that, and it has always been my view that 
people do not care who prosecutes a case, whether it is the 
State's attorney or the U.S. Attorney's Office. Could you talk 
a little bit about how you would plan the Justice Department to 
reach out to local prosecutors?
    Mr. Perrelli. Certainly, Senator, and it is a critically 
important question, because I think we all have to be pulling 
the oars together in order to make our communities the most 
safe that we can. And I think that rebuilding the Federal, 
State, local, and tribal relationships is going to be 
critically important going forward. Certainly I have had law 
enforcement officials express concern about not having been 
consulted about issues.
    With respect to the role of the Associate Attorney General, 
a primary area for the Associate is going to be in the 
grantmaking programs, technical assistance, and training for 
State and local authorities. And I hope to look forward to a 
robust and, frankly, daily dialog with State and local 
authorities about what is working for them, because my prior 
experience in the Government is that if you actually spend some 
time talking and working with them in individual communities, 
you can find the best solutions for the particular problems 
that they face.
    Senator Klobuchar. I am out of time here, but two areas 
that I hope you will consider in the future is the white-collar 
crime area, the fraud area, and how difficult it is for local 
prosecutors and local police to take on some of these cases. 
And I remember there were always promises of all these labs 
from the Federal Government, and it is very difficult for small 
police departments to take these on. So I think it is something 
that I hope that you will look at in the future.
    Mr. Perrelli. I will, Senator.
    Senator Klobuchar. Thank you.
    Senator Cardin. Senator Kyl.
    Senator Kyl. Thank you, Mr. Chairman.
    Dean Kagan, I would like to ask a favor, if you would 
please read and, then when you are finished, give me your 
thoughts on a law review article written by Rex Lee, one of the 
preeminent Solicitor Generals, served under Ronald Reagan, Ohio 
State Law Journal, 1986, in which he describes from his 
perspective the unique and important role as steward of the 
Office of SG that the people who have held that position have, 
and I would like to get your take on it. I think it is a very 
good description of what a good SG should be.
    Ms. Kagan. Senator, if I may?
    Senator Kyl. Yes, surely.
    Ms. Kagan. I was told yesterday, I suppose one of your 
staff said that you had an interest in this article, and I did 
read that article yesterday.
    Senator Kyl. Oh, good. I did not want to catch you by 
surprise.
    Ms. Kagan. No, it was very fair. But I just want to say 
that I completely agree with you. I think it is a very 
thoughtful, powerful article about the SG's role. And I might 
have a quibble here or there, but I basically found myself 
agreeing with all the main points.
    Senator Kyl. For those who have not, it is a bit of a 
template for how an SG approaches decisionmaking about what 
cases to take and how to proceed, among other things. I would 
like to discuss it with you further. Thank you for that.
    I do want to follow up, though, on the point that Senator 
Coburn was making about the matter of experience. I like to 
talk to my grandkids about, for example, the difference between 
intelligence and wisdom to encourage them--and from my 
perspective, wisdom is a combination of learning, knowledge, 
and experience, which also produces knowledge. And, obviously, 
I am encouraging them to get that learning and to get that 
experience.
    And while it is true that you, because of your stellar 
academic background, bring a great deal to the Court as a 
litigant, it is also true that there is much to be gained by 
the experience of participating in a lot of oral arguments 
before appellate courts. You learn by doing, and you learn how 
to be better than your opponent. You are always facing- -by and 
large, you are facing, usually you are facing an experienced 
litigator who has practiced before the Court on the other side. 
And there is an advocacy ability that comes not just from 
academic knowledge, but by doing it. And you learn through 
trial and error what works and what does not work. I suggest 
that for the position of SG, you learn what arguments can be 
effective and which ones cannot, even what cases you might want 
to take and not take relative to the possibility of winning it.
    What I am saying is that theoretical knowledge, the 
academic knowledge, while important, and good public speaking, 
while important, in my view are no substitute for having done 
litigation which causes you in that arena where you have got to 
think very quickly and where your past experience can guide you 
in how to proceed, that as compared to someone without the 
experience, someone with just the academic knowledge, is less 
suited to the position.
    Now, I appreciate that you have great confidence in your 
abilities, but I think there--I would commend to you some 
degree of humility when you face some very experienced 
litigator who knows the ins and outs of the argument because he 
or she has done it a lot of times before.
    I am not going to get into your background. The Committee 
is well aware of that background and you have conceded it does 
not consist of litigation experience. But respond to--and I am 
really concerned about this. I appreciate your academic 
learning. But, I mean, I think I am a fairly smart lawyer 
trained in the law, but I do not think I would be the best 
candidate for a top con. law position in a top law school in 
the country. That is an analogy I appreciate. But speak to the 
concern I have, please.
    Ms. Kagan. Well, I appreciate it. And, first, let me say I 
completely agree with you on the necessity of wisdom and 
judgment as opposed to just book learning. I think that this is 
true for many, many roles in life, the SG included. And I think 
one of the things I would hope to bring to the job is not just 
book learning, not just the study that I have made of 
constitutional and public law, but a kind of wisdom and 
judgment, a kind of understanding of how to separate the truly 
important from the spurious, or just a kind of situation sense, 
however you want to describe it. And, you know, I hope that you 
will look at some of the letters that people have written about 
me, because I think in my current job and other places, I hope 
that I have demonstrated that kind of judgment as opposed just 
to book learning.
    And I will say to you, Senator, I am in complete sympathy 
with what you said about humility, and I like to think--I like 
to think--that one of the good things about me is that I know 
what I do not know and that I figure out how to learn it when I 
need to learn it. And this was one of those things where I am 
going to make a very intensive study of what I might be missing 
when I come to the job, if you see fit to confirm me, and to 
talk to a lot of people within the SG's Office and outside the 
SG's Office, and really to try to figure out how to fill any 
gaps that there are.
    Now, when you think about a job like the SG, frankly, 
anybody has some gaps. You know, one person might not have the 
litigating experience; another person might not have the deep 
knowledge of constitutional or statutory law or so forth. But 
what you have to do is to try to figure out what you do not 
know.
    Senator Kyl. Sure. I appreciate that. The greatest 
knowledgeable surgeon, though, still has to get those fingers 
working to do the right kind of sewing, and there is a big 
difference between a 55-minute lecture and being constantly 
interrupted by the Court to where your wonderful presentation, 
you know, it gets sliced down into about five coherent things 
that you are able to say. And practice is what enables you to 
do that.
    Let me just quickly ask you one matter, and this relates to 
the Solomon amendment that was also discussed earlier. The 
brief that you signed and that was submitted on behalf of the 
group of law schools the Court itself said represented a rather 
cramped interpretation of the law. It was not very kind to the 
interpretation in the brief that was submitted.
    Do you think if you had been Solicitor General when 
Rumsfeld v. FAIR came to the Court, that you would have 
defended the statute, and that you would have interpreted it to 
bar universities from discriminating against military 
recruiters?
    Ms. Kagan. I absolutely would have, Senator, and I am glad 
you asked that question because the answer is clear. The Third 
Circuit, of course, held the statute unconstitutional. That was 
actually not the ground on which we argued, but the Third 
Circuit held it unconstitutional. There is a clear obligation 
on the part of the Solicitor General to defend the statute in 
that circumstance unless there is no reasonable basis to argue 
for the statute. And I feel comfortable in this case because it 
is a historic case, because I know the case--because I know the 
facts, because I know the litigating posture of the case, I 
feel comfortable saying, of course, there was a reasonable 
basis. I mean, my gosh, the Supreme Court rules 9-0.
    So I absolutely would have defended that statute, and I 
would have defended it in exactly the way that Senator Feingold 
has noted Generals Olson and Clement defended the McCain-
Feingold law.
    Senator Kyl. Again, thank you. And I would appreciate the 
chance just to visit privately for a little bit.
    Senator Cardin. Senator Kyl, thank you for your inquiry.
    Let me just, if I might, put into the record--I think it is 
appropriate at this point--the letter of endorsement that 
received from the Solicitor Generals from 1985 to 2009 in 
support of Dean Kagan. The letter states that, ``Dean Kagan 
will bring distinction to the office, continue its highest 
traditions, be a forceful advocate for the United States before 
the Supreme Court. Elena Kagan would bring to the position of 
Solicitor General a breadth of experience and a history of 
great accomplishment in the law. We believe that she will excel 
at the important job of melding the views of various agencies 
and departments into a coherent position that advances the best 
interests of the National Government. She will be a strong 
voice for the United States before the Supreme Court. Her 
brilliant intellect will be respected by the Justices, and her 
directness, candor, and frank analysis will make her an 
especially effective advocate.''
    That is from the former Solicitor Generals from 1985 to 
2009.
    Senator Feinstein
    Senator Feinstein. Thank you very much, Mr. Chairman, and 
welcome to both of you and congratulations, and certainly, Ms. 
Kagan, as the first woman, it is a very special event, so 
double congratulations.
    You mentioned in response to a prior question that if the 
Solicitor General's Office is not broke, your view is do not 
fix it. But I would like to give you one instance where I 
believe it was, and that was in the case of Massachusetts v. 
the EPA, where California and 11 States and a group of 
nonprofits sued the EPA for failing to regulate greenhouse gas 
emissions that cause global warming. The Solicitor General 
opposed the suit. He argued that the States could not sue 
because they could not prove that the EPA's decision affected 
them in any meaningful way.
    The Supreme Court disagreed. It found that the emissions 
could cause sea level and water storage changes that would 
directly affect the States and their citizens. So this was one 
instance where I think a very bad decision was made.
    Do you believe it was wrong? And how would you decide these 
issues of standing?
    Ms. Kagan. Well, Senator, you ask a question that I do 
think goes to the role of the Solicitor General's Office, 
because in that case the Solicitor General's Office was 
representing the position of the agencies involved. And if it 
was right or if it was wrong was more a matter of whether the 
agency had decided the right thing. But I think the Solicitor 
General's role, just as the Solicitor General defends statutes 
to the best of her ability, the Solicitor General has to defend 
executive actions to the best of her ability as well.
    So if there is a regulation or if there is a policy or 
practice that the executive branch has set forward or that any 
particular agency in it has set forward, the usual thing for 
the Solicitor General to do is to vigorously defend that policy 
or practice in Court. And without knowing all the ins and outs 
of the communications between the Solicitor General and the EPA 
in that case, I suspect that that is the decision that the 
Solicitor General made.
    Senator Feinstein. Yes, well, of course, there are many of 
us--I happen to be one--that believe that the EPA was very 
politicized in the past administration, and this is just one 
example. But essentially what you are saying is whatever the 
agencies want, the agencies would get in terms of a 
determination of standing. Is that correct?
    Ms. Kagan. You know, I think that the presumption is--just 
like the presumption is that the Solicitor General's Office 
defends statutes, the presumption is that the Solicitor 
General's Office will defend agency actions and agency 
decisions to the best of its ability.
    Senator Feinstein. OK. Let me switch topics and ask: Are 
you both familiar with a bill that we spent a great deal of 
time on in the last session, and that is the Foreign 
Intelligence Surveillance Act?
    Mr. Perrelli. Senator, I am generally familiar with it.
    Senator Feinstein. How about you, Ms. Kagan?
    Ms. Kagan. Same.
    Senator Feinstein. Well, you mentioned the Jackson formula 
from Youngstown, and as you know, with the Terrorist 
Surveillance Program, the President sought to go outside the 
law and did, in fact, go outside the law. And that program now 
is totally under the Foreign Intelligence Surveillance Court. 
However, during this period of time, we were reviewing the 
Foreign Intelligence Surveillance Act, and we strengthened 
dramatically, I believe, the exclusivity sections of that act.
    When President Carter signed the act following the Church 
Commission's revelations, he essentially called it the 
``exclusive tool of governance of the collection of foreign 
intelligence.'' Well, the Article II authority of the President 
was used essentially to go around this. We then strengthened it 
additionally in this latest amended act, which is now law.
    Have you had an opportunity to review that? And do you 
believe that the exclusivity provisions are such that they are 
compelling and, therefore, the President cannot go around this 
law and illegally then collect foreign intelligence?
    Mr. Perrelli. Senator, I have not looked at the exclusivity 
provisions for that precise purpose. Echoing Dean Kagan 
speaking before, certainly in a circumstance where Congress has 
spoken directly on a subject, whatever the authority President 
has is at its lowest ebb. So I think that statement by Congress 
will be an extremely powerful statement in terms of what the 
authority of the executive branch is.
    Senator Feinstein. Ms. Kagan.
    Ms. Kagan. I cannot say anything more than that.
    Senator Feinstein. OK. Have either of you had an 
opportunity to review the Geneva Conventions?
    Ms. Kagan. Again, generally, Senator.
    Senator Feinstein. With respect to the laws of war, which 
essentially cover the detention of an enemy combatant for the 
duration of a conflict?
    Mr. Perrelli. Senator, I have had occasion to review that 
in the context of reviewing the Supreme Court's decisions in 
that area to date.
    Senator Feinstein. Well, let me ask you this question then: 
Do you believe they are sufficient to detain an individual who 
is found to be an enemy combatant until the end of the 
conflict?
    Mr. Perrelli. Senator, I think I would want to consult 
further with experts in the field. The description from your 
question sounds similar to, at least in part, the Supreme 
Court's decision in the Hamdi case. But I am not certain of all 
the potential exceptions or nuances to that. But certainly that 
was in part what a majority of the Court held in that case. 
That is the best of my recollection.
    Senator Feinstein. The reason I raise this is because I 
think it is going to be a fundamental question as we consider 
the end planning for detainees as Guantanamo is closed, because 
the question arises: What do you do with people who might not 
be able to be tried but are adjudged, through a proper due 
process panel, to be a danger to the national security of this 
country and/or enemy combatants? Can they continue to be held 
without trial?
    It is my understanding that the laws of war do permit this. 
Now, this is an asymmetric war, and it is apt to go on for a 
substantial period of time. But I was just curious whether you 
had a view on that. Clearly, you do not.
    Mr. Perrelli. Well, Senator, I think, as I indicated, my 
understanding is that that is indeed what the Hamdi case held, 
and certainly I think the President has made clear that, in 
considering the outcome of the Guantanamo review, keeping the 
country safe is his first priority.
    Senator Feinstein. Thank you.
    Thank you, Mr. Chairman.
    Senator Cardin. Thank you.
    Senator Graham.
    Senator Graham. To pick up where Senator Feinstein left 
off--which is an excellent question, and this country needs to 
discuss this openly and, quite frankly, somewhat behind closed 
doors. But, Dean Kagan, do you agree with me that under normal 
criminal law there is no process to hold someone indefinitely 
without trial under domestic criminal law?
    Ms. Kagan. Under normal criminal law? Yes, I do agree with 
you.
    Senator Graham. And if you had a criminal statute that 
would allow someone to be held forever without trial, that 
would no longer be criminal law, it would be something else.
    Ms. Kagan. That seems right, Senator.
    Senator Graham. OK. Now, if one is at war--let me ask this: 
Do you believe we are at war?
    Ms. Kagan. I do, Senator.
    Senator Graham. OK. Let me read from Mr. Holder here. Would 
you consider him your boss?
    Ms. Kagan. In a manner of speaking, Senator. I guess he can 
fire me, so that makes him my boss.
    Senator Graham. That would make him your boss. But he seems 
to be--I think he would be a good boss.
    Ms. Kagan. I think so, too.
    Senator Graham. And I think you would be very qualified for 
your job. I asked him, ``Do you think we are at war?'' And he 
says, ``I don't think there's any question but that we're at 
war. I think to be honest, I think our Nation didn't realize 
that we're at war when, in fact, we were. When I look back at 
the 1990's and Tanzania, the embassy bombings, the bombings of 
the Cole, I think we as a Nation should have realized that at 
that point we were at war. We should not have waited until 
September 11, 2001, to make that determination.''
    Do you agree with that?
    Ms. Kagan. It is easy to agree with my boss in that 
circumstance.
    Senator Graham. OK. I asked him where the battlefield might 
be. If we are at war, I asked him, ``Where would the 
battlefield be?'' And he gave what I thought was a--I said, 
``If you are trying to explain to a civics class, a 9th grade 
civics class about the battlefield in this war, what would it 
be?'' And he said, ``The battlefield--there are physical 
battlefields, certainly, in Afghanistan, but there are 
battlefields, potentially, you know, in our Nation. There are 
cyber battlefields that we're going to have to--where we're 
going to have to engage. But there's also--and this sounds a 
little trite but I think it's real--there's a battlefield, if 
you want to call it that, with regard to the hearts and minds 
of the people in the Islamic world. We have to do things in a 
way, conduct ourselves in a way, that we win that battle as 
well, so that people there who might otherwise be well 
intentioned do not end up on the wrong side and against us.''
    Do you agree with that? Well, I certainly do, too. And I 
told him I felt what he was speaking of was the moral high 
ground. There is a physical high ground in traditional war, but 
in this war there is the moral high ground, and we have to 
maintain that moral high ground. I think at times we have lost 
it. But we also have to remember we are at war.
    Now, I asked him this question: ``Now, when you talk about 
the physical battlefield, if our intelligence agencies should 
capture someone in the Philippines that is suspected of 
financing al Qaeda worldwide, would you consider that person 
part of the battlefield, even though we're in the Philippines, 
if they were involved in al Qaeda activity?'' Holder said, the 
Attorney General said, ``Yes, I would.''
    Do you agree with that?
    Ms. Kagan. I do.
    Senator Graham. So that gets us back to Senator Feinstein's 
question. Under law of armed conflict, as I understand it, and 
under the Geneva Convention, Article 5 says that if there is a 
dispute about status, what you are entitled to is an 
independent, neutral decisionmaker. And in most wars, that can 
be a battlefield determination by a single officer. But because 
this is a war without end, that will not end with a ceremony in 
the USS Missouri, there will be no defined end, I am all for 
giving more due process.
    But the point she is making, I think is an important point. 
You cannot detain someone indefinitely under criminal law. They 
have to have a trial. But under military law, if you are part 
of the enemy force, there is no requirement to let them go and 
go back to the war and kill your own troops. Do you agree that 
makes sense?
    Ms. Kagan. I think it makes sense, and I think you are 
correct that that is the law.
    Senator Graham. So America needs to get ready for this 
proposition that some people are going to be detained as enemy 
combatants, not criminals, and there will be a process to 
determine whether or not they should be let go based on the 
view that we are at war, and it would be foolish to release 
somebody from captivity that is a committed warrior to our 
Nation's destruction.
    Now, the point we have to make with the world, would you 
agree, Dean Kagan, is that the determination that led to the 
fact that you are an enemy combatant has to be transparent?
    Ms. Kagan. It does indeed.
    Senator Graham. It has to have substantial due process.
    Ms. Kagan. It does indeed.
    Senator Graham. And it should have an independent judiciary 
involved in making that decision beyond the executive branch. 
Do you agree with that?
    Ms. Kagan. Absolutely.
    Senator Graham. So we can go tell the world that this 
person is being held off the battlefield not because one person 
says so, but because there is a process that led to that 
determination where you had an independent judiciary involved. 
Do you think that is important for the Nation to make sure we 
have that kind of process?
    Ms. Kagan. I do, Senator.
    Senator Graham. I will look forward to working with you and 
this new administration on how to come up with a process that 
will make that statement, to let the world know that no one is 
being arbitrarily held based on just suspicion or emotion but 
based on evidence and a legal process. And some of these people 
are going to be held maybe for the rest of their life, but it 
will be based on our values, not theirs. And my message to 
those who are on the fence: Don't join al Qaeda. Not only does 
it corrupt your own life and your own religion--if you happen 
to be a Muslim--you can wind up getting killed or dying in 
jail.
    Now, Mr. Perrelli, one of the things that I have been 
working on in the past administration, with not a whole lot of 
success, is trying to protect our intellectual property. I come 
from a manufacturing State. There are some people on this 
Committee who come from manufacturing States, and one of the 
edges that America has is the ability to innovate, but that 
innovation is routinely stolen in places like China and Russia 
and other places.
    Do you believe we have sufficient laws on the book to 
protect intellectual property in the global economy from 
regimes like China and other places in the world that are less 
than respectful? And if not, what could we do better?
    Mr. Perrelli. Well, I think, Senator, simply by identifying 
the problem, whatever mechanisms and laws we have in place 
currently do not seem to be addressing the problem because, as 
you indicate, there are significant concerns and problems in a 
number of foreign countries with respect to the theft of 
intellectual property.
    I think through the transition process, I heard from 
members of both chambers about the need to ensure that there is 
an intellectual property task force that is focused on these 
issues, or at least appoint people who are focused on this. I 
know that this Committee was one of the sources of the bill 
that created a broader intellectual property position 
throughout the administration, and we hopefully will be able to 
focus on these issues.
    Senator Graham. Well, thank you both. I think you are 
excellent choices and you will do a good job for the country, 
and I look forward to supporting you.
    Ms. Kagan. Thank you, Senator.
    Mr. Perrelli. Thank you, Senator.
    Senator Cardin. Thank you.
    Senator Whitehouse.
    Senator Whitehouse. Thank you.
    Just to follow up on Senator Graham's question, we passed 
legislation very recently that would set up an intellectual 
property czar in the White House that would empower the 
Department to put together task forces on this. And, obviously, 
implementation is yet to be accomplished, but we very much hope 
that that will be a priority for you, because I could not agree 
more with Senator Graham's concern about that.
    I want to first recognize and appreciate Solicitor General 
Fried is here, who has done such great service to Harvard, the 
Commonwealth of Massachusetts, and the country. And I am 
delighted to see the former OLC chief Jack Goldsmith also here, 
who shared such an important window into a truly extraordinary 
moment in the Department of Justice's history.
    My question for both of you has to do with the Department 
itself as an institution. It has probably had its bleakest 
period. You will be the first new administration to inherit 
that and try to rebuild it. I understand from your prepared 
testimony that you understand that and are well positioned for 
that.
    And, Mr. Perrelli, you talked about your father's long and 
distinguished work for the Department of Justice and described 
your ``reverence''--was the word you used--for the Department.
    Dean Kagan, you talked about your clerkship for Justice 
Marshall and his pride in having served as Solicitor General 
and what you called the thrilling and humbling words, ``I 
represent the United States of America.''
    I think those pieces of testimony put you in exactly the 
right place, but I want to hear each of your assurances that in 
all of your tasks, your first priority will be to defend the 
Department of Justice as an institution upon which Americans 
can rely for competence, for honesty, and for integrity.
    Mr. Perrelli. I certainly can make that assurance, Senator.
    Ms. Kagan. Senator, I can as well, and one of the glories 
of the Solicitor General's Office is that even in some very 
difficult times for the Justice Department, it has maintained 
its professionalism and its integrity and its refusal to be 
politicized.
    Senator Whitehouse. It has distinguished itself in that 
regard.
    We have heard disturbing testimony about the disassembly of 
traditional civil service safeguards that for a long time have 
protected the Department and its career staff from political 
influence. We have heard of applicants being asked, as a 
measure of their qualification, why they want to serve George 
Bush. We have had them asked about the political background. We 
have had people who had associations that were deemed 
consistent with democratic or progressive or liberal views 
knocked out of consideration for career positions. And the 
danger of all of that is that as a result people whose first 
priority is to a party and to an ideology have been allowed to 
infiltrate the Department and they will not--did not intend to 
and now will not follow the traditions of independence, 
competence, and integrity that the Department has long stood 
for. But they are in now. And although in many respects they do 
not deserve it because they did not come in through a civil 
service proper process, they now enjoy the benefits of that 
civil service process.
    Now, some people who came in I am sure are as qualified as 
anybody else and as excited about being in the Department as 
anybody else and as keen to do the right thing as anybody else, 
just the way that I think pretty much everybody who comes to 
the Department of Justice for the first time has that feeling. 
But to the extent that there are people who have essentially 
infiltrated themselves to be moles for a particular party or 
advocates for a political ideology, what mechanisms do you have 
in place to protect the Department and people who count on 
their judgment in particular cases to be protected against 
that?
    Mr. Perrelli. Well, Senator, I think it is an important 
question, and I think there is no question on a forward-looking 
basis that we have to do everything possible to ensure that 
never again are partisan criteria used in the selection of 
career attorneys or staff in any way, and that includes 
promotion decisions as well as decisions about hiring. And I 
think that, you know, having served in the Department, you 
understand the tremendous--the incredible power of standing up 
and saying you represent the United States and the 
extraordinarily high standards to which we need to measure 
attorneys at the Department of Justice.
    My view is that we need to make sure that everyone who is 
working at the Department is one with the mission, and that to 
the extent that there are those whose first priority may be to 
something other than the mission of t he Department of Justice, 
we will learn about that because their performance will 
demonstrate to us that they are working on something else or 
are focused on something else rather than the needs and 
interests of the United States.
    Senator Whitehouse. So you are completely confident that 
the existing performance evaluation and review process of the 
Department is adequate to the task of defending it against 
people who may have infiltrated it for partisan purposes?
    Mr. Perrelli. I cannot say that I am completely confident. 
It is something I would want to look at, if I am confirmed, 
with the Attorney General and others. But I think my view is 
that, going forward, we need to evaluate people based on their 
performance, and their performance with respect to the mission 
of the Department, because in the past, to the extent that 
other criteria have crept in, that is why we have a problem.
    Senator Whitehouse. Well, I certainly hope that that is the 
case, and I am prepared to accept that it may be the case. But 
I am not convinced yet, and from my point of view, I just want 
to register that as a remaining open question. But I am 
delighted that you both are candidates for these offices. I 
look forward to working with you, and I appreciate very much 
that you have taken this step to serve in these positions. The 
hassle and the criticism and the hours and the pay are all 
somewhat different than what you have experienced at different 
times in your pasts, but there is nothing quite like the 
responsibility and the honor. So I wish you well.
    Ms. Kagan. Thank you, Senator.
    Mr. Perrelli. Thank you, Senator.
    Senator Cardin. Senator Hatch.
    Senator Hatch. Well, thank you, Mr. Chairman. I welcome 
both of you to the Committee. I have great respect for both of 
you, and I appreciate the fact that you are willing to give 
your time to public service. It means a lot to me.
    You both have excellent academic credentials. Dean, you 
have done a terrific job up there at Harvard.
    Ms. Kagan. Thank you.
    Senator Hatch. No question about it. And I think it is 
evidence by the number of professors who are here today, a 
number of whom I consider close friends and who have weighed in 
in your favor from time to time with me. And I really 
appreciate you are both excellent lawyers, you are both 
excellent scholars.
    Let me just raise a case with you, Dean Kagan, that I 
raised with David Ogden last week, and that is the child 
pornography case titled Knox v. United States. Now, this is 
important not only because protecting children is one of the 
highest matters of importance, but because of the attempt to 
weaken enforcement of the child pornography statute. That was 
first made by the Solicitor General in his brief to the Supreme 
Court awhile back. Suddenly, the Solicitor General asked that a 
different definition of child pornography be used and the 
conviction in that case be reconsidered.
    You said in your opening statement that the Solicitor 
General must defend ``any Federal statute in whose support any 
reasonable argument can be made.'' In my opinion, the Solicitor 
General at that time failed in this duty in the Knox case where 
something as important at the protection of children was 
involved. And that is what the new Solicitor General in the 
last incoming Democratic administration did.
    Now, I do not want a Solicitor General who will use that 
office to change the law through the courts. Neither the 
Solicitor General nor the courts make the law. Congress does. 
And I know you write in the area of First Amendment law and 
about legislative efforts to restrict obscenity and 
pornography.
    Now, do you have any comment on the Knox case? And how will 
you keep that sort of thing from happening on your watch?
    Ms. Kagan. Senator, I do not know the case, and I am not 
sure I understand which Solicitor General did what when.
    Senator Hatch. Well, it was the first Solicitor General in 
President Clinton's tenure.
    Ms. Kagan. I see. But then it was defended later?
    Senator Hatch. Yes, it was--well, actually, it turned out, 
I think, all right in the end. But that was the argument.
    Ms. Kagan. Well, either way, Senator, I would have no 
difficulty in this area whatsoever. I mean, I would have no 
difficulty in any area defending a statute. And I cannot 
imagine why one would have any in this area.
    Senator Hatch. Well, in your review of Professor Stephen 
Carter's book on the confirmation process, you wrote that the 
Senate should ask judicial nominees about their views on 
constitutional issues, the direction they would take the Court, 
and even about votes that they would cast. Now, I would like--
--
    Ms. Kagan. The----
    Senator Hatch. Even about votes they would cast. How do you 
square this with the principle that judges must be impartial 
and with the oath they take to provide justice without respect 
to persons?
    Ms. Kagan. It is a great question, Senator, and I am not 
sure that sitting here today I would agree with that statement. 
I wrote that piece--after I had worked on this Committee, I had 
the privilege----
    Senator Hatch. If you want to know the truth, I remember 
when Judge Bork was here. He had written some outlandish things 
from time to time, but he was absolutely brilliant. And he did 
it more as an academic, as a teacher, and some on this 
Committee held that against him very badly. But the fact of the 
matter is that I think it is good for teachers to raise all 
kinds of issues on all sides of cases.
    Ms. Kagan. Right, right.
    Senator Hatch. And you are good at that.
    Ms. Kagan. Well, thank you, Senator. I was just going to 
say, you know, I wrote that when I was in the position of 
sitting where the staff is now sitting and feeling a little bit 
frustrated that I really was not understanding completely what 
the judicial nominee in front of me meant and what she thought. 
But I think that you are exactly right, of course, that there 
are other--that this has to be a balance. The Senate has to get 
the information that it needs, but as well, the nominee for any 
particular position, whether it is judicial or otherwise, has 
to be protective of certain kinds of interests. And you named 
the countervailing ones.
    Senator Hatch. Let me just say that I may not agree that 
Thurgood Marshall was the greatest attorney of the last 
century, but I agree with you he is one of the greatest. And I 
have nothing but respect for what he did for the civil rights 
community and the courage that he had in doing that. And so I 
think I would just commend you for having had the privilege of 
working with him and others on the Supreme Court who were 
giants at that time when you were there. I think you have had 
some tremendous experiences in your life, and, naturally, I 
respect that.
    Now, Mr. Perrelli, I do not want to ignore you.
    [Laughter.]
    Senator Hatch. If you are confirmed to be Associate 
Attorney General, you will oversee the Justice Department's 
Civil Rights Division. In the last several years, the Division 
has launched some important initiatives which reflect a more 
comprehensive vision of civil rights, and I want to know if you 
intend to continue these programs and priorities. Let me give 
you an illustration.
    One of these is the protection of religious liberty. Now, I 
take a tremendous interest in that. Naturally, as a member of 
the Church of Jesus Christ of Latter Day Saints, the only 
church against whom an extermination order was issued by a 
Governor of a State, I naturally have a great deal of concern, 
and not just for my faith but for people of all faiths. You 
know, it is the first liberty mentioned in the First Amendment 
to the Constitution.
    Now, the Division right now has a Special Counsel for 
Religious Discrimination to handle these cases. It has also 
developed a strong program for enforcing the Religious Land Use 
and Institutionalized Persons Act, which I introduced and which 
was passed unanimously by the Senate and the House. I think it 
is a very important bill.
    Now, what priority will the Civil Rights Division under 
your leadership give to the protection of religious liberty? 
Will you maintain the position of Special Counsel? And I would 
like your views on how this will fit into your approach to 
civil rights?
    Mr. Perrelli. Well, Senator, it is an important question, 
and I agree with you that we need to continue the efforts of 
the Civil Rights Division in protecting religious freedom. As I 
indicated previously, one of my concerns is that the number of 
statutes that the Civil Rights Division is enforcing has only 
increased while its staffing has actually been declining over 
time.
    With respect to the particular position that you reference, 
I think I would want to talk to the incoming Assistant Attorney 
General for Civil Rights at such time when he or she is 
nominated and confirmed about the right approach here. But I 
agree fundamentally that work on the RLUIPA, which I worked on 
when I was at the Department of Justice in the drafting phases, 
in cooperation with this Committee, is an extremely important 
statute, and we need to continue significant enforcement 
efforts with respect to it.
    Senator Hatch. Well, thank you. I want to express my regard 
for both of you, and I have really enjoyed listening to your 
comments here today. I think you both are very, very top-flight 
people with top-flight abilities. And I appreciate your 
willingness to serve here in Washington. It is not as much fun 
as Harvard, I have got to tell you. In fact, it gets pretty 
miserable at times.
    [Laughter.]
    Senator Hatch. But I am glad to have you here and glad that 
you are willing to serve.
    Ms. Kagan. Thank you, Senator.
    Mr. Perrelli. Thank you, Senator.
    Senator Cardin. Thank you, Senator Hatch.
    Senator Wyden.
    Senator Wyden. Thank you, Mr. Chairman. I want to welcome 
both of our witnesses as well. I know we have votes, and both 
Senator Kaufman and I are going to try and get our 5 minutes 
in, and we will try and do it quickly.
    Mr. Perrelli, let me start with you on the white-collar 
crime issue. I think we all understand that hundreds of 
billions of dollars is going out to the financial sector at 
this time, and we have seen this enormous spree of rip-offs, 
investment schemes, and frauds and the like. You have looked at 
what your predecessors in the Bush administration have done in 
the financial fraud area. What will you do specifically to 
change the Bush policy and beef up the fight against white-
collar crime?
    Mr. Perrelli. Well, Senator, I appreciate the question, and 
I agree that, particularly in the current phase of the economy 
that we are in, we need to be extraordinarily vigilant both on 
the civil and criminal side in enforcing the law against those 
who would defraud consumers as well as defraud the Government.
    As the Associate Attorney General, most of the jurisdiction 
of the components that I would supervise, if confirmed, is 
focused on the civil side, civil enforcement. But there is 
criminal jurisdiction, for example, over scammers that come out 
of the FTC, and those are enforced by the Civil Rights 
Division.
    Through the transition process, I think we talked a lot 
about the need for enhanced FBI--additional FBI agents to focus 
on white-collar crime, because over the last several years the 
FBI has really had to transform itself into a national security 
agency. We have also talked about the need for additional U.S. 
Attorneys and working with Assistant United States Attorneys in 
the field, figuring out whether a centralized task force or a 
more dispersed approach is appropriate.
    But I certainly think that we will need to focus on fraud 
both against consumers, mortgage fraud, and fraud against the 
Government, particularly with large sums of money flowing to 
the private sector. Those are going to need to be 
extraordinarily important priorities for----
    Senator Wyden. You have told me that you would look at 
putting more agents on it and more U.S. Attorneys. I want to 
hold the record open on this point because I want to know 
specifically what you would do to beef up the fight against 
white-collar crime relative to what was done in the Bush 
administration. You can get back to us quickly on that?
    Mr. Perrelli. I can, Senator.
    Senator Wyden. Very good. Second point for you, you 
represented the Recording Industry Association, and there was 
an aggressive there to pursue individuals who share music 
files. Now, clearly, the Department of Justice has got to set 
some priorities, and given the need to set priorities, do you 
believe that Government prosecutors ought to devote time to 
pursuing individuals accused of these illegal downloads if we 
are talking about, say, a small number of music files?
    Mr. Perrelli. Senator, with respect to the enforcement of 
the criminal copyright laws, that again would likely fall 
within the Criminal Division, so it would not necessarily fall 
under the purview of the Associate Attorney General.
    I would say that, to date, I think the career prosecutors 
of the Criminal Division have never yet concluded that it was 
an appropriate use of their resources to pursue such action.
    Senator Wyden. And you would support that?
    Mr. Perrelli. I have no reason to disagree with it, 
Senator.
    Senator Wyden. OK. One question for you, Ms. Kagan, and I 
share Senator Hatch's views about your qualifications, and we 
are looking forward to your confirmation. I want to ask you 
about the unusual case of Ali al-Marri, the legal resident of 
the United States who has been held at the military brig in 
Charleston for the past several years. He is currently the only 
U.S. person being held in prison in the United States on the 
grounds that he was declared an enemy combatant. And I want to 
go at this issue in a careful way because it is certainly, you 
know, a possibility that you may have to argue the case.
    So let us kind of set aside that, and what I would like is 
just a little bit of your thinking without it just being 35,000 
feet about the kind of legal principles and the legal analysis 
that you might bring to cases like this without getting you 
into the area that you might 1 day have to argue.
    So do not be so general that you just take me to 35,000 
feet and I do not get a sense of your thinking, and at the same 
time, I want to be respectful of the fact that you may one day 
be arguing. I am just trying to get a sense of how you think 
about these kinds of cases.
    Ms. Kagan. Senator, I appreciate the question, but I have 
this urge actually to stay up at 50,000 feet.
    Senator Wyden. I got the drift.
    Ms. Kagan. For the reasons that you say. You know, the 
President has authorized a review of this case and all the 
various ways of dealing with it, and that review is ongoing. I 
do not know really anything because, you know, I am only a 
nominee and I have no sense of how it is proceeding or how this 
might get to the Court, whether it would get to the Court, if 
it got to the Court what the arguments would be. I just feel as 
though I do not want to step into that area. This is, you know, 
very much an ongoing case, and also an ongoing exploration in 
the Justice Department of how to deal with it.
    Senator Wyden. Well, tell me then about the balance, the 
constitutional balance as you would think about it. What our 
country has always been about is protecting the public good--in 
this case, fighting terrorism ferociously--and at the same 
time, being sensitive to individual liberty. Talk to me about 
how you approach the balance.
    Ms. Kagan. Fighting terrorism ferociously and also fighting 
terrorism within the rule of law. And those are the two things 
that you have to make sure happen at one and the same time.
    Senator Wyden. Thank you, Mr. Chairman.
    Senator Cardin. Senator Kaufman?
    Senator Kaufman. Thank you, Mr. Chairman.
    Dean Kagan, Mr. Perrelli, I am really pleased that you are 
taking on these new assignments, and although, Dean Kagan, what 
I find is that when we were working for Chairman Biden, we got 
to question a lot earlier. And, frankly, most of the questions 
that I had have already been asked, and I do not see any reason 
to repeat them.
    I especially want to associate myself with Senator 
Whitehouse's remarks about the Justice Department and what has 
happened in recent years--not to look back. I agree with 
President Obama. We should be looking forward. But, clearly, 
there are some things that went on there that are disturbing in 
terms of keeping career people and in terms of the kind of 
people that are presently there and in terms of recruiting 
people. I think you are going to have some excellent recruits 
for the Justice Department, and it is a challenge you have to 
meet. And, Dean Kagan, I am glad to hear that you feel that the 
Solicitor General's Office is in good shape in this regard.
    I want to just thank you for--we have a vote coming up. I 
just want to thank you for serving. I think you are, as Senator 
Whitehouse said, going to have an incredible experience in the 
Justice Department. I think that what we are going to be doing 
in the Justice Department, as Senator Wyden said, are extremely 
difficult questions. No one wants to make these questions any 
simpler, and I think, Dean Kagan, that the question he asked 
you and the fact that the Justice Department is looking into 
this and trying to determine is really one of the key things.
    So I want to thank you very much for coming here today. 
Thank you for serving. I think you are excellent selections, 
and I wish you all good luck.
    Thank you, Mr. Chairman.
    Senator Cardin. Thank you, Senator Kaufman.
    Let me just echo what Senator Kaufman has just said and 
thank both of you for being willing to serve our country. These 
are very important positions, and as Senator Whitehouse said, 
it is going to be long days. Your family are going to make 
continued sacrifices, and we thank them for being willing to 
share your talent with our country.
    The hearing record will remain open for one week in order 
for members to submit questions in writing. I would urge you 
all to please respond to those questions as quickly as possible 
so that we can complete the process that we need to go through 
to make a recommendation to the floor in regards to 
confirmation.
    Chairman Leahy apologizes for not personally being here 
today. Other business kept him away from the Committee. Without 
objection, his statement will be made part of the record, and 
once again, I thank you all for your courtesies today.
    With that, the Committee will stand adjourned.
    [Whereupon, at 12:05 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]

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