[Senate Hearing 111-1044]
[From the U.S. Government Publishing Office]




                                                       S. Hrg. 111-1044

THE NOMINATION OF ELENA KAGAN TO BE AN ASSOCIATE JUSTICE OF THE SUPREME 
                       COURT OF THE UNITED STATES

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

                               ----------                              

                      JUNE 28-30 and JULY 1, 2010

                               ----------                              

                          Serial No. J-111-98

                               ----------                              

         Printed for the use of the Committee on the Judiciary






                                                       S. Hrg. 111-1044

THE NOMINATION OF ELENA KAGAN TO BE AN ASSOCIATE JUSTICE OF THE SUPREME 
                       COURT OF THE UNITED STATES

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

                               __________

                      JUNE 28-30, and JULY 1, 2010

                               __________

                          Serial No. J-111-98

                               __________

         Printed for the use of the Committee on the Judiciary








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












                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Cardin, Hon. Benjamin L., a U.S. Senator from the State of 
  Maryland.......................................................    35
    prepared statement...........................................   690
Coburn, Hon. Tom, a U.S. Senator from the State of Okahoma.......    34
Cornyn, Hon. John a U.S. Senator from the State of Texas.........    28
Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois.......................................................    31
    prepared statement...........................................   705
Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................    15
Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California.....................................................    11
Franken, Hon. Al, a U.S. Senator from the State of Minnesota.....    48
    prepared statement...........................................   712
Graham, Lindsey, a U.S. Senator from the State of South Carolina.    23
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa.    13
    prepared statement...........................................   758
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     9
Kaufman, Hon. Edward E., a U.S. Senator from the State of 
  Delaware.......................................................    45
    prepared statement...........................................   815
Klobuchar, Hon. Amy, a U.S. Senator from the State of Minnesota..    41
    prepared statement...........................................   832
Kohl, Hon. Herb, a U.S. Senator from the State of Wisconsin......     7
    prepared statement...........................................   836
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona..........    18
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont
    June 28, 2010................................................     1
    June 29, 2010................................................    59
    prepared statement...........................................   891
Schumer, Hon. Charles E., a U.S. Senator from the State of New 
  York...........................................................    25
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....     4
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................    21
    June 15, 2010, letter and attachment.........................  1067
Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode 
  Island.........................................................    39
    prepared statement...........................................  1125

                               PRESENTERS

Brown, Hon. Scott, a U.S. Senator from the State of Massachusetts 
  Presenting Elena Kagan, Nominee to be Soliitor General, 
  Department Justice.............................................    53
Kerry, Hon. John, a U.S. Senator from the State of Massachusetts 
  Presenting Elena Kagan, Nominee to be Soliitor General, 
  Department Justice.............................................    51

                               WITNESSES

Alt, Robert, Senior Fellow and Deputy Director, Center for Legal 
  and Judicial Studies, The Heritage Foundation, Washington, DC..   338
Askew, Kim J., Chair, American Bar Association, Standing 
  Committee on the Federal Judiciary, Washington, DC.............   353
Clark, Robert C., Professor and former Dean, Harvard Law School, 
  Cambridge, Massachusetts.......................................   333
Duffly, Fernande ``Nan'', Associate Justice, Massachusetts Court 
  of Appeals, on behalf of the National Association of Women 
  Judges.........................................................   358
Garre, Gregory G., Partner, Latham & Watkins LLP, Washington, DC.   335
Gibbins, Jennifer, Soundkeeper/Executive Director, Prince Wiliam 
  Soundkeeper, Cordova, Alaska...................................   309
Goldsmith, Jack, Henry L. Shattuck Professor, Harvard Law School, 
  Cambridge, Massachusetts.......................................   329
Greenberger, Marcia D., Co-President, National Women's Law 
  Center, Washington, DC.........................................   356
Gross, Jack, Plaintiff, Gross v. FBL Fiancial Service Inc., Mt. 
  Ayr, Iowa......................................................   307
Hegseth, Peter B., Executive Director, Vets for Freedom, Army 
  National Guard, Washington, DC.................................   314
Kirsanow, Peter N., Commissioner, Benesch Law Firm, Cleveland, 
  Ohio...........................................................   364
Kopel, David B., Research Director, Independence Institute, 
  Golden, Colorado...............................................   366
Ledbetter, Lily, Plaintiff, Ledbetter v. Goodyear Tire...........   306
Moe, Thomas N., Colonel, USAF (retired)..........................   316
Olson, William J., William J. Olson, P.C., Vienna, Virginia......   368
Perkins, Tony, president, Family Research Council, Washington, DC   362
Presser, Stephen B., Raoul Berger, Professor of Legal History, 
  Northwestern University School of Law, Chicago, Illinois.......   342
Rotunda, Ronald D., Professor, The Doy & Dee Henley Chair and 
  Distinguished Professor of Jurisprudence, Chapman Uniesity 
  School of Law, Orange, California..............................   336
Sullivan, Ronald S., Jr., Edward R. Johston Lecturer on Law, 
  Director of the Criminal Justice Institute, Harvard Law School, 
  Cambridge, Massachusetts.......................................   355
Whelan, Edward, President, Ethics and Public Policy Center.......   340
White, Kurt, Captain, President, Harvard Law Armed Forces 
  Association, Army National Guard...............................   331
Yoest, Charmaine, President and CEO, Americans United for Life, 
  Washington, DC.................................................   360
YoungBlood, Flagg, Captain, United States Army (retired).........   312

                       STATEMENT OF THE NOMINEES

Kagan, Elena, Nominee to be Solicitor General, Department of 
  Justice
    Opening statement June 28, 2010..............................    55
    statement June 30, 2010......................................   194
    prepared statement...........................................   812
    Questionnaire................................................   379

                         QUESTIONS AND ANSWERS

Responses of Elena Kagan, to Questions submitted by Senators 
  Leahy, Specter, Hatch, Grassley, Sessions, Cornyn and Coburn...   425
Responses of Elena Kagan, to Questions submitted by Senators 
  Cornyn, Coburn, Graham, Grassley, Kyl and Sessions.............   459

                       SUBMISSIONS FOR THE RECORD

Abzug, Liz J., Consultant Services, New York, New York, June 30, 
  2010, letter...................................................   533
All Indian Pueble Council, Joe Garcia, Chairman, Albuquerque, New 
  Mexico, June 11, 2010, letter..................................   535
Alt, Robert, Senior Fellow and Deputy Director, Center for Legal 
  and Judicial Studies, The Heritage Foundation, Washington, DC, 
  statement......................................................   536
American Association of Christian Schools, Keith Wiebe, 
  President, Washington, DC, June 26, 2010, letter...............   554
Askew, Kim J., Chair, American Bar Association, Standing 
  Committee on the Federal Judiciary, Washington, DC, statement..   555
American Center for Law & Justice (ACLJ), Jay A. Sekulow, Chief 
  Counsel, Washington, DC, statement.............................   581
American Civil Liberties Union, New York, New York, report.......   642
American Conservative Union, Larry Hart, Director of Government 
  Relations, Alexandria, Virginia, letter........................   674
Bill of Rights Defense Committee (BORDC), Northampton, 
  Massachusetts, June 28, 2010, joint letter.....................   675
Clark, Robert C., Professor and former Dean, Harvard Law School, 
  Cambridge, Massachusetts, statement............................   694
Congressional Black Caucus, Barbara Lee, Chairwoman, Eleanor 
  Holmes Nortorn, Chairwoman, and CBC Judicial Nominations 
  Taskforce, Washington, DC, June 28, 2010, joint letter.........   698
Donnelly, Elaine, President, Center for Military Readiness, 
  Washington, DC, June 29, 2010, letter..........................   700
Duffly, Fernande ``Nan'', Associate Justice, Massachusetts Court 
  of Appeals, on behalf of the National Association of Women 
  Judges, statement..............................................   702
Estrada, Miguel A., Lawyer, Gibson, Dunn & Crutcher, LLP, 
  Washington DC, May 14, 2010, letter............................   708
Fitzpatrick, Brian, Assistant Professor of Law, Vanderbilt 
  University, Nashville, Tennessee, June 8, 2010, letter.........   710
Former Solicitor General, Walter Dellinger and Theodore B. Olson 
  on behalf of Charles Fried; Kenneth W. Starr; Drew S. Days III; 
  Seth P. Waxman; Paul Clement and Gregory G. Garre; June 22, 
  2010, joint letters............................................   716
Frederick, David C., Kellogg, Huber, Hansen, Todd, Evans & Figel, 
  PLLC, Washington, DC, June 8, 2010, letter.....................   718
Garre, Gregory G., Partner, Latham & Watkins LLP, Washington, DC, 
  statement......................................................   720
Gibbins, Jennifer, Soundkeeper/Executive Director, Prince William 
  Soundkeeper, Cordova, Alaska, statement........................   737
Goldsmith, Jack, Henry L. Shattuck Professor, Harvard Law School, 
  Cambridge, Massachusetts, statement............................   741
Greenberger, Marcia D., Co-President, National Women's Law 
  Center, Washington, DC, statement..............................   747
Gross, Jack, Plaintiff, Gross v. FBL Financial Service Inc., Mt. 
  Ayr, Iowa, statement...........................................   769
Harper, Licia L., Hip Hop entertainment Law Project (HHELP), 
  Detroit, Michigan, May 18, 2010, letter........................   776
Harrison & Matsuoka, William A. Harrison, Attorneys at Law, 
  Honolulu, Hawaii, June 17, 2010, letter........................   779
Harvard Law School Graduates, Kevin M. LoVecchio, Class of 2007 
  and Joshua S. Gottheimer, Class of 2004, on behalf of the 
  Harvard Law School Alumni, Cambridge, Massachusetts, June 24, 
  2010, joint letter.............................................   781
Ho, Lam, Juris Doctor, Harvard Law School, 2008, June 29, 2010, 
  letter.........................................................   785
Hegseth, Peter B., Executive Director, Vets for Freedom, Army 
  National Guard, Washington, DC, statement......................   788
Hispanic National Bar Association (HNBA), Roman D. Hernandez, 
  National President, Washington, DC, July 1, 2010, letter.......   790
House of Representatives in Congress of the United States, 
  Members, Adam B. Schiff and James P. McGovern, June 17, 2010, 
  joint letters..................................................   792
Judicial Action Group (JAG), Birmingham, Alabama, June 1, 2010, 
  letter.........................................................   798
Kirsanow, Peter N., Commissioner, Benesch Law Firm, Cleveland, 
  Ohio, statement................................................   818
Kopel, David B., Research Director, Independence Institute, 
  Golden, Colorado, statement....................................   839
Kramer, Larry D., Dean and Richard E. Land, Professor of Law 
  Stanford Law School, on behalf of Law School Deans, Stanford, 
  California, June 7, 2010, letter...............................   854
Land, Richard D., The Ethics & Religious Liberty Commission, 
  Washington, DC, June 25, 2010, letter..........................   860
Law Clerks, former, Justice of the Supreme Court, Sharon L. 
  Beckman, Associate Justice Sandra Day O'Connor; Richard D. 
  Bernstein, Associate Justice Antonin Scalia; Albert J. Boro, 
  Jr, Associate Justice Byron White; Emily Buss, Associate 
  Justice Harry Blackmun; Paul T. Cappuccio, Associate Justice 
  Antonin Scalia; Steven T. Catlett, Associate Justice Sandra Day 
  O'Connor; Dan C. Chung, Associate Justice Anthony M. Kennedy; 
  Richard A. Cordray, Associate Justice Byron White; Ann M. 
  Kappler, Associate Justice Harry Blackmun; Peter D. Keisler, 
  Associate Justice Anthony M. Kennedy; Ronald A. Klain, 
  Associate Justice Byron White; Harry Litman, Associate Justice 
  Thurgood Marshall; Alan C. Michaels, Associate Justice Harry 
  Blackmun; R. Charles Miller, Chief Justice William H. 
  Rehnquist; Randolph D. Moss, Associate Justice John Paul 
  Stevens; Teresa Wynn Roseborough, Associate Justice John Paul 
  Stevens; E. Joshua Rosenkranz, Associate Justice William J. 
  Brennan, Jr; Michael P. Doss, Associate Justice Thurgood 
  Marshall; Gregory S. Dovel, Retired Chief Justice Warren E. 
  Burger; J. Anthony Downs, Chief Justice William H. Rehnquist; 
  Einer R. Elhauge, Associate Justice William J. Brennan, Jr.; 
  Mark H. Epstein, Associate Justice William J. Brennan, Jr., 
  Miguel A. Estrada, Associate Justice Anthony M. Kennedy; Abner 
  S. Greene, Associate Justice John Paul Stevens; Joseph R. 
  Guerra, Associate Justice William J. Brennan, Jr.; Carol S. 
  Steiker, Associate Justice Thurgood Marshall; William L. 
  Taylor, Chief Justice William H. Rehnquist; Robert H. Tiller, 
  Associate Justice Antonin Scalia; and E. Lawrence Vincent, 
  Associate Justice Anthony M. Kennedy; June 23, 2010, joint 
  letter.........................................................   861
Law School, Professors, June 29, 2010, joint letter..............   865
Lawyers, Donald B. Ayer; Lisa Blatt; Richard P. Bress; Louis R. 
  Cohen; Carolyn F. Corwin; Paul A. Engelmayer; Roy T. Englert, 
  Jr.; Barbara E. Etkind; H. Bartow Farr; James A. Feldman; 
  Andrew L. Frey; Jerrold J. Ganzfried; Kenneth S. Geller; Irv 
  Gornstein; Douglas Hallward-Driemeier; Alan I. Horowitz; Alan 
  Jenkins; George W. Jones, Jr.; Daryl Joseffer; Michael K. 
  Kellogg; Robert H. Klonoff; Bruce N. Kuhlik; Philip A. 
  Lacovara; Jeffrey A. Lamken; Albert G. Lauber; Micael R. 
  Lazerwits; Robert A. Long, Jr.; Maureen Mahoney; Ronald J. 
  Mann; Jonathan Marcus; Deanne E. Maynard; Michael W. McConnell; 
  Thomas W. Merrill; Patricia A. Millett; Gerald P. Norton; 
  Jonathan E. Nuechterlein; Carter G. Phillips; Andrew J. Pincus; 
  Charles A. Rothfeld; John P. Rupp; Elliott Schulder; Joshua 
  Schwarts; David L. Shapiro; Harriet S. Shapiro; Howard E. 
  Shapiro; Stephen M. Shapiro; Cliff Sloan; Sri Srinivasan; David 
  A. Strauss; Richard G. Taranto; Stephen L. Urbanczyk; Amy L. 
  Wax; Raul R. Q. Walfson and Christopher J. Wright, June 25, 
  2010, joint letter.............................................   883
Leadership Conference on Civil and Human Rights, Wade Henderson, 
  President & CEO and Nancy Zirkin, Executive Vice President, 
  July 19, 2010, joint letter....................................   887
Ledbetter, Lily, Plaintiff, Ledbetter v. Goodyear Tire, statement   895
Liberty Counsel, Mathew D. Staver, Founder and Chairman, Dean and 
  Professor of Law, Liberty University School of Law, Washington, 
  DC, June 25, 2010, letter......................................   898
McConnell, Michael W., Richard & Frances Mallery Professor of 
  Law, Director, Constitutional Law Center, Stanford Law School, 
  Stanford, California, June 25, 2010, letter....................   901
Military Families, United, Robert Jackson, Director of 
  Governmental Affairs, Washington, DC, June 25, 2010, letter....   909
Moe, Thomas N., Colonel, USAF (retired), statement...............   911
NAACP Legal Defense & Educational Fund, Inc., John Payton, 
  Director Counsel & President, Washington, DC, report...........   919
National Association of Social Workers, Elizabeth J. Clark, 
  Executive Director, Washington, DC, June 3, 2010, letter.......   953
National Association of Women Judges, Dana Fabe, President, 
  Washington, DC, May 19, 2010, letter...........................   955
National Congress of American Indians, Jacqueline Johnson Pata, 
  Executive Director, Washington, DC, letter and resolution......   957
National Council of Jewish Women, Nancy Ratzan, President, 
  Washington, DC, June 10, 2010, letter..........................   960
National District Attorneys Association, Christopher Chiles, 
  President, Alexandria, Virginia, June 25, 2010, letter.........   961
National Jewish Democratic Council, Ira N. Forman, Executive 
  Director and Chief Executive Officer, Washington, DC, June 15, 
  2010, letter...................................................   962
National LGBT Bar Association, D'Arcy Kemnitz, Executive 
  Director, Washington, DC, June 25, 2010, letter................   963
National Minority Law Group, Martin P. Greene, President, 
  Chicago, Illinois, June 11, 2010, letter.......................   964
National Partnership for Women & Families, Debra L. Ness, 
  President, Washington, DC, June 25, 2010, letter...............   966
National Right to Life Committee, Inc., David N. O'Steen, 
  Executive Director, Douglas Johnson, Legislative Director, and 
  Susan T. Muskett, Senior Legislative Counsel, Washington, DC, 
  June 23, 2010, joint letter....................................   968
National Right to Work Committee, Mark A. Mix, Washington, DC, 
  July 1, 2010, letter...........................................   972
National Rifle Association of America, Wayner LaPierre, Executive 
  Vice President, and Chris Cox, Executive Director, Fairfax, 
  Virginia, July 1, 2010, joint letter...........................   976
National Senior Citizens Law Center, Paul Nathanson, Executive 
  Director, Washington, DC, June 25, 2010, letter................   978
New America Alliance (NAA), Carlos Loumient, Chair of the Board, 
  Maria del Pilar Avila, Chief Executive Officer, Washington, DC, 
  June 29, 2010, letter..........................................   981
O'Hara, Patricia A., Professor of Law, University of Nortre Dame, 
  Law School, Notre Dame, Indiana, June 16, 2010, letter.........   983
Olson, William J., William J. Olson, P.C., Vienna, Virginia, 
  statement......................................................   993
OWL, Ashley Carson, Executive Director, Washington, DC, June 2, 
  2010, letter...................................................   994
Perkins, Tony, president, Family Research Council, Washington, 
  DC, statement..................................................   995
Prager, Zachary, Preger, July 1, 2010, letter....................  1005
Presser, Stephen B., Raoul Berger, Professor of Legal History, 
  Northwestern University School of Law, Chicago, Illinois, 
  statement......................................................  1006
Refo, Patricia Lee, Partner, Snell & Wilmer, Law Firm, and Co-
  chair, Dean JoAnne A. Epps of Temple University Beasley School 
  of Law, Phoenix, Arizona, statement............................  1014
Rosenberg, David, Harvard Law School, Lees S. Kreindler Professor 
  of Law, Cambridge, Massachusetts, June 28, 2010, letter........  1018
Rotunda, Ronald D., Professor, The Doy & Dee Henley Chair and 
  Distinguished Professor of Jurisprudence, Chapman University 
  School of Law, Orange, California, statement...................  1020
Rucker, Staci Patterson, Harvard Law School, Cambridge, 
  Massachusetts, June 25, 2010, letter...........................  1063
Shestack, Jerome, Lawyer, Schnader Harrison Sand Sequal & Lewis, 
  LLP, Philadelphia, Pennsylvania, May 24, 2010, letter..........  1065
Slaughter, Hon. Louise M., a Representative in Congress from the 
  State of New York, May 18, 2010, letter........................  1066
Steiker, Carol, Howard & Kathy Aibel Professor of Law, Dean's 
  Special Advisor for Public Service, Harvard Law School, 
  Cambridge, Massachusetts, June 24, 2010, letter................  1079
Stern, David, Executive Director, Equal Justice Works, 
  Washington, DC, June 24, 2010, letter..........................  1083
Sullivan, Ronald S., Jr., Edward R. Johston Lecturer on Law, 
  Director of the Criminal Justice Institute, Harvard Law School, 
  Cambridge, Massachusetts, statement............................  1085
Tressler, David M., Juris Doctor, Harvard Law School 2006, First 
  Lieutenant, Civil Affairs, U.S. Army Reserve, Khost Province, 
  Afghanistan, June 30, 2010, letter.............................  1092
United South and Eastern Tribes, Inc., Brian Patterson, 
  President, Nashville, Tennessee, July 2, 2010, letter..........  1095
Vergara, Gonzalo I., Lt. Col., U.S. Airforce, retired, May 10, 
  2010, letter...................................................  1097
Wald, Patricia M., Retired Judge, U.S. Court of Appeals, DC 
  Circuit, letter................................................  1098
Whelan, Edward, President, Ethics and Public Policy Center, 
  statement......................................................  1100
White House Project, Marie Wilson, President and Founder, New 
  York, New York, July 2, 2010, letter...........................  1122
White, Kurt, Captain, President, Harvard Law Armed Forces 
  Association, Army National Guard, statement....................  1123
Women's Bar Association, District of Columbia (WBA), Holly E. 
  Loiseau, President, Washington, DC, June 2, 2010, letter.......  1128
Yoest, Charmaine, President and CEO, Americans United for Life, 
  Washington, DC, statement......................................  1130
YoungBlood, Flagg, Captain, United States Army (retired), 
  statement......................................................  1157

 
THE NOMINATION OF ELENA KAGAN TO BE AN ASSOCIATE JUSTICE OF THE SUPREME 
                       COURT OF THE UNITED STATES

                              ----------                              


                         MONDAY, JUNE 28, 2010

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, Pursuant to notice, at 12:32 p.m., in 
room SH-216, Hart Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy, Kohl, Feinstein, Feingold, 
Specter, Schumer, Durbin, Cardin, Whitehouse, Klobuchar, 
Kaufman, Franken, Sessions, Hatch, Grassley, Kyl, Graham, 
Cornyn, and Coburn.

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM 
                      THE STATE OF VERMONT

    Chairman Leahy. Good afternoon. I welcome everybody here. 
Just so you know the procedure--Senator Sessions and I have 
discussed this--we are going to recognize Senators in order of 
seniority doing the usual back and forth. Senator Sessions and 
I will each give an opening statement and, following our 
opening statement, take turns back and forth. I would urge 
Senators to stay--in fact, we are going to have to stay within 
the 10 minutes just simply to keep on schedule.
    Of course, Solicitor General Kagan, welcome to our 
Committee room. There are somewhat more people here than usual.
    But let me begin. One of the things that will change 
slightly our schedule this week is the death of Senator Byrd. 
All of us, I believe it is safe to say, both Republican and 
Democratic Senators, are saddened by his death. No Senator came 
to care more about the Constitution or to be a more effective 
defendant of our constitutional Government than the senior 
Senator from West Virginia. In many ways, he was the keeper of 
the Senate flame, the fiercest defender of the Senate's 
constitutional role and prerogatives. I do not know how many 
times we saw Senator Byrd hold up a copy of the Constitution. 
The difference between him holding it up and any one of us 
holding it up, he could put it back in his pocket and recite it 
verbatim, the whole Constitution. Others will speak of his 
record for the time served in the Senate and Congress, for the 
number of votes case.
    I knew him as a mentor and a friend. He served for a time 
on this Committee. I was honored to sit near him in the same 
row on the Senate floor and engage in many discussions about 
the Senate and its rules or about the issue of the moment or 
about our families. And it was a privilege to stand with him 
and fight against assaults on the Constitution and what the two 
of us felt was an unnecessary and costly war in Iraq.
    He was a self-educated man. He learned much throughout his 
life. He had much to teach us all.
    Senator Byrd was such an extraordinary man of merit and 
grit and determination who loved his family and drew strength 
from his deep faith, who took to heart his oath to support and 
defend the Constitution. The arc of his career in public 
service is an inspiration to all and should inspire generations 
of Americans.
    Now, on the issue before us today, there have been 111 
Justices on the Supreme Court of the United States. Only three 
have been women. If she is confirmed, Solicitor General Kagan 
will bring the Supreme Court to a historical high-water mark.
    Elena Kagan earned her place at the top of the legal 
profession. Her legal qualifications are unassailable. As a 
student, she excelled at Princeton, Oxford, and Harvard Law 
School. She was a law clerk to the great Supreme Court Justice, 
Justice Thurgood Marshall, and I appreciate seeing Justice 
Marshall's son, Thurgood Marshall, in the audience here today. 
She worked in private practice and briefly for then-Senator 
Biden on this Committee. She taught law at two of the Nation's 
most respected law schools. She counseled President Clinton on 
a wide variety of issues. She served as Dean of Harvard Law 
School and is now the Solicitor General of the United States, 
sometimes referred to as ``the tenth Justice.'' I believe we 
are a better country for the fact that the path of excellence 
Elena Kagan has taken in her career is a path now open to both 
men and women.
    As Chief Justice Marshall wrote, our Constitution is 
``intended to endure for ages . . . and consequently, to be 
adapted to the various crises of human affairs.'' He and other 
great Justices have recognized that the broadly worded 
guarantees and powers granted in the Constitution adapt to 
changing circumstances.
    Consequently, our Constitution has withstood the test of 
time. The genius of our Founders was to establish a 
Constitution firm enough to enshrine freedom and the rule of 
law as guiding principles, yet flexible enough to sustain a 
young Nation that was destined to grow into the greatest, the 
richest, most powerful Nation on Earth, and I might say one of 
the most diverse nations on Earth.
    It took more than four score years and a Civil War that 
claimed the lives of hundreds of thousands to end the 
enslavement of African-Americans and include as citizens ``all 
persons born or naturalized in the United States.'' Through the 
Civil War amendments that followed, we transformed the 
Constitution into one that more fully embraced equal rights and 
human dignity. The country and our democracy were stronger for 
it. But the job was not complete. It was halfway through the 
last century that racial discrimination was dealt a blow by the 
Supreme Court in the modern landmark case of Brown v. Board of 
Education, Congress passed the Civil Rights Act of 1964 and the 
Voting Rights Act of 1965, and America began to provide a 
fuller measure of equality to those who were held back for so 
long because of the color of their skin.
    Our path to a more perfect Union also included the 
rejection 75 years ago of conservative judicial activism by the 
Supreme Court and our establishing a social safety net for all 
Americans. It began with us outlawing child labor and 
guaranteeing a minimum wage. Through Social Security, Medicare, 
and Medicaid, Congress ensured that growing old no longer means 
growing poor, and that being older or poor no longer means 
being without medical care. That progress continues today. All 
of us are the better for it.
    Now, the 100 members of the Senate stand here in the shoes 
of more than 300 million Americans as we discharge our 
constitutional duty with respect to this nomination. The 
Supreme Court exists for all Americans. Only one person gets to 
nominate somebody for the Court. Only 100 Americans get to vote 
on whether that person should be on the Court or not. It is an 
awesome responsibility, and I urge the nominee to engage with 
this Committee and through these proceedings with the American 
people in a constitutional conversation about the role of the 
courts and our Constitution.
    When we discuss the Constitution's Commerce Clause or 
spending power, we are talking about congressional authority to 
pass laws to ensure protection of our communities from natural 
and man-made disasters, to encourage clean air and water, to 
provide health care for all Americans, to ensure safe food and 
drugs, to protect equal rights, to enforce safe workplaces, and 
to provide a safety net for all seniors.
    Now, I reject the ideological litmus test, from either the 
right or the left, that some would apply to Supreme Court 
nominees. I expect judges to look to the legislative intent of 
our laws, to consider the consequences of their decisions, to 
use common sense, and to follow the law. In my view, a Supreme 
Court Justice needs to exercise judgment, should appreciate the 
proper role of the courts in our democracy, and should consider 
the consequences of decisions on the fundamental purposes of 
the law and in the lives of Americans.
    I will urge Solicitor General Kagan here publicly what I 
have urged her privately: to be open, to be responsive, to 
share with us but even more importantly with the American 
people her judicial philosophy, but also to assure us of her 
judicial independence from either the right or the left. I 
believe that fair-minded people will find her judicial 
philosophy well within the legal mainstream. I welcome 
questions to Solicitor General Kagan about judicial 
independence, but I would urge Senators on both sides to be 
fair. There is no basis to question her integrity, and no one 
should presume that this intelligent woman, who has excelled 
during every part of her varied and distinguished career, lacks 
independence.
    And it is essential that judicial nominees understand that, 
as judges, they are not members of any administration. The 
courts are not subsidiaries of any political party or interest 
group, and our judges should not be partisans. That is why the 
Supreme Court's intervention in the 2000 Presidential election 
in Bush v. Gore was so jarring and why it shook, in many 
people's minds throughout this country, the credibility of the 
Court. That is why the Supreme Court's recent decision in 
Citizens United, in which five conservative Justices rejected 
the Court's own precedent, rejected the bipartisan law enacted 
by Congress, rejected 100 years of legal developments in order 
to open the door for massive corporate spending on elections, 
was such a jolt to the system.
    The American people live in a real world of great 
challenges. The Supreme Court needs to function in that real 
world within the constraints of our Constitution. My own State 
of Vermont, the 14th State in the Union, did not vote to join 
the Union until the year the Bill of Rights was ratified. We 
are cautious in Vermont. Those of us from the Green Mountain 
State are protective of our fundamental liberties. We 
understand the importance the Constitution, and its amendments, 
have had in expanding individual liberties over the last 220 
years.
    I hope that Elena Kagan will demonstrate through this 
hearing that she will be the kind of independent Justice who 
will keep faith with these principles and keep faith with the 
words that are inscribed in Vermont marble over the front doors 
to the Supreme Court: ``Equal Justice Under Law.''
    I will put the rest of my statement in the record.
    [The prepared statement of Chairman Leahy appears as a 
submission for the record.]
    Chairman Leahy. Senator Sessions.

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE 
                           OF ALABAMA

    Senator Sessions. Thank you, Mr. Chairman. I would like to 
join you in recognizing this special moment of the loss of 
Senator Byrd who was such an institution here. He taught all of 
the new Senators something about the Senate. He believed there 
were two great Senates--the Roman Senate and the American 
Senate--and he wanted ours to be the greatest ever.
    I remember one day he gave a speech on a Friday morning 
that I heard in which he complained about textbooks and the 
failure to distinguish between a republic and a democracy. He 
went on at some length demonstrating that and then called them 
``touchy-feely twaddle.''
    [Laughter.]
    But he loved the Constitution, he loved our country, and he 
loved clarity of thought, and we will certainly miss him.
    Ms. Kagan, let me join Chairman Leahy in welcoming you here 
today. This nomination is certainly a proud day for you, your 
family, and your friends, and rightfully so. I enjoyed very 
much our meeting a few weeks ago and appreciated the chance to 
talk with you then.
    Mr. Chairman, thank you for your work on this nomination. 
As I have pledged, Republicans are committed to conducting this 
hearing in a thoughtful and respectful manner. It is not a 
coronation, as I have said, but a confirmation process. Serious 
and substantive questions will be asked. Ms. Kagan will be 
given ample opportunity to respond.
    Ms. Kagan certainly has numerous talents and many good 
qualities, but there are serious concerns about this 
nomination. Ms. Kagan has less real legal experience of any 
nominee in at least 50 years, and it is not just that the 
nominee has not been a judge. She has barely practiced law and 
not with the intensity and duration from which I think real 
legal understanding occurs. Ms. Kagan has never tried a case 
before a jury. She argued her first appellate case just 9 
months ago. While academia certainly has value, there is no 
substitute, I think, for being in the harness of the law, 
handling real cases over a period of years.
    What Ms. Kagan's public record does reveal is a more 
extensive background in policy, politics, mixed with law. Ms. 
Kagan's college thesis on socialism in New York seems to bemoan 
socialism's demise there. In her master's thesis, she affirmed 
the activist tendencies of the Earl Warren Court, but 
complained that they could have done a better job of justifying 
their activism.
    President Obama's nominee started her political career in 
earnest as a staff on the Presidential campaign of Michael 
Dukakis. She took leave from teaching at law school to work for 
this Committee under then-Chairman Joe Biden to help secure the 
nomination of Ruth Bader Ginsburg, a former counsel for the 
ACLU and now one of the most active members of Justices on the 
Supreme Court.
    I know you would join with me, Mr. Chairman, expressing our 
sympathy to Justice Ginsburg on the loss of her husband also.
    Chairman Leahy. A wonderful man.
    Senator Sessions. Professor Kagan left teaching law to 
spend 5 years at the center of politics, working in the Clinton 
White House, doing, as she described it, mostly policy work. 
Policy is quite different than intense legal work, for example, 
in the Office of Legal Counsel or some of the Divisions in the 
Department of Justice.
    During her White House years, the nominee was the central 
figure in the Clinton-Gore effort to restrict gun rights and as 
the dramatic 5-4 decision today in the McDonald case shows, the 
personal right of every American to own a gun hangs by a single 
vote on the Supreme Court.
    Ms. Kagan was also the point person for the Clinton 
administration's effort to block congressional restrictions on 
partial birth abortions. Indeed, documents show that she was 
perhaps the key person who convinced President Clinton to 
change his mind from supporting to opposing legislation that 
would have banned that procedure.
    During her time as Dean at Harvard, Ms. Kagan reversed 
Harvard's existing policy and kicked the military out of the 
recruiting office in violation of Federal law. Her actions 
punished the military and demeaned our soldiers as they were 
courageously fighting for our country in two wars overseas.
    As someone who feels the burden of sending such young men 
and women into harm's way and who spent much time drafting and 
redrafting legislation to ensure military recruiters were 
treated fairly on campus, I cannot take this issue lightly.
    Dean Kagan also joined with three other law school deans to 
write a letter in opposition to Senator Graham's legislation 
establishing procedures for determining who was an enemy 
combatant in the war on terror. She compared this legislation, 
which passed 84-14, to the fundamentally lawless actions of a 
dictatorship.
    Most recently, the nominee served as Solicitor General for 
little over a year, but her short tenure there has not been 
without controversy. In her first appellate argument, Ms. Kagan 
told the Court that the speech and press guarantees in the 
First Amendment would allow the Federal Government to ban the 
publication of pamphlets discussing political issues before an 
election. I would remind my colleagues that the American 
Revolution was in no small part spurred by just such political 
pamphlets: Thomas Paine's ``Common Sense.'' To suggest that the 
Government now has the power to suppress that kind of speech is 
breathtaking.
    Also as Solicitor General, Ms. Kagan approved the filing of 
a brief to the Supreme Court asking that it strike down 
provisions of the Legal Arizona Workers Act, which suspends or 
revokes business licenses of corporations which knowingly hire 
illegal immigrants, even though Federal law expressly prohibits 
such hiring. She did this even after the liberal Ninth Circuit 
had upheld the law. This is an important legal issue that the 
Court will resolve during the next term.
    And despite promises to this Committee that she would 
vigorously defend the Congress' ``Don't ask, don't tell'' 
policy for the military if it were challenged in court, the 
actions she has taken as Solicitor General do appear to have 
deliberately and unnecessarily placed that law in jeopardy.
    Importantly, throughout her career, Ms. Kagan has 
associated herself with well-known activist judges who have 
used their power to redefine the meaning of words of our 
Constitution and laws in ways that, not surprisingly, have the 
result of advancing that judge's preferred social policies and 
agendas.
    She clerked for Judge Mikva and Justice Marshall, each 
well-known activists, and she has called Israeli judge Aharon 
Barak, who has been described as the ``most activist judge in 
the world,'' as her hero. These judges really do not deny their 
activist ideas. They advocate it, and they openly criticize the 
idea that a judge is merely a neutral umpire.
    Few would dispute this record tells us much about the 
nominee. In many respects, Ms. Kagan's career has been consumed 
more by politics than law, and this does worry many Americans. 
In the wake of one of the largest expansions of Government 
power in history, many Americans are worried about Washington's 
disregard for limits on its power. Americans know that our 
exceptional Constitution was written to ensure that our Federal 
Government is one of limited separated powers and part of a 
Federal-State system with individual rights reserved to our 
free people.
    But we have watched as the President and Congress have 
purchased ownership shares in banks, nationalized car 
companies, seized control of the student loan industry, taken 
over large sectors of our Nation's health care system, and 
burdened generations of Americans with crippling debt.
    So this all sounds a lot like the progressive philosophy 
which became fashionable among elite intellectuals a century 
ago and which is now seeing a revival. They saw the 
Constitution as an outdated impediment to their expansive 
vision for a new social and political order in America. Even 
today, President Obama advocates a judicial philosophy that 
calls on judges to base their decisions on empathy and their 
broader vision of what America should be. He suggests that his 
nominee shares those views.
    Our legal system does not allow such an approach. Americans 
want a judge that will be a check on Government overreach, not 
a rubber stamp. No individual nominated by a President of 
either party should be confirmed as a judge if he or she does 
not understand that the judge's role is to fairly settle 
disputes of law and not set policy for the Nation.
    Broad affirmations of fidelity to law during these hearings 
will not settle the question. One's record also speaks loudly. 
Indeed, it is easy to pledge fidelity to law when you believe 
you can change its meaning later if you become a judge. Ms. 
Kagan has called previous confirmation hearings ``vapid and 
hollow''--some probably have been--and has argued that nominees 
for a lifetime position owe a greater degree of candor and 
openness to the Committee. I agree with that. I agree that 
candor is needed and look forward to this good exchange this 
week, Mr. Chairman.
    Chairman Leahy. Thank you very much.
    We will go next to Senator Kohl, and then we will go to 
Senator Hatch. Senator Kohl.

 STATEMENT OF HON. HERB KOHL, A U.S. SENATOR FROM THE STATE OF 
                           WISCONSIN

    Senator Kohl. Thank you, Mr. Chairman, and good afternoon 
to you, Solicitor General Kagan. We welcome you to the 
Committee and extend our congratulations to you on your 
nomination. If confirmed, you will bring to the Court an 
impeccable resume and a formidable track record of 
accomplishments, and you will bring a new perspective to the 
bench, as each new Justice does, based on your life and on your 
career.
    You come before us today not from the halls of our judicial 
monastery, but with the insight of a scholar and a teacher and 
the political policy and legal acumen of a White House aide, 
law school dean, and the Solicitor General of the United 
States.
    Your encounters with the law have formed the lens through 
which you will judge the dilemmas of our democracy and the 
constitutional questions we face. At this hearing, we will try 
to learn from you how that lens will affect your judgment on 
the Court.
    Should you be confirmed, your decisions will impact our 
pocketbooks and our livelihoods and determine the scope of our 
most cherished rights, from the right to privacy to the right 
to equal education, employment, and pay, from the right to an 
attorney and a fair trial for the accused, to the right to 
speak and worship freely.
    In these difficult economic times in the wake of what could 
be the worst environmental crisis in our Nation's history, and 
as we continue our fight against terrorism, we are mindful of 
the great influence you will have on the issues and cases that 
wash up on the shores of our courts.
    The questions you will confront are not only concepts for 
lawyers and courts to contemplate. Behind the volumes of legal 
briefs are real people with real problems, and beyond the 
individual parties to each case will stand the rest of us who 
will feel either the brunt or the bounty of your decisions.
    We hear the overused platitudes from every nominee that he 
or she will apply the facts to the law and faithfully follow 
the Constitution. But deciding Supreme Court cases is not 
merely a mechanical application of the law. There will be few 
easy decisions, and many cases will be decided by narrow 
margins. You will not merely be calling balls and strikes. If 
that was the case, then Supreme Court nominations and our 
hearings would not be the high-stakes events that they are 
today.
    But all of these things do matter, and we care deeply about 
the Supreme Court precisely because it rules on only the 
toughest and the most challenging problems.
    We can all agree that your decisions will impact society 
long after you have left the Court. Justice Oliver Wendell 
Holmes put it plainly, and I quote: ``Presidents come and go, 
but the Supreme Court goes on forever.''
    That is why it is so important for us to know who you are, 
Solicitor General Kagan, what is in your heart, and what is in 
your mind. We can gain some insight from your work for 
President Clinton and Justice Thurgood Marshall. But we have 
less evidence about what sort of judge you will be than on any 
nominee in recent memory. Your judicial philosophy is almost 
invisible to us. We do not have a right to know in advance how 
you will decide cases, but we do have a right to understand 
your judicial philosophy and what you think about fundamental 
issues that will come before the Court.
    As you said in your own critique of these hearings in 1995, 
it is ``an embarrassment that Senators do not insist that a 
nominee reveal what kind of Justice she would make by 
disclosing her views on important legal issues.''
    The President has his vetting process, and we in the Senate 
have our vetting process, but this hearing is the only 
opportunity for the American public to learn who you are. They 
deserve to learn about your views and motivations before you 
don the black robes of a Justice for a lifetime appointment.
    For each Supreme Court nomination in which I have 
participated, I have put each nominee to a test of judicial 
excellence, and your nomination will be no different. First, 
the nominee must demonstrate that she has the competence, 
character, integrity, and temperament necessary for any judge 
or Justice, and that she will have an open mind, not only 
willing to hear cases with an open mind, but also willing to 
decide cases with an open mind.
    I also look for a nominee to have the sense of values and 
judicial philosophy that are within the mainstream of legal 
thought in our country. No one, including the President, has 
the right to require ideological purity from a member of the 
Supreme Court. But we do have a right to require that the 
nominee accept both the basic principles of the Constitution 
and its core values implanted in society.
    And, finally, we want a nominee with a sense of compassion. 
Compassion does not mean bias or lack of impartiality. It is 
meant to remind us that the law is more than a mental exercise 
or an intellectual feast. It is about the real problems that 
will share the fabric of American life for generations to come.
    The great dilemmas of our democracy invite us to engage in 
a robust debate, and my hope is that we can engage in a 
substantive and candid dialog that will benefit not only those 
here on the Committee, but also, and most importantly, the 
public. The American people want and deserve a process that is 
more than what you characterized as a ``vapid and hollow 
charade'' and which so frustrated you just 15 years ago.
    In a tribute to Justice Marshall, you said that the stories 
he told to his law clerks served the purpose of reminding you 
that, ``Behind the law there are stories, stories of people's 
lives as shaped by the law, and stories of people's lives as 
might be changed by the law.''
    So we are gathered here today to hear your stories, how 
your life has been shaped by the law, and how our lives might 
be changed by the law when you are on the Court.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you very much, Senator Kohl.
    Senator Hatch.

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE 
                            OF UTAH

    Senator Hatch. Well, thank you, Mr. Chairman. Today is a 
sad day with the passing of our great colleague Senator Robert 
Byrd this morning and the death yesterday of Justice Ruth Bader 
Ginsburg's husband, Marty.
    Senator Byrd was a towering presence in the Senate for 
decades, and his love for the Constitution and for this 
legislative body was well known. He stood up for it all the 
time, and, of course, I had nothing but great respect for him. 
I remember in the early years when I led the fight against 
labor law reform, he was not very happy with me. And, frankly, 
I was not very happy with him, either. But in the end, I gained 
such tremendous respect for him and love, even though we 
differed on so many issues. He was a towering figure.
    The Ginsburgs celebrated their 56th wedding anniversary 
just a few days ago--not as long as the 68 years that Senator 
and Erma Byrd were married before her death, but a good long 
time, nonetheless. Cancer was a part of the Ginsburgs' 
individual lives and their life together for many years, and I 
know that each of them was a source of strength and stability 
to the other. The Ginsburgs have been a model of dignity and 
grace, and Justice Ginsburg and her children will be in my 
prayers.
    Now I want to welcome you back to the Judiciary Committee, 
General Kagan. Something tells me this is likely to be your 
last confirmation hearing.
    As America's founders designed it, the Senate's role of 
advice and consent is a check on the President's power to 
appoint. Fulfilling that role requires us to evaluate a 
nominee's qualifications for the particular position for which 
she has been nominated. Qualifications for judicial service 
include both legal experience and judicial philosophy.
    While legal experience summarizes the past, judicial 
philosophy describes how a nominee will approach judging in the 
future. My primary goal in this confirmation process is to get 
the best picture I can of General Kagan's judicial philosophy, 
primarily from her record, but also from this hearing as well.
    I have to make my decision whether to support or not 
support her nomination on the basis of evidence, not on blind 
faith. I have never considered the lack of judicial experience 
to be an automatic disqualifier for a judicial nominee. 
Approximately one-third of the 111 men and women who have 
served on the Supreme Court have had no previous judicial 
experience. What they did have, however, was an average of more 
than 20 years of private practice experience. In other words, 
Supreme Court nominees have had experience behind the bench as 
a judge, before the bench as a lawyer, or both. Ms. Kagan 
worked for 2 years in a law firm, the rest of her career in 
academia and politics.
    As the Washington Post described it, she brings experience 
``in the political circus that often defines Washington.''
    One of my Democratic colleagues on this Committee recently 
said that Ms. Kagan's strongest qualifications for the Supreme 
Court are her experience in crafting policy and her ability to 
build consensus. The value of such experience depends on 
whether you view the Supreme Court as a political circus or 
view its role as crafting policy.
    I believe that the most important qualification for 
judicial service is the nominee's judicial philosophy or her 
approach to interpreting and applying the law to decide cases. 
This is what judges do. But different judges do it in radically 
different ways. Our liberty, however, requires limits on 
Government, and that includes limits on judges.
    Chief Justice Marshall wrote in Marbury v. Madison that 
America's Founders intended the Constitution to govern the 
judicial branch as much as the legislative branch. 
Unfortunately, many judges today do not see it that way but 
believe that they may themselves govern the Constitution. The 
Senate and the American people need to know which kind of 
Justice General Kagan will be.
    Will the Constitution control her or will she try to 
control the Constitution? Does she believe that the words of 
the Constitution and statutes can be separated from their 
meaning so that the people and their elected representatives 
put words on the page but judges may determine what those words 
actually mean? Does she believe it is valid for judges to mold 
and steer the law to achieve certain social ends? Does she 
believe that a judge's personal experiences and values may be 
the most important element in her decisions? Does she believe 
that clerks exist to protect certain interests? Does she 
believe that judges may control the Constitution by changing 
its meaning? Does she believe that judges may change the 
meaning of statutes in order to meet what judges believe are 
new social objectives?
    These are just some of the questions that go to the heart 
of a nominee's judicial philosophy.
    I want to clarify as best I can what kind of a Justice 
General Kagan would be. To do that, I have to examine her 
entire record. As in previous hearings, there will no doubt be 
some tension during this hearing between what Senators want to 
know and what General Kagan is willing to tell us. Unlike 
previous hearings, however, Ms. Kagan has already outlined 
quite clearly what she believes a Supreme Court nominee should 
be willing to talk about at a hearing like this. Without this 
information, Ms. Kagan has written, the Senate ``becomes 
incapable of either properly evaluating nominees or 
appropriately educating the public.''
    Now, Ms. Kagan identified the critical inquiry about a 
Supreme Court nominee as ``the votes she would cast, the 
perspective she would add, and the direction in which she would 
move the institution. But the bottom line issue in the 
appointments process must concern the kinds of judicial 
decisions that will serve the country and correlatively the 
effect the nominee will have on the Court's decisions. If that 
is to results-oriented, so be it.''
    Now, Ms. Kagan outlined that approach which she argued is 
necessary for Supreme Court confirmation hearings to be more 
than the acuity and farce in a law journal article when she was 
a tenured law professor after working for this Committee on a 
Supreme Court confirmation. I believe you will hear a lot about 
your remarks in the past and your law review article in the 
past.
    She was not a student writing a blog about some 
hypothetical topic that she knew nothing about. I am confident 
that Senators will give Ms. Kagan many opportunities in the 
next few days to provide the information and insight that she 
has argued is critical for the Senate properly to make a 
decision on her confirmation.
    This is a critical decision, and it is about more than just 
one person. Our decision will affect liberty itself. George 
Washington said this in his Farewell Address: ``The basis of 
our political systems is the right of the people to make and 
alter their constitutions of Government. But the Constitution 
which at any time exists, till changed by an explicit and 
authentic act of the whole people, is sacredly obligatory upon 
all.''
    The people's right to make and alter the Constitution means 
nothing if the people choose the Constitution's words. Judges 
choose what those words mean. A judge with that much power 
would effectively take an oath to support and defend not the 
Constitution but herself.
    Now, I hope that this hearing will help me further 
understand what kind of a Justice Ms. Kagan would be, and I 
wish you well and look forward to the rest of these hearings.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you very much, Senator Hatch.
    Senator Feinstein.

  STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE 
                      STATE OF CALIFORNIA

    Senator Feinstein. Thank you very much, Mr. Chairman. I 
would like to begin with a word about Senator Byrd.
    I have served on the Appropriations Committee for 16 out of 
my 18 years in the Senate. Senator Byrd was the Chairman. He 
was tough, he was strong, he cared. Many times the Constitution 
popped out of his vest pocket. He certainly was, I think in 
anyone's book, a titan in the Senate, and he has left an 
indelible imprint. He will be missed.
    But today, it is welcome, Solicitor General Elena Kagan. 
Over the past few weeks there has been a drift net out trying 
to find some disqualifying fact or factor in your record. But, 
to date, I do not believe any such factor has been found. I 
believe that you are eminently confirmable.
    Your experience, I think, makes you a very strong nominee 
for the Court. You are the first woman Solicitor General of the 
United States--as such, the top litigator before the Supreme 
Court. And the Solicitor General is the only Federal official 
that is required in statute to be ``learned in the law.''
    Of the 45 people who have held the job, five have gone on 
to the Supreme Court. You have filed hundreds of briefs before 
the Court. You have successfully defended the law, and you have 
the support of nearly every living Solicitor General.
    You were the first woman dean of Harvard Law School. There, 
you developed a reputation as a leader who brought all sides to 
the table. You were legal advisor to President Clinton, served 
as Associate White House Counsel, Deputy Director of the 
Domestic Policy Council, and you covered some tough issues: 
tobacco reform, importation of rapid-fire assault weapons, 
campaign finance, women's health, abortion. What comes across 
in reviewing your writings is that you are a valuable advisor, 
smart, reasonable, highly respected, principled.
    You also served as a special counsel to this Committee 
during the Ginsburg confirmation hearings.
    The biggest criticism I have seen out there is that you 
have never been a judge. Frankly, I find this refreshing. The 
Roberts Court is the first Supreme Court in history to be 
comprised entirely of former Federal court of appeals judges. 
Throughout the history of the Court, over one-third of the 
Justices, 38 out of 111, have had no prior judicial experience. 
They included Chief Justice William Rehnquist, who was a law 
clerk for the Supreme Court, worked for a law firm, and then 
was Assistant Attorney General in the Nixon administration. 
They include Chief Justice Earl Warren, who returned from World 
War II to prosecute cases as an Assistant District Attorney 
before becoming California's Attorney General and Governor. And 
they include Chief Justice Harlan Fiske Stone, who was dean of 
Columbia Law School and then Attorney General. These Justices 
also had no prior judicial experience, but their backgrounds 
proved valuable nonetheless.
    Judicial interpretation, I believe, is not a mechanical 
endeavor, like completing a math equation. The most powerful 
computer cannot tell us whether the President's powers as 
Commander in Chief allow him to exceed the bounds of the 
Foreign Intelligence Surveillance Act and other statutes in 
wartime. Nor can they tell us whether Congressional laws 
barring guns from the grounds of schools or implementing new 
health insurance requirements are within Congress' Article I 
powers. Nor can they tell us what the 14th Amendment's promise 
of equal protection under the law means for students in our 
public schools. These questions are among our Nation's most 
important, and it takes more than an umpire to find their 
answers.
    In recent years, there has been a radical change on the 
Supreme Court which was on display even this morning. This 
morning, I was extremely dismayed to learn of the Court's 
decision in McDonald v. City of Chicago, holding that common 
sense State and local gun laws across the country now will be 
subject to Federal lawsuits. This decision and its predecessor, 
District of Columbia v. Heller, have essentially disregarded 
the precedent of 71 years embedded in United States v. Miller, 
a 1939 case. I find that shocking as a former mayor.
    I believe the proliferation of guns have made this Nation 
less safe, not more safe. We now have more guns than people in 
this country. They are sold everywhere, on street corners, in 
gun shows, with no restraint whatsoever, any type of weapon. 
They fall into the hands of juveniles, criminals, and the 
mentally ill virtually every day of the year. And the Supreme 
Court has thrown aside seven decades of precedent to exacerbate 
this situation.
    From the documents that have been revealed thus far, I am 
encouraged that Solicitor Kagan holds stare decisis in high 
regard. We will see. She has shown determination to uphold the 
law even when she may personally disagree with it.
    For example, at Harvard, she expressed strong disagreement 
with ``Don't Ask, Don't Tell.'' But she allowed military 
recruitment to continue and, in fact, the number of recruits 
from the law school did not diminish. I believe it increased. 
And as Solicitor General, she defended the policy's 
constitutionality, arguing in a brief that the Court should 
defer to Congress's judgment.
    During the Clinton administration, she advised the Bureau 
of Alcohol, Tobacco, and Firearms that it could not ban 
importation of pre-1994 large-capacity ammunition feeding 
devices by Executive order. The Bureau of Alcohol, Tobacco, and 
Firearms and I both wanted to ban these imports, but she argued 
successfully that the law simply did not give the Bureau that 
authority.
    Elena Kagan has written that the confirmation process 
should be a substantive one, that the kind of inquiry that 
would contribute most to the understanding and evaluation of a 
nomination would include discussion first of the nominee's 
broad judicial philosophy and, second, of her views on 
particular constitutional issues. I agree, and I look forward 
to a meaningful discussion this week.
    By all accounts, this nomination has been smooth so far. 
One newspaper even called it a ``snooze fest.'' If it is, it is 
because Elena Kagan is unquestionably qualified. Over 170,000 
documents have unmasked her as an even-handed legal scholar 
with a sterling reputation. Each new set of documents makes it 
clearer that her views fall within the moderate mainstream of 
legal thinking in this country. So at this stage, I see no 
impediment to confirmation. I hope the week ends the same way. 
I look forward to proceeding.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you very much, Senator Feinstein. I 
also want to thank Senators. They have been keeping under the 
time limit, which means we are ahead of schedule.
    Senator Grassley.

 STATEMENT OF HON CHARLES E. GRASSLEY, A U.S. SENATOR FROM THE 
                         STATE OF IOWA

    Senator Grassley. Thank you, Mr. Chairman.
    General Kagan, congratulations on your nomination. It is an 
extremely important appointment, obviously a real honor. I also 
welcome your family and friends. They are obviously proud of 
your nomination, and I am glad that they are here to support 
you.
    I am committed to ensuring that this process is fair and 
respectful but also thorough. The Constitution tasks our Senate 
with conducting a comprehensive review of the nominee's record 
and qualifications. You have been nominated to a lifetime 
position. Consequently the Senate has a tremendous 
responsibility to ensure that you truly understand the proper 
role of a Justice and the Supreme Court in our system of 
Government. We want to ensure that, if confirmed, you will be 
true to the Constitution and the laws as written.
    We had a nice meeting in my office. You have an 
accomplished academic and policy background. You have excelled 
at Princeton University and Harvard Law School. You were an 
Oxford scholar. You clerked on the D.C. Circuit and the Supreme 
Court. You were a law professor at the University of Chicago 
Law School as well as Dean of Harvard Law School. You were a 
lawyer here on the Judiciary Committee and then with President 
Clinton's administration. You are now United States Solicitor 
General. Nobody can question such accomplishments.
    What is lacking from your background is any experience on 
any court or much experience as a practicing lawyer. We do not 
have any substantive evidence to demonstrate your ability to 
transition from being a legal scholar or political operative to 
a fair and impartial jurist. We will need to acquire that 
evidence through your writings and the positions you have taken 
over the years as well as your testimony. Answering our 
questions in a candid and forthright manner hopefully will fill 
that void.
    We know you cannot commit to ruling in a certain way or for 
a particular party. Our goal is to see if you will exercise 
judicial restraint. We want to know that you will exercise the 
preeminent responsibilities of a Justice by adhering to the law 
and not public opinion.
    Policy choices need to be reserved for those of us elected 
to the legislative branch of Government. It is our duty to 
confirm a nominee who has superior intellectual abilities but, 
more importantly, it is our duty to confirm a nominee who will 
not come with a results-oriented philosophy or an agenda to 
impose his or her personal politics and preferences from the 
bench. It is our duty to confirm a Supreme Court nominee who 
will faithfully interpret the law and Constitution without 
personal bias.
    The fact that you have not been a judge is not dispositive, 
but because of lack of judging experience, it is even more 
critical that we are persuaded that you have the proper 
judicial philosophy and will practice it. We must be convinced 
that you have the most important qualification of a Justice. 
That qualification is the ability to set aside your personal 
feelings and political beliefs so that you can administer equal 
justice for all in a dispassionate way.
    Your relatively thin record clearly shows that you have 
been a political lawyer. Your papers from the Clinton Library 
have been described as having--and these are not my words--``a 
flair for the political'' and ``a flair for political 
tactics.'' You have been described as having, another quote, 
``finely tuned political antennae'' and ``a political heart.''
    You were involved in a number of high-profile, hot-button 
issues during the Clinton Administration, including gun rights, 
welfare reform, abortion, and the Whitewater and Paula Jones 
controversies. A review of the material produced by the Clinton 
Library shows that you forcefully promoted liberal positions 
and offered analyses and recommendations that often were more 
political than legal. Not only that, your Marshall memos 
indicate a liberal and seemingly outcome-based approach to your 
legal analysis.
    You have admitted that your upbringing steeped you in 
deeply held liberal principles. We should know whether, as you 
have said, you have ``retained them fairly intact to this 
date.''
    A judge needs to be an independent arbiter, not an advocate 
for a political agenda. This point is absolutely crucial for 
Justices since the Supreme Court is not as constrained to 
follow precedent to the same extent as judges of lower courts. 
You will have the final say on the law.
    You have been a prominent member of President Obama's team. 
In nominating you to be an Associate Justice, President Obama 
clearly believes that you measured up to his judicial empathy 
standard, a judge's ability, in other words, to empathize with 
certain groups over others. Indeed, President Obama said that 
you credited your hero, Justice Marshall, with reminding you 
``that behind the law there are stories, stories of people's 
lives as shaped by the law, stories of people's lives as might 
be changed by the law.''
    This empathy standard has been soundly rejected because it 
endorses the application of personal politics and preferences 
when judges decide cases. It encourages judges to usurp the 
functions held by the executive and legislative branches of 
Government. A judge or Justice must unequivocally reject that 
standard. It does not comport with the proper role of a judge 
or an appropriate judicial method. We all know that is not what 
our great American tradition envisioned for the role of the 
judiciary.
    I will be asking you about your judicial philosophy, 
whether you will allow biases and personal preferences to 
dictate your judicial method. You once wrote that it ``is not 
necessarily wrong or invalid'' for judges to ``try to mold or 
steer the law in order to promote certain ethical values and 
achieve certain social ends.'' You have also praised jurists 
who believe that the role of a judge is to ``do what you think 
is right and let the law catch up,'' and, again another quote, 
``bridge the gap between law and society.'' To me, this kind of 
judicial philosophy endorses judicial activism, not judicial 
restraint and hopefully what you have said before is not how 
you would be in regard to these quotes when you get to the 
Supreme Court.
    I yield back the balance of my time but ask permission to 
put a longer statement in the record.
    Senator Kohl. [Presiding.] Without objection.
    [The prepared statement of Senator Grassley appears as a 
submission for the record.]
    Senator Kohl. Senator Feingold.

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE 
                       STATE OF WISCONSIN

    Senator Feingold. Thank you, Mr. Chairman. Ms. Kagan, 
welcome and congratulations on your nomination. Let me thank 
you in advance for the long hours you will spend with us this 
week.
    Like others, let me start, of course, by offering my 
condolences to Justice Ruth Bader Ginsburg in the passing of 
her husband, Martin. Our thoughts and prayers are with her and 
her family today.
    And, of course, we join the people of West Virginia in 
mourning the loss of their Senator and our colleague, Robert 
Byrd. Senator Byrd cared deeply about the Senate and the 
Constitution, and we cannot help but think of him as we begin 
this process today.
    I want to thank Chairman Leahy and compliment him and his 
staff on your efforts to make this confirmation process so open 
and transparent. Nearly 200,000 pages of documents about the 
nominee have been made publicly available online. I am 
particularly pleased that you joined with the Ranking Member to 
request a complete and timely search of Presidential archives 
so that as much information about the nominee's past work as 
possible could be reviewed by the Committee and the public 
before these hearings. And I think that former President 
Clinton deserves our thanks as well for his agreement to 
release to the Committee a significant amount of material that 
he was entitled to block under the Presidential Records Act.
    The Supreme Court plays a unique and central role in the 
life of our Nation. Those who sit as Justices have 
extraordinary power over some of the most important and most 
basic aspects of the lives of American citizens. The nine men 
and women who sit on the court have enormous responsibilities, 
and those of us on this Committee have a significant 
responsibility as well.
    Ms. Kagan, I hope you will be forthcoming in your answers 
so we can have the open and honest discussion of issues that 
the country deserves.
    In 2005, when we began our confirmation hearings for Chief 
Justice Roberts, the Court had not seen a new member for 11 
years. Now we are beginning the fourth Supreme Court 
confirmation hearing in the last 5 years, and today for the 
first time we begin a hearing on a nomination that could result 
in three women sitting on the Supreme Court at one time. We 
have come a long way from the days when Justice Ginsburg was 
turned down for a prestigious clerkship because she was a woman 
and where Justice O'Connor graduated from Stanford Law School 
but no law firm would hire her as a lawyer, instead offering 
her a position as a secretary.
    I hope this is just the beginning. Women are increasingly 
outnumbering men on law school campuses across the Nation, and 
I am pleased that the Court is beginning to reflect that fact.
    I also hope that we will continue to see greater diversity 
on the Court in other ways, including representation from 
Midwestern and Western States. It is important that all 
Americans feel the Court represents their life experiences and 
their values, and I think one of the best ways to accomplish 
that is by selecting candidates for this position who reflect 
the full diversity of this great country. The Court that is now 
taking shape and that Elena Kagan will join if she is confirmed 
will shape the country for many years to come. It will address 
the most crucial legal issues affecting our National security 
and the freedoms of our citizens. It will decide what limits 
there are on how the people's elected representatives can solve 
the difficult economic and social problems that the country 
faces. It will confront questions of race that are as old as 
our Nation and as new as the changing demographics of the 21st 
century.
    Because these questions that will come before the Court in 
the next few decades are so weighty, it is unfortunate that a 
growing segment of Americans seem to have lost trust in the 
Court and its Justices. Supreme Court cases by their nature can 
divide the country. Important cases with far-reaching 
consequences are often decided now by a 5-4 vote. So it is 
absolutely essential that the public have confidence that those 
decisions are not made on the basis of an ideological or 
partisan political agenda. The fairness, objectivity, and good 
faith of Justices should be beyond question.
    So as Chairman Leahy suggested, when a decision like the 
one handed down earlier this year by a 5-4 vote in the Citizens 
United case uproots longstanding precedents and undermines our 
democratic system, the public's confidence in the Court cannot 
help but be shaken. I was very disappointed in that decision 
and in the Court for reaching out to change the landscape of 
election law in a drastic and wholly unnecessary way. By acting 
in such an extreme and unjustified manner, the Court badly 
damaged its own integrity. By elevating the rights of 
corporations over the rights of the people, the Court damaged 
our democracy.
    Ms. Kagan, if you are confirmed, I hope you will keep this 
in mind. I hope you will tread carefully and consider the 
reputation of the Court as a whole when evaluating whether to 
overturn longstanding precedent in ways that will have such a 
dramatic impact on our political system. You have developed a 
reputation as someone who can reach out to those with whom you 
may not agree and work together, and I think that is a skill 
that will prove to be very useful and valuable if you are 
confirmed.
    You also have an impressive education, you have worked at 
the highest levels of Government, and you have taught and 
written about the law. I have no doubt that you understand our 
system of Government and the roles of the three branches. But, 
most importantly, I hope you appreciate the impact that the law 
has on the lives of all Americans.
    So it is my hope that your diverse experiences, your 
thoughtfulness and openness, and your talent for consensus 
building will allow you to see the long-term dangers to the 
Court and to the country of a decision like Citizens United and 
enable you, if confirmed, to convince your colleagues to avoid 
making similar mistakes in the future.
    I also hope that you will have the wisdom and the courage 
that the Justice you have been nominated to replace, Justice 
John Paul Stevens, showed time and time again in drawing the 
line against an executive branch that sought powers that 
endangered the individual rights and freedoms that our 
Constitution guarantees.
    Ms. Kagan, of course, judging is not easy. It is not just a 
matter of calling balls and strikes, because judges, and 
particularly Justices in the Supreme Court, are called upon to 
apply constitutional values that, as Justice Souter said 
recently, may well exist in tension with each other, not in 
harmony. In these hearings, you will have the opportunity to 
show the American people that you have the right combination of 
qualities and qualifications to make a good Justice. I wish you 
well in that task, and I look forward to the conversation you 
will have not only with me but with my colleagues and with the 
country.
    Thank you, Mr. Chairman.
    Chairman Leahy. [Presiding.] Thank you very much, Senator 
Feingold.
    Senator Kyl.

STATEMENT OR OF HON. JON KYL, A U.S. SENATOR FROM THE STATE OF 
                            ARIZONA

    Senator Kyl. Thank you, Mr. Chairman. Congratulations, 
Solicitor General Kagan, and welcome to the Committee.
    I would first note an agreement that I have with Senator 
Feingold. We do need more diversity on the Court. I note it has 
been 3 years now since an Arizonan has been on the Supreme 
Court.
    Chairman Leahy. I only confirm them. I do not pick them.
    [Laughter.]
    Senator Kyl. Mr. Chairman, 1 year ago, we sat in this same 
room to consider the nomination of then-Judge Sotomayor. 
Although I could not ultimately support her nomination, I was 
pleased that she testified that the role of a judge is to put 
aside any biases or prejudices and to impartially apply the law 
to resolve disputes between parties.
    Judge Sotomayor explicitly rejected the empathy standard 
that had been espoused by President Obama, the standard where 
legal process alone is deemed insufficient to decide the so-
called hard cases, the standard where the critical ingredient 
is supplied by what is in the judge's heart.
    Perhaps because his first nominee failed to defend the 
judicial philosophy that he was promoting, the President has 
repackaged it. Now he says that judges should have a keen 
understanding of how the law affects the daily lives of the 
American people and know that in a democracy powerful interests 
must not be allowed to drown out the voices of ordinary 
citizens. The clear implication is that, at least in some kind 
of cases, judges should abandon impartiality and instead engage 
in results-oriented judging. Indeed, his own press secretary 
has confirmed the President's results-oriented view.
    Exactly what kinds of results is the President looking for 
from his judges? Perhaps he wants judges who will ignore the 
serious constitutional questions surrounding some of his 
domestic legislation. Or maybe he wants judges who will use the 
bench to advance progressive goals that have been stalled in 
the political process.
    Whatever the President's motivation, his view of the role 
of judges is wrong. Judges are to apply the law impartially, 
not take on social causes or cut down powerful interests. While 
they may disagree with legislative solutions to problems, it is 
not their prerogative to fix inequities.
    Part of our task is to determine whether Ms. Kagan shares 
President Obama's results-oriented philosophy of judging or is 
instead committed to impartiality. This may be a more difficult 
task with Ms. Kagan than with other Supreme Court nominees who 
have come before the Committee, most of whom have had 
substantial judicial records to evaluate.
    For instance, Judge Sotomayor issued 15,000 opinions in a 
decade and a half of district and circuit court service. Ms. 
Kagan has never served on any bench.
    Indeed, except for a brief 2-year stint in private practice 
and 1 year as Solicitor General, Ms. Kagan's entire career has 
been divided between academia and policy positions in the 
Clinton administration. Given this lack of experience 
practicing law, I was surprised that the American Bar 
Association awarded her a Well Qualified rating since the ABA's 
own criteria for a judicial nominee call for, among other 
things, at least 12 years' experience in the practice of law, 
and they mean actual practice of law, like former Justices 
Rehnquist and Powell.
    Not only is Ms. Kagan's background unusual for a Supreme 
Court nominee, it is not clear how it demonstrates that she 
has, in the President's words, a keen understanding of how the 
law affects the daily lives of the American people. One recent 
article noted that Ms. Kagan's experience draws from a world 
whose signposts are distant from most Americans: Manhattan's 
Upper West Side, Princeton University, Harvard Law School, and 
the upper reaches of the Democratic legal establishment.
    Her career in academia tells us relative little about her 
views on legal issues. In 14 years as a professor, she 
published only nine articles, two of which were book reviews, 
and her tenure in the academy was marred, in my view, by her 
decision to punish the military and would-be recruits for a 
policy, ``Don't ask, don't tell,'' and the Solomon amendment 
that was enacted by Members of Congress and signed into law by 
President Clinton.
    Despite this relatively thin paper trail, there are warning 
signs that she may be exactly the results oriented Justice 
President Obama is looking for. Consider, for example, the 
judges that Ms. Kagan says she most admires. Ms. Kagan has 
called Israeli Supreme Court Justice Aharon Barak her 
``judicial hero.'' Justice Barak is widely acknowledged as 
someone who took an activist approach to judging. One respected 
judge, Richard Posner, described Barak's tenure on the Israeli 
Supreme Court as ``creating a degree of judicial power 
undreamed of even by our most aggressive Supreme Court 
Justices.''
    Ms. Kagan identified Thurgood Marshall as another of her 
legal heroes. Justice Marshall is a historic figure in many 
respects, and it is not surprising that as one of his clerks, 
she held him in the highest regard. Justice Marshall's judicial 
philosophy, however, is not what I would consider to be 
mainstream. As he once explained, ``You do what you think is 
right and let the law catch up.'' He might be the epitome of a 
results-oriented judge. And, again, Ms. Kagan appears to 
enthusiastically embrace Justice Marshall's judicial 
philosophy, calling it, among other things, ``a thing of 
glory.''
    In 2003, Ms. Kagan wrote a tribute to Justice Marshall in 
which she said that, in his view, ``It was the role of the 
courts in interpreting the Constitution to protect the people 
who went unprotected by every other organ of Government, to 
safeguard the interests of people who had no other champion. 
The Court existed primarily to fulfill this mission.''
    And later, when she was working in the Clinton 
administration, she encouraged a colleague working on a speech 
about Justice Marshall to emphasize his ``unshakable 
determination to protect the underdog, the people whom no one 
else will protect.'' To me, this sounds a lot like what 
President Obama is saying now.
    And Ms. Kagan's work as a Supreme Court clerk for Justice 
Marshall contains evidence that she shares his vision of the 
Constitution. In many of her memos to Justice Marshall, Ms. 
Kagan made recommendations concerning the disposition of cases 
which appear to be based largely on her own liberal policy 
preferences.
    For example, despite her view that one lower court's 
decision was ludicrous and lacked a legal basis, Ms. Kagan 
nonetheless recommended that Justice Marshall vote to deny 
further review because to do otherwise, she wrote, ``would 
likely create some very bad law'' on abortion and/or prisoners' 
rights.
    This kind of naked political judgment appears frequently 
throughout Ms. Kagan's work as a judicial clerk. In another 
case, Ms. Kagan said that the Supreme Court should take the 
case because it is even possible that the good guys might win 
on this issue. I am concerned about her characterization of one 
party as ``the good guys.'' Too often it sounds to me like Ms. 
Kagan shares the view of President Obama and Justice Marshall 
that the Supreme Court exists to advance the agenda of certain 
classes of litigants.
    In another case, Ms. Kagan wrote that there is no good 
reason to place an exclusionary rule before this Court which 
will doubtlessly only do something horrible with it. And in 
another memo laced with political considerations, Ms. Kagan 
wrote, ``I see no reason to let this Court get a crack at this 
question.'' She was even more explicit in a handwritten note, 
after reviewing the Government's response in another case, 
saying, ``I continue to believe that the facts did not support 
the arrest, but I cannot see anything good coming out of review 
of this case by this Court.''
    Ms. Kagan explains these recommendations as primarily 
channeling Justice Marshall, but the question is whether she 
really has any major differences with him and whether she sees 
anything wrong with taking the same approach. I see no evidence 
that that is the case.
    In addition my general concern about whether Ms. Kagan 
could decide cases impartially and without bias for or against 
certain parties, a surprising number of things in her 
relatively thin body of work do raise substantive concerns 
about various issues such as federalism, free speech, national 
security, and others.
    To take a last example, I am deeply troubled by her 
decision as Solicitor General to urge the Supreme Court to 
review and strike down an Arizona law designed to prevent 
employers from hiring illegal aliens. The Ninth Circuit 
unanimously upheld the law and the lower court decision because 
Federal immigration law explicitly allows States to sanction 
employers through their business licensing regimes. I think 
there are legitimate questions about whether the brief 
authorized by Ms. Kagan, which flies in the face of the plain 
language of the law and urges the Supreme Court to strike these 
enforcement provisions down, was motivated by political 
influence at the White House and within the Department of 
Justice. And I am convinced that without the urging of her 
office, the Court would not have granted cert in the case 
today.
    Mr. Chairman, in conclusion, there is ample reason for 
members of this Committee to carefully scrutinize this nominee, 
scrutiny which she invited in her now famous Chicago Law Review 
article in 1995. Because she has no judicial record on which we 
can determine whether she is a results-oriented nominee or 
would approach each case as a neutral arbiter, I believe the 
burden is on the nominee to show that her record demonstrates 
that she can be a fair and impartial Justice rather than one 
who would have an outcome-based approach.
    I look forward to her testimony.
    Chairman Leahy. Senator Specter.

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE 
                        OF PENNSYLVANIA

    Senator Specter. Thank you, Mr. Chairman.
    Solicitor General Kagan, I join my colleagues in welcoming 
you here this morning. With the passing of Senator Byrd earlier 
today, I was reminded of our hearings for Judge Bork and 
Senator Byrd's participation in those hearings and a candid 
shot of him taken one Saturday when we had an hour Saturday 
morning session with Judge Bork, and his picture appeared on 
the front page of the Sunday New York Times, and he will be 
with us in these hearings and much of our thinking on the 
interpretation of the Constitution.
    This hearing presents a unique opportunity perhaps to have 
questions answered which have not been answered in the past. 
The article which you authored for the Chicago Law Review back 
in 1995 is openly and specifically critical of Justice Ginsburg 
and Justice Breyer who, as you characterize it, 
``stonewalled.'' You criticized the Judiciary Committee, and I 
think properly so, as ``lacking seriousness and substance'' in 
our approach to the hearings. And you used the phrase that the 
confirmation process ``takes on an air of vacuity and farce.'' 
You quote Senator Biden, then-Chairman, and myself expressing 
concerns that 1 day the Committee would ``rear up on its hind 
legs and reject a nominee who refused to answer questions for 
that reason alone.'' So this is a unique hearing in that 
respect.
    The Court, regrettably, I think, has become an ideological 
battleground, and the activism is on both sides. As a 
prosecutor in the 1960s, I watched the Constitution change 
virtually daily: search and seizure map, 1961; right to 
counsel, Gideon v. Wainwright, 1963; Miranda 1966. Activism.
    We have the Supreme Court now having adopted a test of 
determining constitutionality since 1996 on congruence and 
proportionality, an impossible standard except as Justice 
Scalia described it as a ``flabby test which enables judicial 
legislation.'' We have had nominees who sat where you sit not 
too long ago who said they would not ``jolt the system,'' 
``modesty,'' and then a grave jolt to the system; assure this 
panel that the legislative finding of facts is not a judicial 
function, and then turn that on its head in Citizens United on 
a record that is a hundred thousand pages long and finding that 
there is no basis for a 100-year-old precedent, which was 
overturned. Certainly a jolt to the system.
    When Senator Biden was considering the nomination of Chief 
Justice Roberts, he said that he was qualified, but would vote 
against him because of, as then-Senator Obama said, 
``overarching political philosophy.''
    Well, the Presidents make their selections based on 
ideology. I think that is a blunt fact of life, and the 
deference that I had considered in my earlier days in the 
Senate, I have come to the conclusion that Senators have the 
same standing to make a determination on ideology.
    It has become accepted that there should not be 
transgression into the area of judicial independence on how a 
case would be decided. There is an interesting case captioned 
Minnesota v. White, a Justice Scalia opinion in 2002, which 
struck down a requirement of the Minnesota Bar Association 
which prohibited judges from saying how they would decide 
cases. The Supreme Court said that was an infringement on First 
Amendment rights of freedom of speech.
    Now, that does not say that a judge should answer the 
question, but it does say that a bar association rule 
prohibiting answering the question is invalid, which leaves the 
judge, at least so far as that standard is concerned, with the 
latitude to answer the question. So that even on the ultimate 
question of how a case will be decided, that in your law review 
article you come very close to that when you talk about 
answering substantive legal issues, really right on the line of 
how you would decide a case.
    But if we are precluded from asking how decisions would 
be--what decision would be made on grounds of judicial 
independence and the precedent on that, I do think it is fair 
for us to ask whether the Supreme Court would take a case. The 
Congress has the authority to direct the Supreme Court on cases 
which must be heard--flag burning case, McCain-Feingold, and 
many, many others--so that the Court's discretion is limited 
there if there is a Congressional direction.
    I think it is fair from that proposition to ask nominees 
whether they would take cases. I have spoken at length on the 
floor about what I consider the inappropriate decline in the 
number of cases considered. A hundred years ago, a little more, 
in 1886, the Supreme Court decided 146 cases, 146 opinions. A 
little more than 20 years ago, 1987, 146 opinions. Last year, 
last term, 78 arguments, 75 opinions. A lot of circuit splits, 
important cases, are not taken up by the Supreme Court. The 
Supreme Court declined to hear the conflict which, arguably, is 
the most serious clash between Congress's Article I powers 
under the Foreign Intelligence Surveillance Act, which sets the 
exclusive means for getting a warrant, listening to a wiretap, 
probable cause, and the President's warrantless wiretap program 
justified under Article II. A Detroit Federal judge said it was 
unconstitutional. The Sixth Circuit ducked it, with a standing 
decision 2-1, with admittedly the dissenting opinion much 
stronger, application for cert denied. And this is something I 
discussed with you in our meeting, for which I thank you. I 
sent you a series of letters on issues which I intend to ask 
you about, and that was one of them.
    I was concerned about your decisions as Solicitor General 
on the case involved the Holocaust victims suing an Italian 
insurance company, and the Second Circuit bows to the executive 
position, saying, well, that ought to be decided between Italy 
and the United States on how that is to be handled. I think 
that is wrong, but at least the Supreme Court ought to decide 
it.
    I am not going to ask you how you would decide the case, 
but would you consider it. A case involving the survivors of 
victims of 9/11 has not been heard. A petition for cert from 
the Second Circuit, the Second Circuit said, well, the 
sovereign immunities case does not apply because Saudi Arabia 
has not been declared a terrorist state. That has really got 
nothing to do with the Act, congressional intent. Torts are not 
covered by sovereign immunity. You disagreed with the Second 
Circuit but said the acts occurred outside of the country, a 
distinction that I do not understand if the consequence is that 
the Towers and 3,000 Americans are killed. Certainly the 
Sovereign Immunities Act ought to make Saudi Arabia subject to 
suit. But I would not ask you how you would decide the case, 
but if you would take it up.
    Another issue which will not be resolved today, and perhaps 
never, is how to see to it that the nominees who make 
statements here on congressional power and on stare decisis 
follow up on it. And maybe the closest approach is the idea of 
televising. In our meeting you said you would favor televising 
the Court. Not exactly the same, but Brandeis talked about 
sunlight and publicity being the best disinfectant. Well, it is 
not a disinfectant we are looking for here, but to hold 
nominees who answer questions here to follow through when they 
are on the Court.
    Thank you.
    Chairman Leahy. Thank you very much.
    Senator Graham.

STATEMENT OF HON. LINDSEY GRAHAM, A U.S. SENATOR FROM THE STATE 
                       OF SOUTH CAROLINA

    Senator Graham. Thank you, Mr. Chairman.
    Congratulations. I think it will be a good couple of days. 
I hope you somewhat enjoy it, and I think you will.
    Like everyone else, I would like to acknowledge the passing 
of Senator Byrd. He was a worthy ally and a very good opponent 
when it came to the Senate. My association with Senator Byrd, 
during the Gang of 14, I learned a lot about the Constitution 
from him, and as all of our colleagues will remember, just a 
few years ago we had a real conflict in the Senate about 
filibustering judicial nominees. And it was Senator Byrd and a 
few other Senators who came up with the extraordinary 
circumstances test that would say that filibusters should only 
be used in extraordinary circumstances because elections have 
consequences. And Senator Byrd was one of the chief authors of 
the language defining what an extraordinary circumstance was. 
So I just want to acknowledge his passing. It is going to be a 
loss to the Senate.
    And the thing that we all need to remember about Senator 
Byrd is that all of us are choosing to judge him by his 
complete career, and history will judge him by his complete 
career, not one moment in time, and that is probably a good 
example for all of us to follow when it comes to each other and 
to nominees.
    Now, you are the best example I can think of why hearings 
should be probative and meaningful. You come with no judicial 
record, but you are not the first person to come before the 
Committee without having been a judge. But it does, I think, 
require us and you to provide us a little insight as to what 
kind of judge you would be. You have had very little private 
practice, 1 year as Solicitor General, and a lot of my 
colleagues on this side have talked about some of the positions 
you have taken that I think are a bit disturbing, but I would 
like to acknowledge some of the things you have done as 
Solicitor General that were, I thought, very good.
    You opposed applying habeas rights to Bagram detainees. You 
supported the idea that a terrorist suspect could be charged 
with material support of terrorism under the statute, and that 
was consistent with the law of wars history. So there are 
things you have done as Solicitor General that I think merit 
praise, and I will certainly, from my point of view, give you a 
chance to discuss those.
    As Dean of Harvard Law School, you did two things: you 
hired some conservatives, which is a good thing; and you 
opposed military recruitment, which I thought was 
inappropriate, but we will have a discussion about what all 
that really does mean. It is a good example of what you bring 
to this hearing, a little of this and a little of that.
    Now, what do we know? We know you are very smart. You have 
a strong academic background. You have bipartisan support. The 
letter from Miguel Estrada is a humbling letter, and I am sure 
it will be mentioned throughout the hearings, but it says a lot 
about him. And it says a lot about you that he would write that 
letter. Ken Starr and Ted Olson have suggested to the Committee 
that you are a qualified nominee.
    There is no doubt in my mind that you are a liberal person. 
That applies to most of the people on the other side, and I 
respect them and I respect you. I am a conservative person, and 
you would expect a conservative President to nominate a 
conservative person who did not work in the Clinton 
administration.
    So the fact that you have embraced liberal causes and you 
have grown up in a liberal household is something we need to 
talk about, but that is just America. It is OK to be liberal. 
It is OK to be conservative. But when it comes time to be a 
judge, you have got to make sure you understand the limits that 
that position places on any agenda, liberal or conservative.
    Your judicial hero is an interesting guy. You are going to 
have a lot of explaining to do to me about why you picked Judge 
Barak as your hero, because when I read his writings, it is a 
bit disturbing about his view of what a judge is supposed to do 
for society as a whole. But I am sure you will have good 
answers, and I look forward to that discussion.
    On the war on terror, you could, in my view, if confirmed, 
provide the Court will some real-world experience about what 
this country is facing, about how the law needs to be drafted 
and crafted in such a way as to recognize the difference 
between fighting crime and fighting a war. So you, in my view, 
have a potential teaching opportunity, even though you have 
never been a judge, because you have represented this country 
as Solicitor General at a time of war.
    The one thing I can say without certainty is I do not 
expect your nomination to change the balance of power. After 
this hearing is over, I hope the American people will 
understand that elections do matter. What did I expect from 
President Obama? Just about what I am getting. And there are a 
lot of people who are surprised. Well, you should not have been 
if you were listening.
    So I look forward to trying to better understand how you 
will be able to take political activism, association with 
liberal causes, and park it when it comes time to be a judge. 
That to me is your challenge. I think most people would 
consider you qualified because you have done a lot in your life 
worthy of praise. But it will be incumbent upon you to convince 
me and others, particularly your fellow citizens, that whatever 
activities you have engaged in politically and whatever advice 
you have given to President Clinton or Justice Marshall, that 
you understand that you will be your own person, that you will 
be standing in different shoes where it will be your decision 
to make, not trying to channel what they thought. And if at the 
end of the day you think more like Justice Marshall than 
Justice Rehnquist, so be it. The question is: Can you make sure 
that you are not channeling your political agenda, your 
political leanings when it comes time to render decisions?
    At the end of the day, I think the qualification test will 
be met. Whether or not activism can be parked is up to you. And 
I look at this confirmation process as a way to recognize that 
elections have consequences and the Senate has an independent 
obligation on behalf of the people of this country to put you 
under scrutiny, firm and fair, respectful and sometimes 
contentious.
    Good luck. Be as candid as possible, and it is OK to 
disagree with us up here.
    Thank you.
    Chairman Leahy. Thank you, Senator.
    Next, Senator Schumer.

 STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE 
                       STATE OF NEW YORK

    Senator Schumer. Thank you, Mr. Chairman. And I, too, want 
to note the passing of our friend and leader Senator Byrd. 
Senator Byrd's fierce devotion to the Constitution hovers over 
this hearing, and nothing could be more appropriate on the sad 
day of his death than holding this hearing where the first 
branch of Government gives advice and consent to the second 
branch of Government as we fill a position on the third.
    Welcome, Madam Solicitor General. There is only so much we 
can do to elaborate on your qualifications. Solicitor General 
Kagan's achievements as well as her record are by now well 
known to this Committee, and by the end of the week, they will 
be well known to the American people. Frankly, there are not 
many blanks left to fill in. Given how forthcoming General 
Kagan has already been, I would think that we could finish this 
hearing in one round of questioning.
    Now, I am and I have always been a strong advocate for 
asking nominees searching questions, and I expect nominees to 
answer. I also believe that my colleagues on the other side of 
the dais have a right and a duty to ask tough, probative 
questions. But I also believe that the quality of answers 
matters more than the quantity, and we can expect very high 
quality from you, General Kagan.
    Over the last several weeks, we on the Judiciary Committee 
have had the opportunity to get to know General Kagan, and she 
has been very forthcoming in every way. I am confident that the 
American people will learn, as we have, that you represent the 
best this country has to offer.
    As we begin these hearings, I have three points I would 
like to make.
    First, a California hearing, no matter who is sitting in 
the chair over there, has the potential to be like eating 
spaghetti with a spoon. It is a lot of work, and it is hard to 
feel satisfied at the end.
    I believe that this will not be our experience this week 
with this nominee. General Kagan has set herself a high bar for 
providing material to this Committee already. During her 
previous confirmation hearing, for example, she explained 
clearly and plainly her views about national security and 
terrorism, her views about the Second Amendment, as well as her 
views about these very confirmation hearings, which, in the 
past, she herself has criticized for being exercises.
    In her questionnaire for this committee, she explained in 
unprecedented detail her work in the Solicitor General's 
office, at Harvard Law School, and in the Clinton 
Administration.
    She has also provided unprecedented supporting 
documentation. She gave us, from her time as Solicitor General, 
nearly 150 briefs by her office; from her time at Harvard, all 
of her previous academic work, and all of the letters, e-mails, 
and press releases that went out during her tenure as dean; 
from her work in the Clinton Administration, over 170,000 pages 
of documents, including 80,000 pages of e-mails, which is more 
than twice the material received in connection with the 
nominations of Chief Justice Roberts and Justice Alito.
    In fact, we even have this nominee's senior thesis, her 
graduate thesis, nearly 70 articles she authored for the Daily 
Princetonian as a college student, almost 200 speeches, and 
another 200 interviews.
    The only thing, as far as I can tell, that we do not have 
is her kindergarten report card. But I respectfully submit to 
my colleagues that if they cannot thoroughly evaluate General 
Kagan on the record we have, there is no record nor nominee who 
could satisfy them.
    So we already have a clear idea of her record and what this 
hearing will be like, which brings me to my second point, which 
is why this hearing is so crucially important.
    We need a Justice who can create moderate majorities on 
this immoderate Supreme Court. I am going to be blunt about 
this. We have a highly fractured Court, with an often rarified 
way of approaching the law. The rightward shift of the Court 
under Chief Justice Roberts is palpable.
    In decision after decision, special interests are winning 
out over ordinary citizens. In decision after decision, this 
Court bends the law to suit an ideology. Judicial activism now 
has a new guise--judicial activism to pull the country to the 
right.
    These rulings have real world consequences, make no mistake 
about it. They affect the remedies of women, who, for years, 
earned less money than men in the same job. They undermine the 
rules that Congress and agencies can put in place to keep the 
water that we drink and the air that we breathe safe for our 
children, and they rent the very fabric of our democratic 
system.
    I am concerned that we will soon find ourselves back in the 
Lochner era of activist judging. In 1905, squarely in the age 
of the robber barons, a very right-wing majority of Justices 
held, in the Lochner case, that the people of New York State 
could not pass laws that limited the work week to 60 hours. The 
Court held this because business had the freedom under the 
Constitution to contract however they saw fit, even if the 
public safety was at stake.
    I fear that the recent decision in Citizens United is a 
step backwards toward Lochner, backwards to the era of 
conservative Supreme Court activism that most egregiously 
undermined even the most basic regulation of safety and of 
welfare. In allowing corporations to spend unlimited sums to 
influence elections, Citizens United showed just how much the 
current conservative bloc on the Court, in its zeal to bend the 
Constitution to an ideology, has lost sight of the practical 
consequences of some of its decisions.
    As Justice Stevens wrote in his dissent, ``The Court's 
opinion is a rejection of the common sense of the American 
people.''
    It does not end with Citizens United. There is case after 
case after case which we could demonstrate and in these cases, 
it is the American people who continue to bear the brunt of 
these types of rulings.
    But there is hope, which brings me to my third point. 
Solicitor General Kagan brings both moderation and pragmatism 
to a Court that is sorely in need of both. Her down-to-earth 
views and her exceptional leadership skills mean this: Elena 
Kagan has great potential to moderate a Court that is veering 
out of the mainstream and bringing it back to the 21st century.
    She is the right person at the right time. We have seen 
several examples of Elena Kagan's moderation and pragmatism 
already. The one that I like best is a practical one, of 
course.
    While serving as the first dean of Harvard Law School, a 
difficult enough task by itself, she was able to repair a 
deeply and ideologically divided faculty. Because of Dean 
Kagan's acumen and great good sense, she broke a hiring logjam, 
often between the right and the left, and Harvard was able to 
hire 43 new professors during her tenure, including notable 
conservatives like Jack Goldsmith and John Manning.
    She diversified the faculty, advanced academic scholarship, 
improved the quality of the school, and improved the tone of 
the school, as well.
    Dean Kagan routinely received warm receptions and large 
ovations from the Federalist Society, the conservative legal 
association that gave rise to many of the judicial nominees of 
President Bush. They knew her views. They knew that her views 
were largely different from theirs, as Senator Graham has 
mentioned. But they respected her pragmatism and her 
moderation.
    Time after time after time, pragmatism and moderation have 
worked together to hold Elena's views of the law and the world. 
She managed to find a middle ground in the military recruiting 
controversy, a situation that has already been discussed.
    But let us note that during Dean Kagan's tenure, military 
recruiting at the law school remained steady or improved, while 
she, at the same time, voiced her disagreement with an opinion. 
Her actions are not the actions of an ideologue.
    So let me say one final word about General Kagan's 
voluminous record as she worked as a lawyer for President 
Clinton and then as a policy adviser. All of a sudden, these 
are being held as strikes against her. Nothing about her 
previous jobs should be viewed as undermining her moderate 
credentials or calling her ability to understand the role of 
Supreme Court justice.
    It is a fact that a Presidential nominee with a political 
job on a resume is far from unprecedented. Chief Justice 
Rehnquist served in President Nixon's Office of Legal Counsel. 
Justice Thomas served in a Republican Department of Education 
and the EEOC before his appointment. And like General Kagan, 38 
justices never served as judges before serving on the High 
Court, fully a third of all justices who have served.
    What General Kagan does bring to the table is unprecedented 
practical experience. At Harvard, she ran the equivalent of a 
large business, a budget of $160 million, 500 employees. She 
had a master interrelations with thousands of students and 
hundreds of faculty, all of whom came from diverse backgrounds 
and viewpoints.
    General Kagan is simply a terrific antidote to the lack of 
practical, real word understanding of the Court. She is 
brilliant, she is thoughtful, and I think she is straight out 
of central casting for this job.
    I look forward to hearing more from you, Solicitor, this 
week.
    Chairman Leahy. Thank you very much.
    Senator Cornyn.

STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE STATE OF 
                             TEXAS

    Senator Cornyn. Thank you, Mr. Chairman.
    Solicitor General Kagan, welcome to these hearings and 
congratulations to you and your family and friends.
    An e-mail with a quote came across my in-box this morning 
that I thought of as I heard the statements being made on both 
sides here: ``Liberty is not a cruise ship full of pampered 
passengers. Liberty is a man of war and we're all the crew.''
    I do not know why I thought of that, given the nature of 
these hearing so far, but, of course, we will be talking about 
the different roles we each play on that crew.
    In the last 5 years, this committee has met four times to 
consider the nomination of a new Supreme Court Justice. Given 
our recent hearings, I think it is vital to recall the core 
principles that should guide the committee in carrying out our 
responsibilities.
    There are two visions of the role of judges in America, I 
believe, including the Supreme Court. I will call them the 
traditional vision and the activist vision. We have heard those 
terms thrown around a lot. I will tell you what I mean by them 
and we will see if you and I can agree.
    In the traditional vision, the courts enforce a written 
Constitution. They enforce the constitutional guarantees that 
the Framers wrote into the text of the Constitution.
    Under this traditional view, a court, including the Supreme 
Court, has a limited, some have called it a modest role, albeit 
very important. No court of law under this view has the 
authority to invent new rights just because the judge happens 
to think that it is a good idea.
    That is important, because the powers to make new laws are 
reserved to the people, not to judges, not even the Justices of 
the Supreme Court of the United States.
    When the Supreme Court creates new rights, the Justices, in 
effect, take away the power of the people to govern themselves 
through their elected representatives. That, in my view, is not 
how our democracy is supposed to work.
    Of course, that does not mean that the meaning of the 
Constitution remains fixed. Indeed, the Framers thought of this 
in Article 5. The Constitution tells us there are two different 
ways to change the Constitution. First, Congress can propose 
amendments that all the states can approve or a requisite 
number can approve; second, the Congress can call for a 
constitutional convention to propose amendments; either way, 
preserving the ultimate power of the people to control their 
Constitution, not the courts.
    That, as I said, is what I would call the traditional view.
    We can contrast that traditional vision with the activist 
vision. Under the activist vision, the Supreme Court is free to 
change the Constitution when they see a problem they wish to 
solve.
    According to this view, the Constitution is sometimes 
called a living document. It is a living document because the 
judges change it when they want to, without requiring the 
consent of the people.
    This activist vision takes the power of the people to make 
the law and change the law and gives that power to a judiciary 
that is unelected and that imposes its will on the rest of us.
    This stands in stark contrast to the Founders' vision, 
perhaps best expressed in Federalist No. 78, that the judiciary 
would be the, quote, ``least dangerous branch,'' closed quote, 
to the political rights in the Constitution, because, in 
Hamilton's memorable words, ``The judiciary has no influence 
over either the sword or the purse, no direction either of the 
strength or of the wealth of the society, and can take no 
active resolution whatever. It may truly be said to have 
neither force nor will, but merely judgment.''
    Unfortunately, some members of the Supreme Court today seem 
to embrace the activist role. We saw it just last month in the 
case of Graham v. Florida, a 5-4 decision overturning the 
judgment of the Florida legislature that allowed the 
possibility of a life sentence for robberies.
    Three justices, Justices Stevens, Ginsberg, and Sotomayor, 
explained that their interpretation of the Constitution could 
change year-to-year and, quote, ``will never stop,'' closed 
quote, changing.
    Sometimes, judicial activists create new rights and 
sometimes they actively undermine the Constitution in the 
process.
    For example, we can see the different approaches to 
constitutional interpretation just today in the Court's 
decision in McDonald v. City of Chicago. The five justices who 
voted to apply the Second Amendment to the Chicago gun 
ordinance relied on history and precedent. On the other hand, 
the four justices who voted not to apply the Second Amendment 
instead relied heavily on public policy arguments, the kind 
that you would find debated in the halls of Congress.
    The question raised by every Supreme Court nomination, I 
believe, is whether the nominee believes in the traditional 
role or the activist vision. Does a nominee believe that the 
Court should make policy like Congress, even though they are 
not accountable to the people for their actions via elections?
    Will the nominee enforce the written Constitution and not 
invent new rights, or will the nominee see it as his or her job 
to change the Constitution to align it with their policy 
preferences?
    Solicitor General Kagan, as you have heard and as you know, 
because you have never been a judge, what we know about you 
begins and largely ends with your impressive resume, although 
one that does not have judicial experience.
    We know that you were a law clerk for two Federal judges, a 
significant professional accomplishment in and of itself, and 
we know you served in the Clinton Administration as an adviser 
on many hot-button political issues, including abortion, gun 
rights, and affirmative action.
    We also know, as has already been discussed to some extent, 
that you have talked about your judicial heroes. One, of 
course, is Justice Thurgood Marshall, for whom you served as a 
law clerk. Thurgood Marshall was, of course, a famous lawyer 
for, among other things, having won the landmark civil rights 
case, Brown v. Board of Education.
    But it is his judicial philosophy that concerns me, and 
this has already been mentioned. It is clear that he considered 
himself a judicial activist and was unapologetic about it. As 
we have already heard, he described his judicial philosophy as, 
quote, ``Do what you think is right and let the law catch up,'' 
closed quote.
    Solicitor General Kagan, we know the President has the 
right to nominate anyone he chooses. It is noteworthy, however, 
that among his nominees, many of whom I have supported, 
President Obama has chosen several nominees that I cannot 
support because they are clearly outside the judicial 
mainstream.
    One pending nominee bent the rules to keep a confessed 
serial killer from the death penalty. Another pending nominee 
has argued that there is a constitutional right to welfare 
payments. A third nominee has argued that Federal judges should 
internationalize our law, matching it to views abroad.
    These are not mainstream positions and, in my view, they 
are disqualifying positions.
    One challenge of this hearing is that even nominees that 
have expressly rejected the activist view before this 
committee, let us call it a confirmation conversion, have 
changed their tune after confirmation. Last year, Justice 
Sotomayor came before the Committee and pledged allegiance to 
the traditional view.
    She testified that judges cannot rely on what is in their 
heart. They do not determine the law. The job of a judge is to 
apply the law.
    But in her first term on the Court, just finished today, 
Justice Sotomayor has voted with the liberal bloc of the Court, 
which unabashedly embraces the activist vision, about 90 
percent of the time.
    You, as you recall, wrote in your 1995 law review article 
that the critical inquiry of judicial confirmation hearings 
must be the perspective the nominee would add and the direction 
in which she would move the institution.
    I agree with that. It is important in these hearings to 
find out whether you would move the Court in a traditional or 
an activist direction. The Constitution's protections, such as 
federalism, the Takings Clause, and the Second Amendment right 
to keep and bear arms, are just a few areas of obvious inquiry.
    Solicitor General, I must say that the burden is on you. I 
hope you can persuade us of the path you would take if you are 
confirmed to the Supreme Court.
    Again, I welcome you to the Senate and look forward to your 
testimony.
    Thank you.
    Chairman Leahy. Thank you very much.
    Senator Durbin.

STATEMENT OF HON. RICHARD DURBIN, A U.S. SENATOR FROM THE STATE 
                          OF ILLINOIS

    Senator Durbin. Thank you a lot, Mr. Chairman.
    General Kagan, welcome to you, your family, friends, and 
congratulations on your nomination.
    This is not your first hearing on a Supreme Court justice 
nominee. If my notes are correct, some 17 years ago, you were 
sitting at the Senate Judiciary Committee hearing on Ruth Bader 
Ginsburg's nomination to serve on the Supreme Court. Your 
capacity was as a staff attorney for the chairman of the 
committee, Joe Biden. So you have seen this exercise as a 
staffer and now in this revered position as the nominee of the 
President of the United States.
    At that hearing on Justice Ginsburg, my former colleague 
and friend, Paul Simon, set forth a standard for assessing 
Supreme Court nominations, which I have mentioned from time to 
time. He said to Justice Ginsburg, ``You face a much harsher 
judge . . . than this committee and that is the judgment of 
history. And that judgment is likely to revolve around the 
question: Did she restrict freedom or did she expand it? ''
    It is a simple calculus, it was for Senator Simon and it is 
for me, as well. I used the standard and asked the same 
question of Justices Alito, Roberts and Sotomayor.
    I think it is an important question. The nine men and women 
on the Supreme Court serve for a lifetime and they have a 
significant impact on the lives of every American.
    In our most celebrated Supreme Court decisions, we have 
seen an expansion of freedom, Brown v. Board of Education, 
Loving v. Virginia, Griswold v. Connecticut; and, in the most 
infamous decisions, restrictions on our freedom, Dred Scott, 
Plessy v. Ferguson, and Korematsu.
    Now, of course, we are in a new generation and a new time, 
and many questions are going to be raised. I think we have 
heard repeatedly from the other side of the aisle their loyalty 
to the concept of traditionalism, their opposition to judicial 
activism.
    I have two words for them: Citizens United. Earlier this 
year, in the Citizens United case, a 5-4 majority of the Court 
demanded to hear arguments on an issue that was not posed by 
the parties in the case, reversed its own precedents, ignored 
the will of Congress, and ruled that corporations and special 
interests can spend unlimited amounts of money to affect 
elections.
    This decision has the power to drown out the voices of 
average Americans. Justice John Paul Stevens wrote, in the 
Citizens United dissent, and I quote, ``Essentially, five 
Justices were unhappy with the limited nature of the case 
before us, so they changed the case to give themselves an 
opportunity to change the law.''
    If that is not judicial activism, what is? And it was 
espoused and sponsored by men who had stood before us under 
oath and swore they would never engage in judicial activism. 
That is the reality.
    There is something that has occurred today which has come 
as somewhat of a surprise to me. On at least three or four 
occasions, I have been disappointed by my Republican colleagues 
warning us that you just might follow in the tradition of 
Justice Thurgood Marshall. Well, Ms. Kagan, you deserve to be 
judged on your own merits, not on the basis of the strength and 
weakness or philosophy of any judge for whom you clerked.
    But before I leave this subject, let me say, for the 
record, America is a better nation because of the tenacity, 
integrity, and values of Thurgood Marshall. Some may dismiss 
Justice Marshall's pioneering work on civil rights as an 
example of empathy; that somehow, as a black man who had been a 
victim of discrimination, his feelings became part of his 
passionate life's work; and I say, thank God.
    The results which Justice Marshall dedicated his life to 
broke down barriers of racial discrimination that had haunted 
America for generations. For those who would disparage his life 
work on the Court and as a solicitor general and arguing before 
the Court, the record is pretty clear. Thurgood Marshall argued 
32 cases before the Supreme Court of the United States and won 
29 of them, earning more victories in the Supreme Court than 
almost any other individual.
    And I might also add, his most famous case, Brown v. Board 
of Education, if that is an activist mind at work, we should be 
grateful as a nation that he argued before this Supreme Court, 
based on discrimination in this society, and changed America 
for the better.
    And I know that my good friend, Judge Abner Mikva's name 
has been mentioned, as well, and I will just say, briefly, his 
political views are not veiled. They are well known, when he 
served in Congress and since.
    But my colleagues will find universal acclaim for Abner 
Mikva's record as a thoughtful, fair judge of the highest level 
of integrity and intelligence, and we share a high regard for 
this extraordinary American and the kind words you have had to 
say about him.
    There will be questions raised, as well, about modesty and 
humility in your role, if you are confirmed, and I believe you 
will be, to serve on the Supreme Court. I think a study of 
judicial ideology conducted recently by the seventh circuit 
Judge Richard Posner in my home State of Illinois is worth 
noting.
    Judge Posner, who is no liberal himself, ranked the 43 
justices who have served on the Supreme Court since 1937 from 
the most liberal to the most conservative. He concluded that 
four of the five most conservative justices since 1937 are on 
the Court at this moment: Clarence Thomas, Anthony Scalia, John 
Roberts, and Sam Alito.
    Our Supreme Court is badly in need of a person with your 
skill and your knowledge and your background, who can reach 
across the ideological aisle in pursuit of expanding our 
freedom.
    The Court needs a person who has an ability to build 
consensus and find common ground. Elena Kagan, you are such a 
person. As the Solicitor General of the United States, you have 
defended bipartisan laws like McCain-Feingold campaign finance, 
and you have definitely balanced competing interests within the 
Federal Government.
    As dean of the Harvard Law School, your efforts to reach 
out to conservative faculty and students are well documented. 
Professor Charles Fried, who served as President Reagan's 
Solicitor General and who now teaches at Harvard, praised you 
for ``recruiting excellent teachers from across the ideological 
spectrum'' and for your effort to ``make students with every 
point of view feel as if they were part of an intellectual and 
professional enterprise.''
    Professor Fried told the story about your speech to the 
Federalist Society, in which you opened by saying, ``I love the 
Federalist Society, but you are not my people.''
    Well, they took your statement out of context and made tee 
shirts that they wore around the campus, saying, ``I love the 
Federalist Society,'' with your name, Elena Kagan, below that. 
But it is an indication of a friendship and an effort to reach 
out even to those whose opinion you might not share.
    Earlier in your career, you worked as a counselor to 
President Clinton, working with Republicans to find bipartisan 
solutions on tough issues, like tobacco regulation, religious 
liberty, and community policing.
    In the 170,000 pages of documents from your White House 
service that were turned over to this committee, there is ample 
evidence of your efforts to bridge the gaps, the political gaps 
that haunt us in America.
    In closing, I would like to recognize the justice whom you 
would replace. Justice John Paul Stevens, a native of Chicago, 
a town I am honored to represent, has been one of the wisest 
and most accomplished jurists of our time. The third longest 
serving justice in the history of the United States, Justice 
Stevens' judicial philosophy may be hard to label, but his 
integrity is rock solid.
    A lifetime in the law and the courage to speak his mind 
made him a national treasure on our highest court.
    General Kagan, I believe that you can follow in that 
tradition. I look forward to your testimony.
    Thank you.
    Chairman Leahy. Senator Durbin, thank you very much.
    Senator Coburn, you are next.

STATEMENT OF HON. TOM COBURN, A U.S. SENATOR FROM THE STATE OF 
                            OKLAHOMA

    Senator Coburn. Thank you, Mr. Chairman.
    Welcome, and welcome to your family; look forward to our 
time together this week.
    The purpose of these hearings, for me, is not to examine or 
evaluate your professional qualifications. I think those are 
obvious. But for me, it is to determine whether or not you have 
an appropriate judicial philosophy.
    You and I discussed the fact that I gave a speech about a 
week ago on the floor that kind of lined up with what you said 
in 1995, the very fact that we have a relatively new 
phenomenon. For the vast majority of this country's history, we 
did not have these hearings.
    As a matter of fact, we looked at the record. We had 
individual meetings with nominees and they were voted on, and 
we did not have this dance back and forth, and, much as you 
described, the board hearings were what you thought were 
fantastic. And I think that the quote was, ``The Bork hearings 
were great. The Bork hearings were educational. The Bork 
hearings were the best thing that ever happened to 
constitutional democracy.''
    I am not sure I would go that far. But you and I are 
kindred spirits when it comes to whether or not the American 
people ought to know you and know what you think and know what 
you believe. And to do less than that, as far a this Committee 
is concerned, we have done a disservice.
    All the back-and-forth you have heard about activist, not 
activist, everything else, the fact is we know elections have 
consequences. There is a group in America, though, that 
believes in strict constructionism.
    We actually believe the founders had preeminent wisdom, 
that they were very rarely wrong, and that the modern idea that 
we can mold the Constitution to what we want it to be rather 
than what that vision was is something that is antithetical to 
a ton of people throughout this country.
    So I really am going to want to know a lot about specific 
issues and as we talk about it, the question I would ask you to 
ponder is, should the American people really know what you 
believe before we install you for lifetime tenure on the 
Supreme Court.
    What obligation do we have to make sure they know what your 
thinking is? Whether liberal or conservative, the fact is they 
ought to know Elena Kagan by the time of these hearings. And 
the only way they will know that--and you asked me for advice 
when we finished and my advice to you is to be absolutely, 
completely honest with this committee.
    And it is really not for the committee, because as our 
country is divided today, we are polarized. We are polarized 
regionally. We are polarized politically. What we have to have 
in whoever comes to the Court is a confidence in their heart 
that they are going to do what is best in the long term for 
this country based on what that document says.
    So my hope is that with your stellar academics and your 
stellar intellect, that your patriotism will be just as 
stellar; that, in fact, you will set a new course, to set a new 
precedent for this Committee so that, once again, the American 
people can find out what a justice is all about.
    It is obvious. This is my fourth Supreme Court hearing. It 
is obvious that what we have heard in the previous hearings are 
not predictive of the decisions of the nominees that came 
before the hearing, and that is schizophrenic.
    Why should we have this dance if we are not going to find 
out real answers about real issues, about what you really 
believe?
    So my hope is that you will really do something great for 
the Senate and great for the country and set a new standard, 
and where you really answer questions. We are not asking you to 
violate judicial canons, but really give us answers so the 
American people can rest assured that when you go on the Court, 
if you do, that they know Justice Kagan and they know what--and 
they believe what she said, because the real measure is not 
what you say here.
    The real measure of the Supreme Court justices that we put 
on there is whether or not they have gained or lost the 
confidence of the vast majority of Americans in this country.
    My hope is, if you are a justice, that the vast majority, 
not a small majority, but the vast majority will learn to trust 
your judgment as you embrace the Constitution.
    Mr. Chairman, I have a full statement I would like for the 
record, and I yield back.
    [The prepared statement of Senator Coburn appears as a 
submission for the record.]
    Chairman Leahy. Thank you. It will be placed in the record.
    I have just talked with Senator Sessions about this. What I 
will do is I want to yield to Senator Cardin. When Senator 
Cardin finishes his opening statement--no pressure on you here, 
Senator Cardin. When you finish your opening statement, we will 
take a 10-minute break.
    Senator Cardin.

STATEMENT OF HON. BEN CARDIN, A U.S. SENATOR FROM THE STATE OF 
                            MARYLAND

    Senator Cardin. Thank you, Chairman Leahy.
    Solicitor General Kagan, welcome back to the Judiciary 
Committee. Last year, I had the privilege of chairing your 
confirmation hearing for the position of Solicitor General. And 
while we had a spirited debate, I think we can agree we did not 
have quite as much media attention at last year's hearing.
    Why is that? As I prepared for this week's hearing, I have 
been thinking about the role of the Supreme Court and the 
Constitution in our lives. Many people may say, to paraphrase 
our Vice President, ``Why is this such a big deal? Why should I 
care? Does the Supreme Court really impact my life or my 
family? ''
    If you have children, if you work for a living, if you are 
a woman, if you vote, if you care about the air we breathe or 
the water we drink, you need to pay close attention to the 
confirmation hearing and the work of the Supreme Court.
    The Constitution has a very tangible impact on all our 
lives. It is the foundation of the rule of law that is supposed 
to protect us from the abuses of power, abuses of government, 
abuses of big business.
    We, the people of the United States, we, the people, in 
order to form a more perfect union, establish justice, ensure 
domestic tranquility, provide for the common defense, promote 
the general welfare, and secure the blessings of liberty to 
ourselves and our posterity, do ordain and establish this 
Constitution of the United States of America.
    The authors of the Constitution understood the timeless 
idea of justice was paramount. As we gather this week to 
consider your nomination to be the 112th person and only fourth 
woman to serve on the highest court, my goal is to ensure that 
you have a clear understanding of how profound an impact your 
future decisions may have on the lives of everyday Americans.
    Based on our conversations, I trust you will put the 
interests of the American people and justice for the American 
people first above popular opinion or politics.
    I also will do all I can to ensure that the American 
people, whether you are watching the hearing at home, at work 
or at school, gain a better understanding of how the Supreme 
Court, which has a duty to uphold the Constitution, really does 
affect your lives.
    Principles outlined in the Constitution are not some 
abstract historical theory. At its heart, our Constitution and 
the rule of law is about people--we, the people.
    Let us start with families and children. I, along with 
millions of American school children, were denied a full 
educational opportunity in our schools, because I was forced to 
attend segregated public schools.
    The Supreme Court, in Brown v. Board of Education, rejected 
the notion of separate but equal, and helped move our Nation 
forward toward a more perfect union.
    It was a young attorney from Baltimore, Thurgood Marshall, 
who argued that case before the Supreme Court. He later became 
the first African-American associate justice and throughout his 
distinguished career, he was aided by energized law clerks, 
including our nominee, Elena Kagan.
    If you believe that you have a right to fall in love and 
get married to whomever you wish, you are mostly correct, but 
only because the Supreme Court intervened on the side of the 
America people, when it ruled in Loving v. Virginia that 
interracial couples could marry.
    Indeed, prior to that decision, parents of the current 
President of the United States, some members of the U.S. 
Senate, and some Members of the Supreme Court, could not have 
married in some states.
    If you believe that what you do in your home, in your 
bedroom, is your business and no one else's, especially not 
government's, you are correct, but only because of the Supreme 
Court decisions like Griswold v. Connecticut and Lawrence v. 
Texas, which reinforced our individual rights to privacy, 
keeping government out of the private consensual activities of 
adults.
    The Supreme Court was on the side of the American people 
when it ruled in Roe v. Wade that the constitutional right to 
privacy exists. The Court ruling was not taking sides in the 
debate on abortion. It was stating that there are certain 
matters in which government should not interfere into the 
privacy of families.
    These landmark decisions and others continue the forward 
progression of protections for the American people, against the 
abuses of power, particularly by an overreaching government.
    Such was the case when the Supreme Court ruled in Gideon v. 
Wainwright that the constitutional right to counsel in a 
criminal proceeding was guaranteed, regardless of the wealth of 
the defendant.
    The Supreme Court gave the words ``equal justice under 
law'' real meaning. Perhaps this decision was to be expected, 
since the oath of office declared by every Federal judge makes 
it clear that he or she will administer justice without respect 
to persons and do equal right to the poor and to the rich.
    I believe that our next associate justice and the whole 
Supreme Court should be guided by legal precedent and the best 
traditions of the Supreme Court in advancing constitutional 
rights for individuals against abuses of power, whether by 
government or business, even as our world continues to change 
and evolve.
    Justice Thurgood Marshall said, in a 1987 speech, ``I do 
not believe the meaning of the Constitution was forever fixed 
at the Philadelphia Convention. To the contrary, the government 
they devised was defective from the start, requiring several 
amendments, a civil war, a momentous social transformation to 
attain the system of constitutional government and its respect 
for the individual freedoms and human rights we hold as 
fundamental today.''
    Some changes have not been for the better. I have been 
troubled by the increasing number of 5-4 decisions over the 
last 5 years in which a divided Supreme Court reversed decades 
of progress and precedent with rulings that side with powerful 
corporate interests rather than protecting individual rights.
    This trend was clearly shown in Citizens United, where the 
Supreme Court reversed precedent and overruled Congressional 
intent, giving corporate special interests even more power and 
influence in elections.
    In the Ledbetter case, the majority of the Supreme Court 
protected employers over workers in gender discrimination, 
again reversing the clear intent of Congress.
    In another 5-4 split decision, Gross v. FBL Financial, the 
Court made it easier for corporate America to discriminate 
against aging baby-boomer workers. If you work for a living, if 
you are a woman, if you are worried that corporations may buy a 
louder voice in elections than hardworking everyday Americans, 
you need to keep an eye on the judicial legislating being 
practiced by this Supreme Court.
    Are you a consumer? Do you buy products for your family? If 
so, the Supreme Court, in Leegin, yet another 5-4 split case, 
should be of concern to you. Here, the Court ignored 
longstanding precedent to protect big business to perpetuate 
price fixing. It was a ruling that put consumers at risk.
    Rapanos, another 5-4 decision, was a step backwards, this 
time for the environment, by reducing protection from wetlands 
under the Clean Water Act.
    If you are like the rest of us that wonder if BP will be 
held fully accountable for the economic and environmental 
devastation brought on by the ongoing oil spill in the Gulf of 
Mexico, you will be equally alarmed by the Supreme Court 
decision in Exxon v. Baker, which imposed limits on damages 
that can be recovered in environmental disasters.
    Time and time again, by the narrowest of margins, this 
activist Court has sided with big business over Main Street 
America, wiping away protections set in place by years of legal 
precedent and Congressional actions.
    As Justice Stevens stated in Citizens United, I know 
Senator Durbin quoted this, I want to get the line that comes 
afterwards, this is Justice Stevens, ``Essentially, five 
justices were unhappy with the limited nature of the case 
before us. So they changed the case to give themselves an 
opportunity to change the law. There were principled, narrow 
paths that a Court that was serious about judicial restraint 
could have taken.''
    I join him in wondering just how and why those who profess 
to oppose judicial activism have voiced their support for these 
Supreme Court decisions in which justices have overturned 
longstanding precedent and substituted their own legislative 
voices for Congress, blurring the line between the legislative 
and judicial branches of government.
    Justice Stevens followed in the best tradition of the 
Supreme Court in advancing individual constitutional rights. 
Like Justice Stevens, Elena Kagan is a known consensus-builder. 
She also is an unquestioned legal scholar, a proven leader, and 
a dedicated public servant.
    As someone who has worked my whole career to expand access 
to justice for all, I am particularly impressed by her record 
at Harvard of greatly expanding the number of law school 
clinics which provide essential pro bono work for individuals 
who otherwise could not afford legal representation.
    I welcome the American public to these hearings, as we open 
a window to the Supreme Court and shine a light on the critical 
role the Constitution and the rule of law plays in our lives.
    I come to these hearings not solely as a U.S. Senator, a 
legislator and a lawyer, but as a husband, father, and 
grandfather. Every ruling made by the Supreme Court that 
continues to uphold constitutional protections that keep my 
granddaughters safe and secure is a victory.
    Every Supreme Court ruling that opens the door to abuses of 
power of the government or big business by overturning 
longstanding precedent or reversing Congressional intent puts 
all of our children and grandchildren at greater risk.
    I will do all I can within my power to protect my family 
and every American family from such risks.
    Solicitor General Kagan, I welcome you to these 
confirmation hearings and I look forward to your testimony and 
responses to our questions.
    Chairman Leahy. Thank you very much, Senator.
    Solicitor General, you have been very patient sitting 
there, as has everybody else. Trust me, tomorrow, you will be 
given a chance to speak a great deal and you will later this 
afternoon with your opening statement.
    We will stand in recess for 10 minutes.
    [Recess 2:40 p.m. to 2:55 p.m.]
    Chairman Leahy. I welcome you all back. I should note that 
I do want to thank Senators. One, they have been very clear in 
stating their positions, whether I agree or disagree with the 
particular position. But everybody has worked hard to keep 
within the time agreement, and we are actually slightly ahead 
of schedule.
    Solicitor General Kagan, I must tell you, that is a rare 
moment in the U.S. Senate that we are ahead of schedule on 
anything. So I compliment you for doing that.
    I am going to yield to Senator Whitehouse.
    Senator Whitehouse. Mr. Chairman, does this mean that the 
remaining Senators get extra time?
    Chairman Leahy. No. He is trying, though. Nice try.

 STATEMENT OF HON. SHELDON WHITEHOUSE, A U.S. SENATOR FROM THE 
                     STATE OF RHODE ISLAND

    Senator Whitehouse. Mr. Chairman, I join my colleagues in 
condolence on this day of sorrow for the Senate and the Supreme 
Court alike, and, also, in their appreciation for the long and 
distinguished service of Mr. Justice Stevens.
    I welcome you, Solicitor General Kagan. You come before the 
Committee today with a remarkable record of achievement in the 
law. You have been a great student and scholar of the law, a 
skilled practitioner, and a dedicated public servant.
    I enjoyed meeting with you in my office and look forward to 
our discussions as the week proceeds.
    I think it is fair to say that some of my Republican 
colleagues are not so favorably disposed to your nomination. We 
have already heard a lot about their concerns.
    But let us not lose the big picture here. You are the 
Solicitor General of the United States, the lawyer for the 
United States before the Supreme Court, and the former dean of 
Harvard Law School, a school to which I suspect everyone of us 
on this Committee would be proud to have our children attend.
    Your nomination to the Supreme Court has to be among the 
least surprising ever made. And I do not want to take any 
suspense out of these proceedings, but things are looking good 
for your confirmation.
    So given this, I would like to talk for a few minutes about 
the institution to which you have been nominated, our Supreme 
Court.
    Alexander Hamilton explained, ``The judiciary has no 
influence over either the sword or the purse, no direction 
either of the strength or of the wealth of the society, and can 
take no active resolution whatever. It may be truly said to 
have neither force nor will, but merely judgment.''
    In other words, to fulfill its role in our constitutional 
system, the Supreme Court must act in a manner that 
demonstrates its adherence to the demands of the law, not 
merely amenability to political preferences.
    Important institutional traditions help the Court fulfill 
that duty. The Court can facilitate democratic processes, but 
to do so, it must respect the other institutions of government. 
It can bolster the rule of law, but only by exercising proper 
judicial restraint and respecting precedent.
    It can uphold our Constitution, but it must not decide 
constitutional questions unnecessarily. The Court can exercise 
discretion wisely, but to do so, it must balance competing 
constitutional values, not just apply a favored ideology. And 
the Court can bring true justice, but only if it approaches 
each case without predisposition or bias.
    Unfortunately, the conservative wing of the current Supreme 
Court has departed from those great institutional traditions. 
Precedents, whether of old or recent vintage, have been 
discarded at a startling rate. Statutes passed by Congress have 
been tossed aside with little hesitation, and constitutional 
questions of enormous import have been taken up hastily and 
needlessly.
    From the five-man conservative wing, we have witnessed the 
discovery of an individual right to bear arms in the Heller 
decision, a right that previously had gone unnoticed by the 
Court for 220 years, and, today, its extension to all our 
States and municipalities.
    We have seen the first prohibition on a woman's right to 
choose upheld, with no exception to protect the health of the 
mother. This Court even has chosen to inject itself into the 
day-to-day business of the lower courts, issuing an 
extraordinary ruling prohibiting the online streaming of the 
gay marriage trial in San Francisco. Each decision, 5-4.
    Even more striking is the record of corporate interests 
before this Supreme Court. The Ledbetter case allowed an 
employer to get away with wage discrimination, as long as it 
hid it successfully from the employee. The Gross case made it 
far harder for a victim of age discrimination to prove his or 
her case. The Iqbal case erected new pleading hurdles 
protecting defendants, likely corporations, from injured 
plaintiffs. Only last week, the Rent-A-Center decision 
concluded that an employee who challenges as unconscionable an 
arbitration demand must have that challenge decided by the 
arbitrator.
    And the Citizens United decision, yet another 5-4 decision, 
created a constitutional right for corporations to spend 
unlimited money in American elections, opening our democratic 
system to a massive new threat of corruption and corporate 
control.
    There is an unmistakable pattern. For all the talk of 
umpires and balls and strikes, at the Supreme Court, the strike 
zone for corporations gets better every day.
    This tide of decisions running against the accountability 
of big corporations degrades the core constitutional principle. 
The founding fathers provided, as an essential element of our 
balanced American system of government, the institution of the 
jury. The founders put the jury three times into the 
Constitution and the Bill of Rights. It is there for a reason, 
as the founding fathers knew. They were tough, smart 
politicians.
    When the forces of society are arrayed against you, when 
lobbyists have the legislature tied in knots, when the 
Governor's mansion is in the pockets of special interests, when 
the owners of the local paper have marshaled popular opinion 
against you, one last sanctuary still remains--the jury.
    Against that tide of corporate influence and wealth stands 
the jury box, its hard, square corners resolute. That was why 
de Tocqueville called the jury an institution of government and 
not ``and a mode of the sovereignty of the people.'' ``Not for 
Nothing'' was the chapter in which he discusses the jury, 
entitled ``On What Tempers the Tyranny of the Majority.''
    Now, powerful corporations do not like the jury. They do 
not like the fact that they, too, must stand before a group of 
ordinary citizens without the advantage of all the influence 
that money can buy.
    They would love a world in which their every contact with 
government was lubricated by corporate money. But to tamper 
with a jury is a crime. So they have long been on a campaign to 
smear the jury, the runaway jury, as their PR folks have 
coached them to call it.
    Sadly, the Supreme Court seems to be buying what 
corporations are selling. The Exxon v. Baker decision, which 
arose from the terrible Exxon Valdez spill, rejected a jury's 
award of $5 billion in punitive damages, just 1 year's profits 
for Exxon, and reduced the award by 90 percent. Anything more 
than the compensatory damage award, the Court reasoned, would 
make punitive damages too unpredictable for corporations.
    The judgment of the jury and the wisdom of the founding 
fathers were, for the Court, lesser values than providing 
corporations predictability.
    Well, what of the unpredictability for Alaska of Exxon's 
drunken captain running his ship aground? And one cannot help 
but wonder now what additional precautions BP might have taken 
in the Gulf if that corporation did not know that the Supreme 
Court had its back on predictability.
    I mention these concerns to you, Solicitor General Kagan, 
because if confirmed, you will make decisions that affect every 
aspect of Americans' lives. If confirmed, I hope and trust that 
you will adhere to the best institutional traditions of the 
Supreme Court and act with a clear understanding of the proper 
role of all the institutions of government provided for us by 
our founding fathers.
    It is a great Constitution we have inherited, and you will 
be a great justice if you interpret our Constitution in the 
light of its founding purpose rather than according to the 
preferences of today's most powerful interests.
    I wish you well. I look forward to our week together. Thank 
you very much.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you very much, Senator Whitehouse.
    Senator Klobuchar.

STATEMENT OF HON. AMY KLOBUCHAR, A U.S. SENATOR FROM THE STATE 
                          OF MINNESOTA

    Senator Klobuchar. Thank you, Mr. Chairman.
    Like my colleagues, I want to acknowledge the tremendous 
loss of Senator Byrd. Many in here, since we are in the 
Judiciary Committee, did know his love and respect for the 
Constitution.
    I did want to acknowledge his coal miner roots and that he 
never forgot where he came from. I was reminded of this at his 
90th birthday party, when Senator Kennedy stood and told the 
story of when he was campaigning for his brother for President 
in West Virginia. His bus stalled out on a highway and Senator 
Kennedy himself called the West Virginia Highway Patrol and he 
said, ``Ma'am, our bus is broke down on the highway.'' She 
said, ``Where are you, sir? '' He said, ``We are on the Robert 
C. Byrd Highway.'' And she said, ``Which one? ''
    We all know where he came from.
    Welcome, Solicitor General Kagan. We have heard a lot today 
about your work experience, as we should. But when I think 
about your broad range of legal work and the practical real 
world experience you have had, I am reminded of the famous 
speech that President Teddy Roosevelt gave 100 years ago this 
year.
    To paraphrase President Roosevelt, ``It's not the critic 
who counts. The credit belongs to the one who is actually in 
the arena, who strives to do the deeds, who spends himself in a 
worthy cause, who, at the best, knows, in the end, the triumph 
of high achievement, and his place shall never be with those 
cold and timid souls who neither know victory nor defeat.''
    Solicitor General Kagan, there are always a lot of critics 
on the sidelines, but you have actually been in the arena as a 
manager, as a teacher, as a an adviser, as a consensus-builder, 
and as a lawyer.
    In every job you have had, you have worked very hard and 
you have done very well. That is why you are before us today 
being considered, in the words of Teddy Roosevelt, ``for this 
high achievement.''
    Your work on the front lines tells me that you have 
practical experience thinking about the impact of laws and 
policies on the lives of ordinary Americans. When you are 
involved in considering the nitty-gritty details of different 
policies, when you are actually in the game as a decisionmaker, 
you have to figure out when to compromise and when to hold 
firm.
    You have to know exactly what the consequences of your 
recommendations will be. You have to think about the lives that 
will be impacted.
    You were the first woman dean of Harvard Law School. There, 
you were widely credited with bringing together a faculty that 
was rife with division. Whether you were helping recruit 
talented professors to Harvard from across the political 
spectrum, as noted by Senator Graham, or later when you were 
working with Senators from both parties on anti-tobacco 
legislation, you forged coalitions and found resolution between 
seemingly intractable parties.
    It strikes me that it takes a pretty extraordinary person, 
who, after working in the Clinton Administration, can still get 
a standing ovation from the conservative Federalist Society, 
who inspires a group of 600 law students to show up for a rally 
wearing ``I Love Elena'' tee shirts; who is widely credited 
with calming the factionalism that had previously roiled your 
law school.
    In several different jobs now, you have successfully 
managed lawyers and, worse yet, law professors, a group that 
can certainly be described as fearless in the face of 
supervision.
    In sum, you have had a lot of practical experience reaching 
out to people who hold very different beliefs, and that is 
increasingly important on a very divided Supreme Court.
    That must be, by the way, why you have all the previous 
solicitor generals from the past 25 years, under both 
Democratic and Republican administrations, supporting you for 
this job.
    You also spent years teaching students as a law professor. 
You understand how law school allows students to dig deep into 
the details of a case and see the shades of gray. I think those 
of us in Congress could do well to recall the spirit of law 
school more frequently, to remember a time when it was our job 
to think through both sides of an argument and to give credence 
to the legitimate points of the other side.
    I believe that in government today, people need to engage 
rather than retreat to the opposite sides of the boxing ring.
    This brings me to a story about my fellow Minnesotan, 
Justice Harry Blackmun. His oldest daughter gave him a copy of 
Scott Turow's classic book, ``One L,'' for his 70th birthday. 
As you know, it is a book about the first year of law school.
    After reading the book, Justice Blackmun wrote a note to 
Scott Turow. He wrote, ``Surely, there is a way to teach law, 
strict and demanding though it may be, with some glimpse of its 
humaneness and basic good. You so properly point out that there 
is room for flexibility in different answers and that not all 
is black or white. If I ever learned anything on the bench,'' 
Justice Blackmun said, ``it is that.''
    It seems to me, General Kagan, that in all the jobs you 
have had, you have carried the spirit of law school with you, 
the spirit of constant engagement and good faith efforts to 
reconcile different views. We would welcome such traits on our 
Supreme Court.
    I also see in you someone like your former boss, Thurgood 
Marshall, someone who thinks that the law is more than just an 
academic exercise. I, for one, would like to see someone who 
thinks very deeply about the consequences that legal choices 
and legal decisions have on real people.
    For me, I would welcome a justice who, in the Lilly 
Ledbetter employment discrimination case, would raise, like 
Justice Ginsburg did, some real world points, like what was 
Lilly supposed to do to file her complaint on time; run around 
and ask male employees what their salaries were, sneak into 
their desks to see their paychecks.
    I would also welcome a justice who, in the Exxon Valdez 
case, as pointed out by my colleague, Senator Whitehouse, would 
have thought, as Justice Stevens did, about the real word 
impacts of slashing the damages that the jury had awarded to 
the 32,000 fishermen whose livelihoods were tragically impacted 
by the Exxon Valdez oil spill in 1989.
    While I do not know what you would have done in these 
cases, your practical experience leads me to believe you may 
have at least considered such things.
    Now, even with the variety of legal experiences that you 
have had, questions have been raised as to whether it is 
appropriate to nominate someone to the Supreme Court who has 
never been a judge before.
    As you know, more than one-third of all Supreme Court 
justices throughout history did not have prior judicial 
experience, including Justices Rehnquist and Frankfurter and 
Brandeis.
    In an acknowledgment of the importance of your real world 
experience, Justice Scalia said recently that he was, quote, 
``happy to see this latest nominee is not a Federal judge and 
not a judge at all.''
    I think your practical experience will be helpful should 
you be confirmed to the Supreme Court, and I look forward to 
asking you more about that.
    As a former prosecutor, I am particularly interested in 
your approach to criminal law cases. When I was the Hennepin 
County Attorney, I saw firsthand how the law can impact the 
lives of real people. Of course, criminal justice cases that 
reach the Supreme Court involve complicated tradeoffs between 
competing values--safety, privacy and liberty. And I would like 
to know more about how you expect to evaluate these issues.
    I often get concerned that pragmatic experiences are 
missing in judicial decisionmaking, such as when I looked at 
last year's Supreme Court decision in the Melendez-Diaz case, 
where a majority broadly interpreted the confrontation clause 
to include crime lab workers, creating potentially unwieldy and 
unnecessary requirements for prosecutors. I want to ask you 
about that.
    As I consider your nomination, I also want to reflect on 
how far we have come. Senator Feingold mentioned the obstacles 
that Sandra Day O'Connor and that Justice Ginsburg faced when 
they were coming up through the legal ranks. And I know you are 
well aware of the strides that women have made.
    In a 2005 speech, quoting Justice Ginsburg, you described a 
19-11 student resolution at the University of Pennsylvania Law 
School. This resolution would have introduced a $0.25 per week 
penalty on all students without mustaches.
    The women who came before you to be considered by this 
Committee helped blaze a trail and although your record stands 
on its own, you are also, to borrow a line from Isaac Newton, 
``standing on the shoulders of giants.''
    In the course of more than two centuries, 111 justices have 
served on the Supreme Court. Only three have been women. If you 
are confirmed, you would be the fourth and, for the first time 
in its history, three women would take their places on the 
bench when arguments are heard in the fall.
    Last year, at the confirmation hearings for Justice 
Sotomayor, I said I was looking for three things in a Supreme 
Court justice--good judgment, humility, and the ability to 
apply the law without fear or favor.
    I would like to add one additional consideration to the 
three standards I mentioned last year. I would like to see a 
Supreme Court justice who is able to go into the back room 
where the justices meet and where no ordinary citizens are 
present and bring some real world perspective to the room.
    I would like to see someone who would not expect the victim 
in an employment discrimination case to go rifling through her 
male coworkers' desks to see what their pay stubs say. I would 
like to see someone who would not expect prosecutors to bring a 
crime lab analyst to every trial, even when the crime lab's 
findings are not disputed.
    This will be my focus at the hearing. I am hopeful that 
your background and experiences, to use the words of Teddy 
Roosevelt, ``the experiences of someone who has actually been 
in the arena'' will help you be that person.
    I am hopeful that you will use your great skills and 
abilities to bring that common sense perspective to the Court, 
and remember that the cases that you hear involve real people 
with real problems looking for real remedies.
    Thank you very much.
    Chairman Leahy. Thank you very much, Senator Klobuchar.
    Senator Kaufman.

STATEMENT OF HON. EDWARD KAUFMAN, A U.S. SENATOR FROM THE STATE 
                          OF DELAWARE

    Senator Kaufman. Thank you, Mr. Chairman.
    Welcome, Solicitor General Kagan, and welcome, also, to 
your family and friends, and I want to congratulate you on your 
nomination.
    We are now beginning the end of an extraordinarily 
important process. Short of voting to go to war, a Senator's 
constitutional obligation to advise and consent on Supreme 
Court nominees is probably his or her most important 
responsibility.
    Supreme justices serve for life. Once the Senate confirms a 
nominee, she is likely to affect the law and the lives of 
Americans much longer than the Senators who confirmed her.
    As Senators, I believe we have an obligation not to base 
our decision on empty political slogans or on charges of guilt 
by association or on any litmus test. Instead, we should focus 
on your record and your answers to our questions, which will 
allow us to determine whether you have the qualities necessary 
to serve all Americans and the rule of law on our Nation's 
highest court.
    Over the years, as chief of staff to then Senator Biden, 
teaching at the Duke Law School, and as a Senator myself, I 
have thought a lot about the qualities I believe a Supreme 
Court nominee should have; a first-rate intellect, significant 
experience, unquestioned integrity, absolute commitment to the 
rule of law, unwavering dedication to being fair and open-
minded, and the ability to appreciate the impact of court 
decisions on the lives of ordinary people.
    Last year, when Justice Souter announced his retirement 
and, again, when Justice Stevens announced his retirement this 
April, I suggested that the Court would benefit from a broader 
range of experience among its members.
    My concern was not just the relative lack of women or 
racial or ethnic minorities on Federal courts, although that 
deficit remains glaring. I was noting the fact that the current 
justices all share very similar professional backgrounds.
    Every one of them served as a Federal circuit court judge 
before being appointed to the Supreme Court. Not one of them 
has ever run for political office, like Sandra Day O'Connor, 
Earl Warren, Hugo Black.
    General Kagan, I am genuinely heartened by what you would 
bring to the Court based on your experience working in all 
three branches of government and the skills you developed 
running a complex institution like the Harvard Law School, and, 
yes, the prospect that you are being the fourth woman to serve 
on our Nation's highest court.
    Some pundits and some Senators have suggested that your 
lack of judicial experience is somehow a liability. I could not 
disagree more. While prior judicial experience can be valuable, 
the Court should have a broader range of perspectives than just 
gleaned from the appellate branch.
    General Kagan, you bring valuable nonjudicial experience 
and a freshness of perspective that is lacking on the current 
Court. As has been said over and over again, but I think it is 
worth repeating, in the history of the Supreme Court, more than 
one-third of the justices have had no prior judicial experience 
before being nominated and a nominee's lack of judicial 
experience has certainly been no barrier to success.
    Woodrow Wilson nominated Louis Brandeis in 1916. Many 
objected on the ground that he had never served on the bench. 
Over his 23-year career, however, Justice Brandeis proved to be 
one of the Court's greatest members. His opinions exemplified 
judicial restraint. His approach still resonates in our 
judicial thinking more than 70 years after his retirement.
    Felix Frankfurter, William Douglas, Robert Jackson, Byron 
White, Lewis Powell, Harlan Fiske Stone, Earl Warren, and 
William Rehnquist all became justices without ever previously 
being judges, and they certainly led distinguished careers on 
the Supreme Court.
    As Justice Frankfurter, someone who would know, wrote in 
Judicial Experience in 1957, and I quote, ``One is entitled to 
say, without qualification, that the correlation between prior 
judicial experience and fitness for the function of the Supreme 
Court is zero,'' unquote.
    We have all now had the opportunity to review your 
extensive record as a lawyer, a policy adviser, and an 
administrator. Throughout your career, you have consistently 
demonstrated the all too rare combination of first-rate 
intellect and intensely pragmatic approach to identifying and 
solving problems.
    Last summer, during then Judge Sotomayor's confirmation 
hearings, I focused on the current Court's handling of business 
cases, as a number of folks have talked about today. I am 
convinced, by education, experience and inclination, that the 
integrity of our capital markets, U.S. capital markets, along 
with our democratic traditions, is what makes America great.
    Too often, however, today's Supreme Court seems to 
disregard settled law and Congressional policy choices in order 
to promote business interests at the expense of the people's 
interest. With its preempting state consumer protection in 
Medtronic, striking down punitive damage awards in Exxon, 
restricting the access to the courts in Twombly, or overturning 
96 years of pro-consumer antitrust law in Leegin, this Court 
gives me the impression that in business cases, the working 
majority is business oriented to a fault.
    The Exxon case demonstrates how this pro-business 
orientation can effect the lives of ordinary people. In that 
case, four of the eight justices who participated voted to bar 
all punitive damages in maritime cases against employers, like 
Exxon, for their employees' reckless behavior.
    Justice Alito did not participate in the case. So the Court 
split 4-4 on this point. But had he participated and voted with 
the conservatives on the Court, then today, individuals harmed 
by oil spills like Exxon Valdez would be subject to a flat ban 
on punitive damages in maritime accidents.
    As we consider the current disaster in the Gulf, the 
prospect is worth contemplating.
    As has been said several times, but, again, worth 
repeating, the Court's decision last fall in the Citizens 
United case, which several of my colleagues have mentioned, is 
the latest example of the Court's pro-corporate bent. The 
majority opinion in that case should put the nail in the coffin 
of the claims that judicial activism is a sin committed by 
judges of only one political ideology.
    What makes the Citizens United decision particularly 
troubling is that it is at odds with what some of the Court's 
most recently confirmed members said during their confirmation 
hearings.
    We heard a great deal, a great deal, about their deep 
respect for existing precedent. Now, however, the respect seems 
to vanish whenever it interferes with the desired pro-business 
outcome.
    As I have said before, charges of judicial activism are 
often unhelpful, empty epithets divorced from a real assessment 
of judicial temperament. But that does not mean the term 
``judicial activism'' is necessarily meaningless.
    If we want to take the term seriously, it might mean a 
failure to defer to the elected branches of government; it 
might mean disregard of longstanding precedent; it might mean 
deciding cases based on personal policy preferences rather than 
the law; or, it might mean manipulating a case to get at issues 
not squarely presented by the parties.
    Now, by any of these definitions, the decision in Citizens 
United was a highly activist decision. First, the Court 
summarily overturned years of settled precedent and statutory 
law that had limited the influence of corporate electioneering.
    Second, the Court took it upon itself to order that the 
case be re-argued on broad constitutional grounds, which 
neither party in the case had asked it to do. In effect, the 
justices wrote their own question of the case in order to 
obtain the desired result.
    I share the fear expressed by Justice Stevens in his 
dissent that the Court's focus on results--on results--rather 
than the law in this and other cases will do damage to the 
Court as an institution.
    General Kagan, I plan to spend the bulk of my time asking 
you about the Court's business cases based on my concern about 
its apparent bias. One of the aspirations of the American 
judicial system is that it render justice equally to ordinary 
citizens and to the most powerful.
    We need justices on the Supreme Court who not only 
understand that aspiration, but are also committed to making it 
a reality. For Americans to have faith in the rule of law, we 
need one justice system in this country, not two.
    Very soon, those of us up here will be done talking, thank 
goodness, and you will have a chance to testify and then to 
answer our questions. I look forward to your testimony.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you. And just before we go to Senator 
Franken, just so you understand what the schedule is, Solicitor 
General and others, once Senator Franken finishes, we are going 
to just stay here in the room. It is going to take about a 
minute to rearrange the tables, as the two Senators who are 
going to introduce you will. And then you get a chance to 
speak.
    Senator Franken.

STATEMENT OF HON. AL FRANKEN, A U.S. SENATOR FROM THE STATE OF 
                           MINNESOTA

    Senator Franken. Thank you, Mr. Chairman.
    As the Chairman just pointed out, General Kagan, I am last, 
and that is because I am most junior. But Senator Byrd was 
always kind to me, even though he was a giant of this 
institution. And I was moved that he always came in when we 
needed him, even during the deep snows of late December.
    I would have to serve until I am 118 years old to serve as 
long as Senator Byrd. I very much doubt that will happen or 
that I will have a legacy as permanent as his. I would also 
like to extend my condolences to Justice Ginsburg and her 
family and she is in our thoughts and prayers.
    Every Senator who has spoken before me has sworn to support 
and defend the Constitution of the United States, and so have 
I. There are few things that we do that are more important to 
fulfilling that oath than making sure that the justices of the 
Supreme Court are brilliant, humane, and just individuals.
    But these hearings are also a learning experience for the 
people of Minnesota and for every American. Before I joined the 
U.S. Senate, I watched every televised confirmation hearing--
not the whole thing, of course, but at least part. And I think 
part of my job is to continue that learning experience for the 
American people.
    Now, last year, I used my time during these hearings to 
highlight what I think is one of the most serious threats to 
our Constitution and to the rights and guarantees of the 
American people: the activism of the Roberts Court.
    I noted that for years, conservatives running for the 
Senate have made it almost an article of faith that they will 
not vote for activist judges who make law from the bench. And 
when asked to name a model justice, they would often cite 
Justice Thomas, who I noted has voted to overturn more Federal 
laws than Justice Stevens and Justice Breyer combined.
    In recent campaign cycles, you would also hear the name of 
Justice Roberts. Well, I think we have established very 
convincingly, we did during the Sotomayor hearing, that there 
is such a thing as judicial activism; there is such a thing as 
legislating from the bench; and, it is practiced repeatedly by 
the Roberts Court and it has cut in only one direction--in 
favor of powerful corporate interests and against the rights of 
individual Americans.
    In the next few days, I want to continue this conversation, 
because I think things have only gotten worse. So I want to say 
one thing to the people of Minnesota who are watching on TV or 
listening. With few exceptions, whether--and I'm echoing 
Senator Cardin here--whether you're a worker, a pensioner, a 
small business owner, a woman, a voter, or a person who drinks 
water, your rights are harder to defend today than they were 5 
years ago.
    My State has been victim to the third-largest Ponzi scheme 
in history, and yet in 2008, in a case called Stoneridge, the 
Roberts Court made it harder for investors to get their money 
back from people who defrauded them.
    The Twin Cities have more older workers per capita than 
almost any other city in the Nation, and yet in 2009, in a case 
called Gross, the Roberts Court made it easier for corporations 
to fire older Americans and get away with it.
    Minnesota has more wetlands than all but three states, yet 
in a case called Rapanos, the Court cut countless streams and 
wetlands out of the Clean Water Act, even though they had been 
covered for up to 30 years.
    Minnesota banned all corporate spending in state and local 
elections in 1988, and yet in January, in Citizens United, the 
Roberts Court nullified our state laws and turned back a 
century of federal law by allowing corporations to spend as 
much money as they want, whenever they want, in our elections--
and not just federal elections, Duluth elections, Bemidji 
elections, Minnesota elections. There is a pattern here. Each 
of these decisions was won with five votes and in each of these 
decisions that bare majority used its power to help big 
business.
    There is another pattern here. In each of those decisions, 
in every one, Justice John Paul Stevens led the dissent. Now, 
Justice Stevens is no firebrand liberal. He was appointed to 
the Seventh Circuit by Richard Nixon. He was elevated to the 
Supreme Court by Gerald Ford. By all accounts, he was 
considered a moderate. And yet he didn't hesitate to tell 
corporations that they aren't a part of ``we the people'' by 
whom and for whom our Constitution was established, and he 
didn't flinch when he told the President that the executive is 
bound to comply with the rule of law. General Kagan, you've got 
big, big shoes to fill.
    But before I turn it over to you, I want to talk a bit more 
about one of the decisions I mentioned. I want to talk more 
about Citizens United. Now, you've heard a lot about this 
decision already today, but I want to come at it from a 
slightly different angle. There is no doubt that the Roberts 
Court's disregard for a century of federal law, the decades of 
Supreme Court's own rulings, is wrong and shocking. It has torn 
a gaping hole in our election laws.
    So of course I'm worried about how Citizens United is going 
to change our elections, but I am more worried about how this 
decision is going to affect our communities and our ability to 
run those communities without a permission slip from big 
business.
    Let me give you two examples of what I'm talking about. In 
the early 1960s, car companies knew that they could avoid a 
large number of fatalities by installing seatbelts in every 
vehicle, but they didn't want to. They said safety doesn't 
sell. But Congress didn't listen to the car companies. So in 
1966, Congress passed a law requiring that all passenger cars 
have seatbelts. Since then, the fatality rate from car 
accidents has dropped by 71 percent.
    Here is another story. Around the same time that we passed 
the seatbelt law, people started to realize that leaded 
gasoline that cars ran on was poisoning our air. But oil 
companies didn't want to take the lead out of gasoline because 
altering their refineries was going to be, in the words of the 
Wall Street Journal, ``a multi-billion dollar headache.'' But 
in 1970, Congress passed the Clean Air Act anyway, and thanks 
in part to that law, by 1995 the percentage of children with 
elevated levels of lead in their blood had dropped by 84 
percent.
    Along with the Clean Water Act of 1972, the Clean Air Act 
of 1970 and the Motor Vehicle Act, are the three pillars of the 
modern consumer safety and environmental laws. Here is 
something else they have in common: they were all passed around 
60 days before an election.
    Do you think those laws would have stood a chance if 
Standard Oil and GM could have spent millions of dollars 
advertising against vulnerable Congressmen, by name, in the 
last months before their elections? I don't. So here's my 
point, General Kagan. Citizens United isn't just about election 
law, it isn't just about campaign finance law. It's about 
seatbelts, it's about clean air and clean water, it's about 
energy policy and the rights of workers and investors, it's 
about health care. It's about our ability to pass laws that 
protect the American people, even if it hurts the corporate 
bottom line.
    As Justice Stevens said, it's about our need to prevent 
corporations from undermining self-government. But I think you 
know that. General Kagan, you've shown remarkable skill as a 
lawyer for our government, remarkable candor as one of its 
critics--say, for example, about Supreme Court confirmation 
hearings. I like that and I want to see that legal skill in 
action. I want to see if you might continue the work of Justice 
Stevens.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you very much, Senator Franken. I 
appreciate your statement.
    I would ask the staff if we could set up the table because 
I noticed Chairman Kerry and Senator Brown are here. Everybody 
just stay where you are. I appreciate both Senators being here. 
I know everybody's had to rearrange their own schedule. We've 
been locked in this room, but I'm told that there's been a 
number of thunderstorms in the area. Senator Brown, I think you 
were flying back from Massachusetts. That could not have been 
very much fun.
    The first witness is Senator John Kerry. He's a senior U.S. 
Senator from Massachusetts. He's Chairman of the Senate Foreign 
Relations Committee. I've had the privilege of serving with him 
ever since he came to the Senate. He's a decorated Vietnam 
veteran. From his groundbreaking work on the Iran Contra 
scandal to his leadership in global efforts to combat AIDS, 
Senator Kerry has distinguished himself as one of our Nation's 
most respected voices on national security and international 
affairs, and chairs the prestige Foreign Relations Committee.
    So Senator Kerry--Chairman Kerry--we're pleased to have you 
before our Committee today. Please go ahead, sir.

PRESENTATION OF ELENA KAGAN, NOMINEE TO BE AN ASSOCIATE JUSTICE 
OF THE SUPREME COURT OF THE UNITED STATES BY HON. JOHN KERRY, A 
          U.S. SENATOR FROM THE STATE OF MASSACHUSETTS

    Senator Kerry. Thank you very much, Chairman Leahy, for 
those kind words of introduction, Ranking Member Sessions, and 
to all my colleagues on the important Judiciary Committee at 
this important moment.
    Members of the Committee, Mr. Chairman, 16 years ago I had 
the privilege to introduce Steven Briar to this Committee. With 
the loss today of Senator Byrd, I am particularly reminded of 
Senator Kennedy sitting beside me that day. As you all know 
better than anybody, Senator Kennedy served on this Committee 
for 46 years and I know the pride he would feel seeing Elena 
Kagan nominated for the Supreme Court of the United States.
    When Ted introduced then-Judge Briar, he quoted Oliver 
Wendell Holmes, that ``every calling is great when greatly 
pursued.'' Those words applied to Steven Briar, and I can share 
with you my complete and total confidence that they apply 
equally to Solicitor General Elena Kagan.
    Massachusetts is proud, Mr. Chairman, of Elena Kagan's 
accomplishments. We believe that through these hearings, as 
each of you get to know her as we do, she will earn broad 
bipartisan support, just as she did when she was nominated as 
Solicitor General.
    By now, every one of us has heard many times repeated, and 
you know well, the high points of her record: a trail-blazing 
pace culminating in her selection as the first woman to serve 
as the dean of Harvard Law School, and the first woman to serve 
as Solicitor General.
    If confirmed, she will make history once again. In an 
America where women comprise more than half the population, she 
will join Justices Ginsburg and Sotomayer, and, for the first 
time in our history, a full third of the U.S. Supreme Court 
will be women.
    But there is much more than distinguishes Elena. Her life 
has really been characterized by her passion for public service 
and her awareness of what it means to be a good public citizen. 
A close friend from her days clerking for Justice Marshall 
remembers Elena interviewing at a big law firm in New York, 
meeting with a young partner who, with no family to support, 
was pulling in close to a million dollars a year.
    So Elena asked him, ``What do you do with all that money? 
'' He replied, ``I buy art.'' Elena just shook her head, in the 
conviction that there really were better ways to expend her 
life's work, and she continued to pursue efforts to more 
directly impact the lives of those around her.
    Her skills and intellect very quickly came to the attention 
of the Clinton White House, which is when I first got to know 
her. I had been asked by the Chairman of the Commerce 
Committee, Senator Hollings, our old friend, to help break 
through a stalemate on a bipartisan tobacco bill. It was a 
difficult issue for both caucuses. Elena became the 
administration's point person.
    When we started out, no one gave us any hope of being close 
to, or getting close to passage. But Elena camped out in the 
vice president's office off the Senate floor, shuttling back 
and forth to the White House. She worked day and night equally 
with both sides of the aisle, working every angle, thinking 
through every single approach. On the eve of the Commerce 
Committee's mark-up, things appeared to be falling apart, 
something we're all too familiar with here.
    But Elena simply wasn't going to let that happen. That was 
an unacceptable outcome. She got together with the Republican 
Senators and staff and she listened carefully. She helped all 
of us to meet the last-minute objections. It was classic Elena. 
She saw a path forward when most people saw nothing but 
deadlock, and it led to a 19:1 vote to pass the bill out of 
committee, a mark of bipartisanship and consensus building that 
few believed was possible.
    That is what I believe Elena Kagan will bring to the court. 
She was tough and tenacious in argument when necessary, but she 
also knew when it was necessary to strike a compromise. She had 
a knack for knowing how to win people over, an ability to make 
people see the wisdom of an argument.
    I remember lots of late nights in a very quiet Capitol 
Building, walking off the Senate floor to meet with my staff 
and Elena. Invariably, Elena would be the one to have a new 
idea, a fresh approach. It was a tutorial in consensus building 
from someone for whom it was pure instinct and it won Elena the 
respect of Republicans and Democrats alike.
    No doubt, her hands-on experience working the governance 
process is actually, in this day and age and in this moment of 
the court, probably an enormous asset. Frankly, I think it's a 
critical component of what makes her a terrific choice, someone 
who really understands how laws are created and the real-world 
effects of their implementation. It's a reminder of why some of 
the greatest justices in our history were not judges before 
they sat on the court. Among those are names like Frankfurter 
and Brandeis.
    I might add that she brought the same pragmatic knack for 
consensus building to her stewardship at Harvard Law School. 
There, she found what was affectionately acknowledged--I 
emphasize ``affectionately acknowledged''--as a dysfunctional 
and divided campus and she transformed it again to a cohesive 
institution, winning praise from students and faculty across 
the ideological spectrum.
    Elizabeth Warren, Elena's colleague at Harvard and chair of 
the Congressional panel currently overseeing our economic 
relief effort, says, simply, ``she changed morale around 
here''.
    Charles Fried, the former Solicitor General under President 
Reagan and renowned conservative and constitutional expert says 
of her prospects as a justice on the Supreme Court: ``I think 
Elena would be terrific because, frankly, the court is stuck. 
The great thing about Elena is, there's a freshness about her 
that promises some possibility of getting away from the 
formulas that are wheeled out today on both sides. I have no 
reservations about her whatsoever.''
    John Manning, the first hire under Kagan's deanship, a 
conservative and an expert on textualism and separation of 
powers, says, ``I think one of the things you see in Kagan as 
dean was that she tried to hire folks with different approaches 
to law and different ideological perspectives. She was equally 
as strong in her praise for Scalia as she was in her praise for 
Breyer. She celebrated both. It's a good predictor of how 
she'll be as a judge. She would be fair and impartial, the sort 
of judge who would carefully consider briefing an argument in 
every case, the sort of judge I would want if I didn't know 
which side of the case I was arguing.''
    And so in closing, my colleagues, I'm glad that in these 
next days you're going to get a chance to know Elena, as so 
many of us have in Massachusetts, the way she thinks, her 
approach to the law, an extremely capable public servant, well 
grounded in the Constitution, and I assure you, deeply 
committed to the values that we all share as Americans.
    I will always remember what Justice Potter Stewart said 
about what makes a first-rate judge. He said, ``The mark of a 
good judge is a judge whose opinion you can read and have no 
idea if the judge was a man or a woman, a Republican or 
Democrat, Christian or Jew, you just know he or she was a good 
judge.'' I believe that Elena Kagan will meet that standard and 
I have every confidence that she'll be an outstanding justice 
of the Supreme Court in every sense of the word.
    So, thank you, Mr. Chairman, for the privilege of 
introducing this superb nominee.
    Chairman Leahy. Thank you very much.
    Also, we have Senator Scott Brown. Senator Brown was 
elected this January to fill the seat of one of this body's 
most beloved members, Senator Ted Kennedy, who was actually the 
longest-serving of either party on the Senate Judiciary 
Committee in the history of the Senate.
    Senator Brown serves on the Senate Committee on Armed 
Services, the Committee on Veterans Affairs, and the Homeland 
Security and Governmental Affairs Committee. Prior to his 
election to the U.S. Senate, Senator Brown served in the 
Massachusetts State Senate, where he advocated for children's 
and victims' rights and worked to promote environmental and 
good government initiatives.
    He is a 30-year member of the Massachusetts Army National 
Guard. Do I have that correct, 30-year? He was awarded the Army 
Commendation Medal for meritorious service in homeland security 
following the terrorist attacks of September 11th, 2001. I 
know, from my conversation I had with you at the end of last 
week, that you had to move a number of things around to get 
here this afternoon. I want you to know the Committee 
appreciates that.
    Please go ahead, Senator Brown.

PRESENTATION OF ELENA KAGAN, NOMINEE TO BE AN ASSOCIATE JUSTICE 
OF THE SUPREME COURT OF THE UNITED STATES BY HON. SCOTT BROWN, 
         A U.S. SENATOR FROM THE STATE OF MASSACHUSETTS

    Senator Brown. Well, thank you, Mr. Chairman. The thanks is 
to you for accommodating Senator Kerry and me in adjusting your 
schedules. It means a lot to sit next to Senator Kerry and make 
the presentation to you and to Ranking Member Sessions and the 
members of the Committee, and I am pleased to join you in 
upholding a longstanding tradition of introducing Elena Kagan 
of Massachusetts to the Committee.
    First, though, I would like to express my heartfelt 
condolences to Senator Byrd's family for the loss that they've 
suffered during this difficult time. Although I only served 
briefly with Senator Byrd, I was well aware of his deep and 
longstanding commitment to the Senate and what it stood for. He 
represented the people of West Virginia with great class and 
dignity. I also am saddened to hear of the passing of Martin 
Ginsburg, the husband of Justice Ruth Bader Ginsburg, and I 
offer my condolences to Justice Ginsburg and her family.
    I wish to congratulate Ms. Kagan on her nomination. It's an 
honor to introduce her today. I had the pleasure of meeting her 
last month and found her to be an impressive and pleasant 
individual. I indicated then, and I look forward to attending 
this Committee's hearings to learn more about her record, her 
philosophy, and her qualifications.
    As an attorney myself, I recognize an impressive legal 
resume when I see one, and there's no doubt that Ms. Kagan has 
gone far since graduating from Harvard Law School magna cum 
laude in 1986. Following her law school days in Cambridge, Ms. 
Kagan clerked for appellate court judge and U.S. Supreme Court 
Justice Thurgood Marshall.
    Then she entered private legal practice at a prestigious 
Washington, DC law firm before joining the faculty of the 
University of Chicago School, where she earned tenure in 1995. 
From 1995 to 1999, she served with the Clinton administration 
first as an associate White House counsel, and then in 
positions with the Domestic Policy Council.
    In 1999, she returned to Massachusetts to join the faculty 
of Harvard Law School--you heard Senator Kerry mention some of 
her accolades there--where she would become, later, dean and 
Charles Hamilton Houston Professor of Law.
    While at Harvard, her article, ``Presidential 
Administration'', was named the year's top scholarly article by 
the American Bar Association's Section on Administrative Law 
and Regulatory Practice.
    President Obama nominated Ms. Kagan to be Solicitor General 
on January 5, 2009, and I'm very proud that our Nation's first 
female Solicitor General has such deep roots in Massachusetts. 
If confirmed, she would be the third woman on the Supreme Court 
and only the first in the history of our court.
    As Solicitor General, she frequently represents the United 
States before the Supreme Court and she's argued several high-
profile cases before the court, and was recently victorious in 
the Holder v. Humanitarian Law Project case which held that 
Congress's prohibition of material support and resources to 
foreign terrorist organizations is constitutional.
    She's undoubtedly a brilliant woman who has served her 
country in a variety of capacities and has made significant 
contributions to Massachusetts, and I certainly thank her for 
that. This Committee, as you know, Mr. Chairman and members of 
the Committee, is about to embark on one of the most serious 
duties that the Senate is constitutionally tasked with, 
something that I am honored to play a small part in: vetting 
the qualifications, temperament, and philosophy of a lifetime 
appointment, something that is very, very serious and very 
important.
    I look forward to Ms. Kagan's responses to the Committee's 
questions. I know that I have some of my own, and I'm quite 
sure my colleagues here today do as well. Our constitutional 
duty of advice and consent is imperative and should not be 
taken lightly, and I plan not to take it lightly as well.
    In closing, I look forward to a thorough and fair 
examination of Ms. Kagan's record. I want to thank you, Mr. 
Chairman and Ranking Member Sessions and members of the 
Committee, for adjusting your schedules to allow Senator Kerry 
and me to come before you.
    Thank you.
    Chairman Leahy. Thank you very much. As I said, you're the 
ones that adjusted yours. I thank you both for being here and I 
appreciate that.
    The staff will reset the table and we can invite Ms. Kagan 
back to the table.
    I would note that we actually come now to really the 
beginning of what is for all Senators one of the most important 
and most cherished part of our duties, the advice and consent. 
I stated at the beginning of this hearing, there's only one 
person who can nominate somebody to the Supreme Court and that 
person is going to affect 300 million Americans, but only 100 
of us get to vote. That process will begin now.
    Solicitor General, please stand and raise your right hand.
    [Whereupon, the witness was duly sworn.]
    Chairman Leahy. Thank you. Please be seated.
    Solicitor General Kagan, I know you have an opening 
statement. I will--now the floor is yours.

   STATEMENT OF ELENA KAGAN, SOLICITOR GENERAL OF THE UNITED 
                             STATES

    Solicitor General Kagan. Thank you very much, Mr. Chairman, 
Senator Sessions, and members of the Committee. I'd like to 
thank Senators Kerry and Brown for those generous 
introductions. I also want to thank the President again for 
nominating me to this position. I'm honored and humbled by his 
confidence.
    Let me also thank all the members of the Committee, as well 
as many other Senators, for meeting with me in these last 
several weeks. I've discovered that they call these courtesy 
visits for a reason: each of you has been unfailingly gracious 
and considerate.
    I know that we gather here on a day of sorrow for all of 
you, for this body, and for our Nation with the passing of 
Senator Byrd. I did not know him personally as all of you did, 
but I certainly knew of his great love for this institution, 
his faithful service to the people of his State, and his 
abiding reverence for our Constitution, a copy of which he 
carried with him every day, a moving reminder to each of us who 
serves in government of the ideals we must seek to fulfill. All 
of you and all of Senator Byrd's family and friends are in my 
thoughts and prayers at this time.
    I would like to begin by thanking my family, friends and 
students who are here with me today. I thank them for all the 
supports they've given me during this process and throughout my 
life; it's really wonderful to have so many of them behind me.
    I said, when the President nominated me, that the two 
people missing were my parents, and I feel that deeply again 
today. My father was as generous and public-spirited a person 
as I've ever known, and my mother set the standard for 
determination, courage, and commitment to learning.
    My parents lived the American dream. They grew up in 
immigrant communities. My mother didn't speak a word of English 
until she went to school, but she became a legendary teacher, 
and my father a valued lawyer. They taught me and my two 
brothers, both high school teachers, that this is the greatest 
of all countries because of the freedoms and opportunities it 
offers its people. I know that they would have felt that today 
and I pray that they would have been proud of what they did in 
raising me and my brothers.
    To be nominated to the Supreme Court is the honor of a 
lifetime. I'm only sorry that, if confirmed, I won't have the 
privilege of serving there with Justice John Paul Stevens. His 
integrity, humility, and independence, his deep devotion to the 
court and his profound commitment to the rule of law, all these 
qualities are models for everyone who wears, or hopes to wear, 
a judge's robe.
    If given this honor, I hope I will approach each case with 
his trademark care and consideration. That means listening to 
each party with a mind as open as his to learning and 
persuasion, and striving as conscientiously as he has to render 
impartial justice.
    I owe a debt of gratitude to two other living justices. 
Sandra Day O'Connor and Ruth Bader Ginsburg paved the way for 
me and so many other women in my generation. Their pioneering 
lives have created boundless possibilities for women in the 
law. I thank them for their inspiration, and also for the 
personal kindnesses they have shown me.
    My heart goes out to Justice Ginsburg and her family today. 
Everyone who ever met Marty Ginsburg was enriched by his 
incredible warmth and humor and generosity, and I'm deeply 
saddened by his passing.
    Mr. Chairman, the law school I had the good fortune to lead 
has a kind of motto spoken each year at graduation. We tell the 
new graduates that they are ``ready to enter a profession 
devoted to those wise restraints that make us free.'' That 
phrase has always captured, for me, the way law and the rule of 
law matters. What the rule of law does is nothing less than to 
secure for each of us what our Constitution calls the 
``blessings of liberty,'' those rights and freedoms, that 
promise of equality that have defined this Nation since its 
founding. What the Supreme Court does is to safeguard the rule 
of law through a commitment to even-handedness, principle, and 
restraint.
    My first real exposure to the court came almost a quarter 
century ago when I began my clerkship with Justice Thurgood 
Marshall. Justice Marshall revered the court, and for simple 
reason: in his life, in his great struggle for racial justice, 
the Supreme Court stood as the part of government that was most 
open to every American and that most often fulfilled our 
Constitution's promise of treating all persons with equal 
respect, equal care, and equal attention.
    The idea is engraved on the very face of the Supreme Court 
building: ``Equal Justice Under Law.'' It means that everyone 
who comes before the court, regardless of wealth, or power, or 
station, receives the same process and the same protections. 
What this commands of judges is evenhandedness and 
impartiality. What it promises is nothing less than a fair 
shake for every American.
    I've seen that promise up close during my tenure as 
Solicitor General. In that job, I serve as our government's 
chief lawyer before the Supreme Court, arguing cases on issues 
ranging from campaign finance, to criminal law, to national 
security. And I do mean argue. In no other place I know is the 
strength of a person's position so tested, and the quality of a 
person's analysis so deeply probed. No matter who the lawyer or 
who the client, the court relentlessly hones in on the merits 
of every claim and its support in law and precedent.
    And because this is so, I always come away from my 
arguments at the court with a renewed appreciation of the 
commitment of each justice to reason and principle, a 
commitment that defines what it means to live in a Nation under 
law.
    For these reasons, the Supreme Court is a wondrous 
institution. But the time I spent in the other branches of 
government remind me that it must also be a modest one, 
properly deferential to the decisions of the American people 
and their elected representatives. What I most took away from 
those experiences was simple admiration for the democratic 
process. That process is often messy and frustrating, but the 
people of this country have great wisdom and their 
representatives work hard to protect their interests.
    The Supreme Court, of course, has the responsibility of 
ensuring that our government never oversteps its proper bounds 
or violates the rights of individuals, but the court must also 
recognize the limits on itself and respect the choices made by 
the American people.
    I am grateful beyond measure for the time I spent in public 
service, but the joy of my life has been to teach thousands of 
students about the law and to have had the sense to realize 
that they had much to teach me. I've led a school whose faculty 
and students examine and discuss and debate every aspect of our 
law and legal system, and what I've learned most is that no one 
has a monopoly on truth or wisdom.
    I've learned that we make progress by listening to each 
other across every apparent political or ideological divide. 
I've learned that we come closest to getting things right when 
we approach every person and every issue with an open mind. 
I've learned the value of a habit Justice Stevens wrote about 
more than 50 years ago, of understanding before disagreeing.
    I will make no pledges this week other than this one: that 
if confirmed, I will remember and abide by all these lessons. I 
will listen hard to every party before the court and to each of 
my colleagues. I will work hard and I will do my best to 
consider every case impartially, modestly, with commitment to 
principle and in accordance with law. That is what I owe to the 
legacy I share with so many Americans.
    My grandparents came to this country in search of a freer 
and better life for themselves and their families. They wanted 
to escape bigotry and oppression, to worship as they pleased, 
and work as hard as they were able. They found in this country, 
and they passed on to their children and their children's 
children, the blessings of liberty.
    Those blessings are rooted in this country's Constitution 
and its historic commitment to the rule of law. I know that to 
sit on our Nation's highest court is to be a trustee of that 
inheritance, and if I have the honor to be confirmed, I will do 
all I can to help preserve it for future generations.
    Thank you, Mr. Chairman. Thank you, members of the 
Committee.
    Chairman Leahy. Well, thank you, Solicitor General Kagan. I 
thank all the members of both sides of the aisle who have 
stayed and have been so attentive.
    We will come back here at 9 a.m. tomorrow. We stand in 
recess.
    [Whereupon, at 4:05 p.m. the Committee was recessed.]


THE NOMINATION OF ELENA KAGAN TO BE AN ASSOCIATE JUSTICE OF THE SUPREME 
                       COURT OF THE UNITED STATES

                              ----------                              


                         TUESDAY, JUNE 29, 2010

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9 a.m., in room 
SH-216, Hart Senate Office Building, Hon. Patrick J. Leahy, 
Chairman of the Committee, presiding.
    Present: Senators Leahy, Kohl, Feinstein, Feingold, 
Specter, Schumer, Durbin, Cardin, Whitehouse, Klobuchar, 
Kaufman, Franken, Sessions, Hatch, Grassley, Kyl, Graham, 
Cornyn, and Coburn.

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM 
                      THE STATE OF VERMONT

    Chairman Leahy. Good morning everyone. Today Justice John 
Paul Stevens' resignation from the Supreme Court takes effect. 
I appreciated your recognition of his service to the country in 
your opening statement Solicitor General Kagan.
    He was the first person, the first Supreme Court nomination 
I was able to vote on as a very young and very junior member of 
the U.S. Senate. But you spoke eloquently about the rule of 
law, securing the blessings of liberty, about the Constitution, 
and about your respect for all three branches of our democratic 
Government. And I appreciate your pledge to consider every case 
impartially, modestly, with commitment to principle, and in 
accordance with law.
    So this morning we begin our questioning. Senator Sessions 
and I talked about this. Each Senator, Republicans and 
Democrats, will have a 30-minute round, and we will alternate 
back and forth. So I will begin the first round.
    Solicitor General Kagan--and you can start the clock. 
Solicitor General Kagan, you spoke yesterday about your 
parents, children of immigrants, the first in their families to 
attend college. I was struck when you said that your mother did 
not learn English until she was ready to go to school, and I 
can--that was the same with my mother and my wife.
    Before we get to questions about the important role that 
the Supreme Court plays in American lives, do you want to share 
with us some additional thoughts about the values your parents 
taught you that put you on the path to teaching and law and 
public service? Because that may give us a better idea of who 
you are.
    Ms. Kagan. Gosh, Chairman Leahy, thank you for giving me 
that opportunity. That is a wonderful opportunity.
    My parents, of course, were--they were loving, wonderful 
parents, but they were also people who worked hard for their 
communities, and I think that is what I most took away from 
them, is the value of serving the communities that you live in 
and serving other people. And I guess I got a little bit from 
each side. My father, I said, was a lawyer. He was a lawyer for 
ordinary people. He was the kind of lawyer who, if you needed a 
will drawn up, he would draw up your will, and if you had 
problems on your taxes, he would help you with that. And then 
one of the things that he did quite a lot of was he helped 
tenants in New York City. The neighborhood we lived in was in 
the process of some change as I was growing up, and many people 
were sort of being forced out of their homes. And he made it 
really part of his legal work to ensure that either they could 
stay in their homes, or at least if they did need to move to 
another neighborhood, they could take something with them to 
establish a good life there.
    And he was also a person who spent an enormous amount of 
time thinking about that neighborhood. He was involved in lots 
of community boards and citizen groups of various kinds, 
thinking about environmental projects and land use projects. He 
really treated that neighborhood of New York City as just--you 
know, he just so much cared about the welfare of it and poured 
his heart and soul into trying to improve it.
    And I think what I learned from him was just the value of 
public service, was just the value of doing what you can in 
your neighborhood or in your Nation or wherever you can find 
that opportunity to help other people and to serve the Nation. 
So that is what I most took away from my father.
    My mother was--I said yesterday she was a kind of legendary 
teacher. She died only a couple of years ago, and my brothers 
and I, we expected a small funeral. We expected not very many 
people to attend. I do not have a large family. And instead, 
just tons and tons of people showed up, and we could not figure 
out who they all were. And it turned out that these people, who 
were then middle-aged, you know, 30-year-olds, 40-year-olds, 
whatever, they had had my mother as a sixth grade teacher 
decades ago, and they were people who just wanted to come and 
pay their respects because--they kept on coming up to me and my 
brothers and saying, ``At the age of 12, your mother taught me 
that I could do anything.'' And she was really demanding. She 
was a really tough teacher. You know, it was not--you did not 
slide by in Mrs. Kagan's class. But she got the most out of 
people, and she changed people's lives because of that.
    And if I look at my own career in this kind of strange way, 
not planned but in the sort of strange way, I think, you know, 
part of my life is my father and part of my life is my mother, 
that part of my life has been in public service. I have been 
really blessed with the opportunities I have had to work in 
Government and to serve this Nation. And then part of my life 
is teaching, which I take enormous pleasure and joy from. I am 
looking over your right shoulder--your left shoulder, right on 
my side, and there is a student of mine right there. And maybe 
there are some other students that are around the room. And it 
is a kind of great thing.
    Chairman Leahy. We are doing our best to make Jeremy blush.
    [Laughter.]
    Chairman Leahy. But, you know, these things that I--I mean, 
each one of us, I think, can speak about what our parents, what 
they brought to us, and it seems to me they gave you some 
pretty strong values. So that speaks about who you are as a 
person, and now we go to some of your legal abilities, and some 
have criticized your background or your legal arguments. They 
have even gone to what did you write on college papers.
    The Chairman of the Republican National Committee 
criticized you last month for agreeing with Justice Thurgood 
Marshall's observation that our Constitution, as originally 
drafted, was imperfect. The criticism surprised me because 
everything you read about the Founders, they knew that they 
would lay down something that would not cover every foreseeable 
thing. I mean, how could they possibly foresee what the country 
is today? They wrote in broad terms. They could not foresee 
every challenge.
    So what is your response to this criticism of you that was 
made because you agreed with Justice Marshall? How would you 
describe the way the Constitution has been amended since it was 
originally drafted?
    Ms. Kagan. Well, Chairman Leahy, the Framers were 
incredibly wise men, and if we always remember that, we will do 
pretty well, because part of their wisdom was that they wrote a 
Constitution for the ages. And this was very much in their 
mind. This was part of their consciousness. You know, even that 
phrase that I quoted yesterday from the Preamble of the 
Constitution, I said the Constitution was ``to secure blessings 
of liberty.'' I did not quote the next part of that phrase. It 
said ``blessings of liberty for themselves and their 
posterity.'' So they were looking toward the future. They were 
looking generations and generations and generations ahead and 
knowing that they were writing a Constitution for all that 
period of time, and that circumstances and that the world would 
change, just as it had changed in their own lives very 
dramatically. So they knew all about change.
    And they wrote a Constitution, I think, that has all kinds 
of provisions in it, so there are some that are very specific 
provisions. It just says what you are supposed to do and how 
things are supposed to work. So it says to be a Senator, you 
have to be 30 years old, and that just means you have to be 30 
years old. And it does not matter if people mature earlier, and 
it does not matter if people's life spans change. You just have 
to be 30 years old because that is what they wrote and that is 
what they meant and that is what we should do.
    But there are a range of other kinds of provisions in the 
Constitution of a much more general kind, and those provisions 
were meant to be interpreted over time, to be applied to new 
situations and new factual contexts. So the Fourth Amendment is 
a great example of this. It says, ``There shall be no 
unreasonable searches and seizures.'' Well, what is 
unreasonable? That is a question.
    The Framers could have given like a whole primer on police 
practices, you know, which searches were reasonable and which 
searches were not reasonable and lots of different rules for 
saying that. But they did not do that. And I think that they 
did not do that because of this incredible wisdom that they had 
that they knew that the world was going to change and that--you 
know, they did not live with bomb-sniffing dogs and with heat-
detecting devices.
    Chairman Leahy. And computers and----
    Ms. Kagan. And companies and all these questions that 
judges, courts, everybody is struggling with--police--in the 
Fourth Amendment context.
    And I think that they laid down--sometimes they laid down 
very specific rules. Sometimes they laid down broad principles. 
Either way we apply what they say, what they meant to do. So in 
that sense, we are all originalists.
    Chairman Leahy. And we also have made changes, and the Bill 
of Rights, my own State of Vermont did not join the Union until 
they saw that the Bill of Rights was going to be ratified. We 
did the 19th Amendment, the expansion of votes for women; the 
26th Amendment allowing 18-year-olds to vote. We have seen some 
major changes over the years.
    Yesterday I talked about how the Supreme Court interprets 
Plessy v. Ferguson. It was overruled by Brown v. Board of 
Education, the same Constitution. But people realized how 
changes are in society. I cannot imagine anybody saying we 
should go back to Plessy v. Ferguson because that was decided 
first.
    I do recall you being a special counsel with Senator Biden 
on this Committee during a Supreme Court confirmation hearing. 
I was here. I was a little bit further down the row at the 
time. But you wrote a law review article and book review after 
in which you argued that these proceedings should be occasions 
to engage in a meaningful discussion of legal issues.
    Now, you set the standard. You probably reread those 
words----
    Ms. Kagan. Many times.
    [Laughter.]
    Chairman Leahy. I will bet. I will bet. As have it, and I 
guarantee you, as have every single member of this Committee.
    Ms. Kagan. And you know what? They have been read to me 
many times, too.
    [Laughter.]
    Chairman Leahy. And probably will again.
    How are you going to live up to that standard?
    Ms. Kagan. Senator Leahy, before I answer that question, 
may I say a little bit more about what you started with about 
constitutional changes?
    Chairman Leahy. Sure.
    Ms. Kagan. Just to show my commitment to being open. All 
right?
    Chairman Leahy. Go ahead.
    Ms. Kagan. But you said something which just sort of 
triggered a thought in me, and I just wanted to--as you said, 
there are all these many changes that have happened to the 
Constitution, and I think it is important to realize that those 
changes do come in sort of two varieties. One is the formal 
amendment process, and I think it was Senator Cornyn yesterday 
who talked about the formal amendment process, and that is 
tremendously important.
    So, you know, when Thurgood Marshall said that this was a 
defective Constitution, you know, he was talking about the fact 
that this was a Constitution that counted slaves as three-
fifths of a human being, that did not do anything about that 
original sin of our country. And the 14th amendment changed 
that. The 14th Amendment was an enormous break after the Civil 
War, and it created a different Constitution for America. So 
partly the changes come in that way.
    But partly they come outside the formal amendment process 
as well, and what you said about Plessy and Brown is absolutely 
right, that if you look at the specific intent of the drafters 
of the 14th Amendment, they thought that the 14th Amendment was 
perfectly consistent with segregated schools. I mean, you just 
have to--you cannot really argue otherwise as a historical 
matter. But in Brown, the Court said otherwise, and, you know, 
step by step by step, decision by decision, in large part 
because of what Justice Marshall did, you know, we got to a 
place where the Court said it is inconsistent with the 
principle of equal protection of the laws that the drafters of 
the 14th Amendment laid down. It is inconsistent with that 
principle to have segregated schools. So that is a way in which 
change can happen as well.
    Now, to go to your real question--and I apologize for that 
digression. I have looked at that book review many times and 
been pointed to it, and here is what I think: I still think 
that the basic points of that book review were right, and the 
basic points were that the Senate has a very significant role 
to play in picking Supreme Court Justices, that is important 
who serves on the Supreme Court, that everybody should treat it 
as important, and that the Senate should--has a constitutional 
responsibility and should take that constitutional 
responsibility seriously, and also that it should have the 
information it needs to take that responsibility seriously, and 
part of that is getting some sense, some feel of how a nominee 
approaches legal issues, the way they think about the law, and 
I guess that is my excuse for giving you a little bit more even 
than you wanted about constitutional change. But I would say 
that there are limits on that.
    Now, some of the limits I talked about in that article 
itself. I mean, that article makes very clear that it would be 
inappropriate for a nominee to talk about how she will rule on 
pending cases or on cases beyond that that might come before 
the Court in the future. So the article was very clear about 
that line.
    Now, when I came before this Committee in my SG hearing, 
Senator Hatch and I had some conversation because Senator Hatch 
said to me--and I am sorry he is not here. He said to me he 
thought that I had the balance a little bit off. He said, you 
know, in addition--he basically said it is not just that people 
can ask you about cases that come before the Court; they can 
ask you a range of questions that are a little bit more veiled 
than that, but they are really getting at the same thing. And 
if it is not right to say how you would rule on a case that is 
going to come before the Court, or that might, then it is also 
not right to ask those kinds of questions, which essentially 
ask you the same thing without doing so in so many words.
    And I went back and forth a little bit with Senator Hatch, 
both in these hearings and on paper, and I basically said to 
Senator Hatch that he was right, that I thought that I did have 
the balance a little bit off and that I skewed it too much 
toward saying that answering is appropriate even when it would, 
you know, provide some kind of hints. And I think that that was 
wrong. I think that in particular it would not be appropriate 
for me to talk about what I think about past cases, you know, 
to grade cases, because those cases themselves might again come 
before the Court.
    Chairman Leahy. Well, actually that would go into another 
area. You have been Solicitor General. You have argued a number 
of cases before the Supreme Court. The last person nominated 
directly to the Supreme Court not from a judgeship but from the 
administration was when Justice Rehnquist was working for the 
Nixon administration and went directly to the Supreme Court. 
And then, I was not in the Senate at that time, but I was there 
when he was being nominated for Chief Justice, and I asked him 
about his refusal to recuse himself from a case called Laird v. 
Tatum. The Laird case involved the Nixon administration's 
surveillance of Americans.
    As the Justice Department's legal expert when he was 
working with the Justice Department for the Nixon 
administration, he testified before Congress about that case, 
but then after his confirmation, he was part of a five-Justice 
majority in the very case in which he had testified, and he 
voted to dismiss the complaint alleging unlawful surveillance 
of lawful citizens' political activity.
    Now, I realize Supreme Court Justices have to make up their 
own mind. I went back and forth with Justice Scalia about some 
things about his relationship with a former Vice President and 
then ruling on cases involving him. I regularly ask questions 
of nominees, not just to the Supreme Court but for other 
courts, about potential recusals. Now, Senator Sessions and I 
sent you a questionnaire, and in that we had the question of 
recusal, and you answered it. It appears to me you take this 
very seriously.
    Tell me about what principles are you going to use to make 
recusal decisions, if you can do it just briefly, but then tell 
us some of the cases where you anticipate you are going to have 
to recuse.
    Ms. Kagan. Senator Leahy, I think certainly as I said in 
that questionnaire answer that I would recuse myself from any 
case in which I have been counsel of record at any stage of the 
proceedings, in which I have signed any kind of brief. And I 
think that there are probably about ten cases--I have not 
counted them up particularly, but I think that there are 
probably about ten cases that are on the docket next year in 
which that is true, in which I have been counsel of record on a 
petition for certiorari or some other kind of pleading. So that 
is a flat rule.
    In addition to that, I said to you on the questionnaire 
that I would recuse myself in any case in which I have played 
any kind of substantial role in the process. I think that that 
would include--I am going to be a little bit hesitant about 
this because one of the things I would want to do is talk to my 
colleagues up there and make sure that this is what they think 
is appropriate, too. But I think that that would include any 
case in which I have officially formally approved something. So 
one of the things that the Solicitor General does is approve 
appeals or approve amicus briefs to be filed in lower courts or 
approve interventions.
    Chairman Leahy. I wish you would look seriously at that. I 
was really shocked by former Chief Justice Rehnquist's position 
on the Laird case. I thought that was almost an open-and-shut 
question for recusal. The reason I mention it, the Supreme 
Court also has to have the respect of the American people, and 
certainly people can expect the Supreme Court to rule on some 
cases where they may or may not agree with them. But so long as 
you have respect for the Court, then they will understand that. 
If they see Justices involved in cases in which they had a 
financial interest, which seems pretty clear-cut, or other 
direct interests and then they rule on them, you can imagine 
this erodes the credibility of the Court. And I am very 
concerned about that no matter whether it is a Republican 
President's nominee or a Democratic President's nominee.
    Two years ago, in District of Columbia v. Heller, the 
Supreme Court held the Second Amendment guarantees to Americans 
the individual right to keep and bear arms. I am a gun owner, 
as are many people in Vermont, and I agreed with the Heller 
decision. And just yesterday in McDonald v. the City of 
Chicago, the Court decided the Second Amendment right 
established in Heller is a fundamental right that applies to 
the States as well as the Federal Government.
    Now, that is not going to have any effect one way or the 
other in Vermont because we do not have gun laws in Vermont 
except during hunting season. We try to give the deer a 
fighting chance. But, otherwise, there are no rules.
    Is there any doubt after the Court's decision in Heller and 
McDonald that the Second Amendment to the Constitution secures 
a fundamental right for an individual to own a firearm, use it 
for self-defense in their home?
    Ms. Kagan. There is no doubt, Senator Leahy. That is 
binding precedent entitled to all the respect of binding 
precedent in any case. So that is settled law.
    Chairman Leahy. As Solicitor General, did you have a role 
in the President's domestic or foreign policy agenda?
    Ms. Kagan. The Solicitor General does not typically take 
part in policy issues, and certainly--the only policy issues I 
think that I might have taken part in--and these are policy 
issues that would only overlap with litigation issues or some 
national security issues. But, otherwise, you know, the 
Solicitor General really is a legal officer.
    Chairman Leahy. And if you were, though, involved in the 
domestic or foreign policy agenda, would that not be something 
that you would want to consider and issue a recusal? I mean, 
you mentioned national security issues, for example.
    Ms. Kagan. Right. I think that anything that I 
substantially participated in as a Government official that is 
coming before the Court, I should take very seriously, as you 
say, the appropriateness of recusal.
    Chairman Leahy. Now, I know that when Chief Justice Roberts 
and Justice Alito were before this Committee for their 
nomination hearings--they had worked for Republican 
Presidents--they assured Senators that as lawyers for a 
Presidential administration they were representing the views of 
the President. All my friends on this side of the aisle thought 
that was fine, and the reason I mention that is I was concerned 
that some were saying almost a different standard, because back 
a number of years ago you worked for the Clinton 
administration.
    Would you agree with Chief Justice Roberts and Justice 
Alito that as a lawyer working for a Presidential 
administration the policies you worked to advance were the 
views and policies of the President for whom you worked?
    Ms. Kagan. Absolutely, Senator Leahy. I worked for 
President Bill Clinton, and we tried to implement his policy 
views and objectives.
    Chairman Leahy. Now, let me ask you this: We have heard 
talk about Harvard Law School and military recruiting when you 
were dean, and by enforcing the longstanding non-discrimination 
policy, you had provided military recruiters with access to 
students coordinated by the Harvard Law Veterans Association 
had been successfully used for years under your predecessor, 
Dean Clark, with the approval of military recruiters and the 
Department of Defense.
    Did you ever bar recruiters for the U.S. military from 
access to students at Harvard Law School while you were dean?
    Ms. Kagan. Senator Leahy, military recruiters had access to 
Harvard students every single day I was dean.
    Chairman Leahy. Well, let me ask you this: When you were 
there, did the number of students recruited go down at all 
while you were dean?
    Ms. Kagan. I do not believe it did, Senator Leahy, so I am 
confident that the military had access to our students and our 
students had access to the military throughout my entire 
deanship, and that is incredibly important because the military 
should have the best and brightest people it can possibly have 
in its forces. And I think, you know, I said on many, many 
occasions that this was a great thing for our students to think 
about doing in their lives, that this is the most important and 
honorable way any person can serve his or her country.
    Chairman Leahy. It has always been my experience also that 
if somebody wants to join the military, they usually are pretty 
motivated to join the military. My youngest son joined the 
Marine Corps out of high school. There were not recruiters on 
the high school campus, but he was able to find where the 
recruiter was in downtown Burlington and walked over there and 
signed up. My wife and I were very proud of him for doing that. 
But here there has been this implication given--that is why I 
want you to clear this up--that somehow military recruiters 
could not recruit Harvard students. That was not the case. Is 
that correct?
    Ms. Kagan. That was not the case, Senator Leahy. The only 
question that ever came up, as you stated earlier, this was a 
balance for the law school because, on the one hand, we wanted 
to make absolutely sure that our students had access to the 
military at all times, but we did have a very longstanding--
going back to the 1970s--anti-discrimination policy which said 
that no employer could use the Office of Career Services if 
that employer would not sign a non-discrimination pledge that 
applied to many categories--race and gender and sexual 
orientation and actually veteran status as well. And the 
military could not sign that pledge.
    Chairman Leahy. Because of ``Don't ask, don't tell'' ?
    Ms. Kagan. Because of the ``Don't ask, don't tell'' policy.
    Chairman Leahy. Which the Chairman of the Joint Chiefs of 
Staff now says should be repealed.
    I read a speech you gave to graduates of West Point 3 years 
ago. You said that military service is the noblest of all 
professions, and those cadets serve their country in this most 
important of all ways. That does not sound very anti-military 
to me. Tell me why you said that, what you did at West Point.
    Ms. Kagan. Well, I said it because I believe it. I was so 
honored to be invited to West Point. They have a mandatory part 
of their curriculum that all students take a constitutional law 
course, and they invite a person each year to talk to the 
students about any legal subject. And it was really the 
greatest honor I think I have ever gotten to be asked to be 
that person. And I went up and I talked to the West Point 
students and faculty about something that I talked about 
yesterday, really, which was about the rule of law and about 
how it applied in the military context. And I was--I love that 
institution, the faculty and the students there. It was an 
incredible experience for me.
    But, you know, in addition, I mean, I tried in every way I 
could to make clear to the veterans of the military at Harvard 
Law School and people who were going to go into the military 
how much I respected their service, how much I thought that 
they were doing the greatest thing that anybody could do for 
their country.
    Chairman Leahy. Well, I tend to agree. I know we felt that 
way, my wife and I felt that way about our son. We worried 
about him in the Marine Corps, but we were so proud of what he 
was doing.
    In fact, speaking of Marines, I read a May 21 Washington 
Post op-ed from Robert Merrill. He is a captain in the U.S. 
Marine Corps. He is a 2008 Harvard Law graduate. He is serving 
as a legal adviser to a Marine infantry battalion in southern 
Afghanistan, and I have been to that part of Afghanistan with 
our troops. It is not an easy place to be. He writes, ``If 
Elena Kagan is anti-military, she certainly didn't show it. She 
treated the veterans at Harvard like VIPs. She was a fervent 
advocate of our veterans association.''
    He also writes, ``I received perhaps the most thoughtful 
thanks of all just before graduating from Harvard Law School. 
The supposedly anti-military Elena Kagan sent me a handwritten 
note thanking me for my military service and wishing me luck in 
my new life as a Judge Advocate.''
    I want to thank you for doing that, too, and I will put in 
the record Captain Merrill's op-ed.
    [The op-ed appears as a submission for the record.]
    Ms. Kagan. Senator Leahy, this has been a sort of long 
process, this process, and sometimes an arduous one. I have 
only cried once during this process, and I cried when I woke up 
one morning and I read that op-end from Captain Merrill, that 
it meant just an enormous amount to me. He is a magnificent man 
doing great things for our country, and his praise meant more 
to me than anybody's.
    Chairman Leahy. Well, I have not met him, but I was very 
touched by it.
    Senator Sessions.
    Senator Sessions. Thank you, Mr. Chairman, and I value our 
relationship, and we have disagreed over documents and a few 
things. But I believe you tried to handle this Committee in a 
fair way, and nobody has had more experience at it, and 
fundamentally I hope that we have, Dean Kagan, a good hearing. 
I hope that you can feel free to tell us precisely how you 
think so we can evaluate what you might be like on the bench. 
We can have brilliant and wonderful people, but if their 
approach to judging is such that I think allows them not to be 
faithful to the law, to not be able to honor that oath, which 
is to serve under the Constitution and laws of the United 
States, then we have got a problem. And I do not think that is 
judging. I think that becomes politics or law or something 
else. And so I would say that to you. I look forward to all of 
our members asking a number of questions to probe how you will 
approach your judgeship.
    Let me ask you this----
    Chairman Leahy. Incidentally, thank you for those kind 
words.
    Senator Sessions. Thank you, Mr. Chairman, and I meant 
that.
    One thing before I get started, I would like to ask about 
your discussion of constitutional change earlier. You indicated 
that there is an amendment process in the Constitution. There 
are two ways to do so in the Constitution. Is there any other 
way than those two ways that the Constitution approved to 
change the Constitution?
    Ms. Kagan. Well, Senator Sessions, the Constitution is an 
enduring document. The Constitution is the Constitution. And 
the Constitution does not change except by the amendment 
process. But as I suggested to Chairman Leahy, the Constitution 
does over time, where courts are asked to think about how it 
applies to new sets of circumstances, to new problems, the 
things that the Framers never dreamed of. And in applying the 
Constitution case by case by case to new circumstances, to 
changes in the world, the constitutional law that we live under 
does develop over time.
    Senator Sessions. Well, developing is one thing, and many 
of the provisions, as you noted, they are not specific, but 
they are pretty clear, I think, but not always specific. But 
you are not empowered to alter that document and change its 
meaning. You are empowered to apply its meaning faithfully in 
new circumstances. Wouldn't you agree?
    Ms. Kagan. I do agree with that, Senator Sessions. That is 
the point I was trying to make, however inartfully, that you 
take the Fourth Amendment and you say there is unreasonable 
searches and seizures, and that provision stays the same unless 
it is amended. That is the provision. And then the question is: 
What counts as an unreasonable search and seizure? And new 
cases come before the Court, and the Court tries to think 
about, to the extent that one can glean any meaning from the 
text itself, from the original intent, from the precedents, 
from the history, from the principles embedded in the 
precedent, and the Court sort of step by step by step, one case 
at a time, figures out what the Fourth--how the Fourth 
Amendment applies.
    Senator Sessions. Well, I do believe that there are some 
out there who think the Court really has an opportunity to 
update the Constitution and make it say what they would like it 
to say. I know we have seen a bit of a revival in the idea of 
the progressive legal movement that people in the early 20th 
century advocated views for changing America. They felt the 
Constitution often blocked them from doing that, and they were 
very aggressive in seeking ways to subvert or get around that 
Constitution.
    Your former colleague at the University of Chicago, Richard 
Epstein, said, ``Any constitutional doctrine that stood in the 
way of the comprehensive social or economic reforms''--he is 
referring to the progressives--''had to be rejected or 
circumvented.'' And he noted that, ``The progressive influence 
continues to exert itself''--he is talking about today--''long 
past the New Deal in modern Supreme Court decisions that 
address questions of federalism, economic liberties, and 
takings for public use.''
    I believe that is a dangerous philosophy. I believe that is 
a philosophy not justified by any judge on the Court. And I am 
worried about the trends. I think the American people are.
    Greg Craig, the former Chief Counsel to President Obama, 
who has known you for some time, I understand, said of you, 
``She is largely a progressive in the mold of Obama himself.''
    Do you agree with that?
    Ms. Kagan. Well, Senator Sessions, I am not quite sure how 
I would characterize my politics. But one thing I do know is 
that my politics would be, must be, have to be completely 
separate from my judging. And I agree with you to the extent 
that you are saying, look, judging is about considering a case 
that comes before you, the parties that come before you, 
listening to the arguments they make, reading the briefs they 
file, and then considering how the law applies to their case--
how the law applies to their case, not how your own personal 
views, not how your own political views might suggest, you 
know, anything about the case, but what the law says, whether 
it is the Constitution or whether it is a statute.
    Now, sometimes that is a hard question, what the law says, 
and sometimes judges can disagree about that question. But the 
question is always what the law says. And if it is a 
constitutional question, it is what the text of the 
Constitution says, it is what the history says, the structure, 
precedent, but what the law says, not what a judge's personal 
views----
    Senator Sessions. Well, I agree, but the point I was just 
wanting to raise with you is that this idea, this concept of 
legal progressivism is afoot. I notice E.J. Dionne in 
yesterday's Washington Post had an article, started off the 
second paragraph saying, ``Democratic Senators are planning to 
put the right of citizens to challenge corporate power at the 
center of their critique of an activist conservative judging, 
offering a case that has not been fully aired since the great 
Progressive Era Justice Louis Brandeis.'' And I think we do 
have this national discussion going on about a revival of 
progressivism.
    Let me ask you about this: Vice President Biden's Chief of 
Staff Ron Klain, who served as Chief Counsel of this Committee, 
a skilled lawyer, was Chief of Staff to Vice President Gore, 
also, I believe, who has known you for a number of years, said 
this about you: ``Elena Kagan is clearly a legal progressive. I 
think Elena is someone who comes from the progressive side of 
the spectrum. She clerked for Judge Mikva, clerked for Justice 
Marshall, worked in the Clinton administration, in the Obama 
administration. I do not think there is any mystery to the fact 
that she is. As I said, more progressive role than not.''
    Do you agree with that?
    Ms. Kagan. Senator Sessions, it is absolutely the case that 
I have served in two democratic administrations, and I think--
--
    Senator Sessions. No, but I am asking, do you agree with 
the characterization that you are a legal progressive?
    Ms. Kagan. Senator Sessions, I honestly do not know what 
that label means. I have worked in two Democratic 
administrations. Senator Graham suggested yesterday--and I 
think he is right--that you can tell something about me and my 
political views from that. But as I suggested to you, my 
political views are one thing, and the way----
    Senator Sessions. Well, I agree with you, exactly, that you 
should not be condemned for being a political believer and 
taking part in the process and having views. But I am asking 
about his firm statement that you are a legal progressive, 
which means something. I think he knew what he was talking 
about. He is a skilled lawyer. He has been in the midst of the 
great debates of this country about law and politics, just as 
you have. And so I ask you again, do you think that is a fair 
characterization of your views? Certainly you do not think he 
was attempting to embarrass you or hurt you in that process, do 
you?
    Ms. Kagan. I love my good friend Ron Klain, but I guess I 
think that people should be allowed to label themselves, and 
that is--you know, I do not know what that label means, and so 
I guess I am not going to characterize it one way or the other.
    Senator Sessions. I would just say, having looked at your 
overall record, having considered those two people who know you 
very well, I would have to classify you as someone in the theme 
of the legal progressive.
    Now, one of the things that we want to test, I guess, is 
your willingness to follow the law even if you might not agree 
with it. And Senator Leahy has asked you about Harvard and the 
military. Isn't it true, isn't it a fact that Harvard had full 
and equal access to the recruiting office, the Office of Career 
Services, when you became dean?
    Ms. Kagan. Senator Sessions, the military had full access 
to our students at all times, both before I became dean and 
during my----
    Senator Sessions. That is not the question. I know that----
    Chairman Leahy. Let her answer the question.
    Senator Sessions. All right. But, you know, it--go ahead.
    Ms. Kagan. So the history of this is Harvard did have this 
anti-discrimination principle, and for many, many years, my 
predecessor, who was Bob Clark, had set up a system to ensure 
military access, but also to allow Harvard to comply with its 
anti-discrimination policy, which prohibited the Office of 
Career Services from providing assistance to employers that 
could not sign the anti-discrimination pledge. And the 
accommodation that Bob worked out was that the veterans 
organization would instead sponsor the military recruiters. So 
the only thing that was at issue was essentially the sponsoring 
organization, whether it was the Office of Career Services or 
instead the student veterans organization.
    Senator Sessions. Please let me follow up on that. But on 
August 26th of 2002, Dean Clark, your immediate predecessor, 
acquiesced when Harvard's financing had been threatened by the 
Federal Government for failure to comply with the law, which 
requires not just access but equal access to the offices on 
campus. He replied in this fashion to the Government: ``This 
year and in future years, the law school will welcome the 
military to recruit through the Office of Career Services.'' So 
that was the rule when you took office, was it not?
    Ms. Kagan. It was the rule when I took office, and it 
remained the rule after I took office. For many years, DOD, the 
Department of Defense, had been very----
    Senator Sessions. Well, not for many years--how many--well, 
go ahead.
    Ms. Kagan. For a number of years, for a great number of 
years, the Department of Defense had been very accepting, had 
approved the accommodation that we had worked out.
    You are quite right that in 2002 DOD came to the law school 
and said, ``Although this accommodation has been acceptable to 
us so far, it is not acceptable any longer, and instead we want 
the official Office of Career Services assistance.''
    Senator Sessions. But before--and Harvard acquiesced and 
agreed to do so.
    Ms. Kagan. And Dean Clark agreed to do so, and that 
continued----
    Senator Sessions. On a direct threat of cutting off of 
funds, and otherwise he indicated in his statement he would not 
have done so.
    Now, when you became dean, you personally opposed the 
``Don't ask, don't tell'' policy and felt strongly about it, 
did you not?
    Ms. Kagan. I do oppose the ``Don't ask, don't tell'' 
policy.
    Senator Sessions. And you did then.
    Ms. Kagan. And I did then.
    Senator Sessions. And in 2003, not long after you became 
President, you said, ``I abhor the military's discrimination 
recruitment policy. I consider it a profound wrong, a moral 
injustice of the first order.'' And you said that within 6 
months or so of becoming dean, and that was an e-mail you sent 
to the entire law school.
    Ms. Kagan. Senator Sessions, I have repeatedly said that I 
believe that the ``Don't ask, don't tell'' policy is unwise and 
unjust. I believed it then and I believe it now. And we were 
trying to do two things. We were trying to make sure that 
military recruiters had full and complete access to our 
students, but we were also trying to protect our own anti-
discrimination policy and to protect the students whom it is--
whom the policy is supposed to protect, which in this case were 
our gay and lesbian students. And we tried to do both of those 
things.
    Senator Sessions. Well, you could not do both, as it became 
clear as time went on. In fact, there was a protest on campus 
the next year, and you participated in that protest and spoke 
out saying, ``I am very opposed to two Government policies that 
directly violate our policy of non-discrimination and directly 
impact our students. The first is `Don't ask, don't tell': the 
second one is the Solomon amendment, which effectively forces 
educational institutions to make exceptions to their non-
discrimination policy.''
    So you sent that out to the--you said that at that meeting. 
And in addition to that, a lawsuit was filed in a distant 
circuit, the Third Circuit, and you participated in a filing of 
a brief attacking the ``Don't ask, don't tell'' policy. Is that 
correct?
    Ms. Kagan. Senator Sessions, that is not quite correct. The 
lawsuit itself brought a constitutional challenge to the 
``Don't ask''--to the Solomon amendment. We did not participate 
in that challenge. What the brief that I filed did do was to 
argue, try to argue that Harvard's accommodation, which 
allowed--which, you know, welcomed the military on campus, but 
through our veterans organization, we tried to argue that that 
accommodation was consistent with the Solomon amendment, and 
that is what we argued to the Third Circuit.
    Senator Sessions. Well, and they eventually--the Supreme 
Court did not agree with that. But after the Third Circuit 
ruled 2-1 questioning the constitutionality of the statute, you 
immediately, the very next day, changed the policy at Harvard 
and barred the military from the Office of Career Services, the 
equal access the Solomon amendment had required. Is that 
correct?
    Ms. Kagan. Senator Sessions, after the Third Circuit ruled 
the Solomon amendment unconstitutional--and the Third Circuit 
was the only appellate court to have issued a decision on that 
question and did rule the Solomon Amendment unconstitutional--I 
thought it appropriate at that point to go back to what had 
been the school's longstanding policy, which had been to 
welcome the military onto the campus but through the auspices 
of the veterans organization rather than through the auspices 
of our Office of Career Services.
    Senator Sessions. Well, the veterans were not interested in 
taking on that burden, and that was not the equal access that 
the Solomon amendment, which I worked on to pass, required. 
Congress frankly was very frustrated at the law schools. We 
passed four or five versions of the Solomon amendment to get 
around every maneuver that occurred on the campuses.
    Now, isn't it a fact that the mandate or the injunction, 
never issued by the Third Circuit, that the Third Circuit 
holding did not apply to Harvard at the time you stopped 
complying with the Solomon amendment? And isn't it a fact that 
you were acting in violation of Harvard's agreement and the law 
when you reversed policy?
    Ms. Kagan. Senator Sessions, we were never out of 
compliance with the law. Nobody ever suggested that Harvard 
should be sanctioned in any way. The only question was whether 
Harvard should continue--had continued to remain eligible for 
Federal funding. And after DOD came to us and after DOD told us 
that it wanted law schools to essentially ignore the Third 
Circuit decision, that it wanted--that it was going to take 
that decision to the Supreme Court and that it wanted law 
schools to continue to do what they had been doing, we did 
change back. We did precisely what DOD asked us to do, and DOD 
never withheld----
    Senator Sessions. Well, you did not, Ms. Kagan. You did not 
do what the DOD asked you to do. Just answer this--put your 
legal hat on for a second. The Third Circuit opinion never 
stayed the enforcement of the Solomon amendment at Harvard, did 
it? Did that law remain in effect?
    Ms. Kagan. Senator Sessions, the question was----
    Senator Sessions. No, that is my question to you. Did the 
law remain in effect at all times at Harvard?
    Ms. Kagan. The Solomon amendment remained in effect, but we 
had always thought that we were acting in compliance with the 
Solomon amendment, and for many, many years, DOD agreed with 
us.
    After the Third Circuit, I thought it was appropriate to go 
back to our old policy, which previously DOD had thought 
complied with the Solomon Amendment. When DOD came to us and 
said, no, the Third Circuit really has not changed matters 
because we are going to take this to the Supreme Court and we 
want law schools really to ignore what the Third Circuit said, 
DOD and we had some discussions, and we went back to doing it 
exactly the way DOD wanted to. In the interim----
    Senator Sessions. Well, let us get more basic about it. The 
military--you stopped complying, and that season was lost 
before the military realized--frankly, you never conveyed that 
to them in a straight-up way like I think you should have. You 
just started giving them a run-around. The documents we have 
gotten from the Department of Defense say that the Air Force 
and the Army says they were blocked, they were stonewalled, 
they were getting the run-around from Harvard. By the time they 
realized that you had actually changed the policy, that 
recruiting season was over, and the law was never not in force.
    I feel like you mishandled that. I am absolutely confident 
you did. But you continued to persist with this view that 
somehow there was a loophole in the statute that Harvard did 
not have to comply with after Congress had written a statute 
that would be very hard to get around. What did the Supreme 
Court do with your brief? How did they vote on your brief 
attacking the effectiveness of the Solomon amendment to assure 
equal access at Harvard?
    Ms. Kagan. Senator Sessions, if I might, you had suggested 
that the military lost a recruiting season, but, in fact, the 
veterans organization did a fabulous job of letting all our 
students know that the military recruiters were going to be at 
Harvard during that recruiting season, and military recruiting 
went up that year, not down.
    Now, you are exactly right that the Supreme Court did 
reject our amicus brief. Again, we filed an amicus brief not 
attacking the constitutionality of the Solomon amendment, but 
instead saying that essentially the Harvard policy complied 
with the Solomon amendment. The Supreme Court rejected it 9-0, 
unanimously.
    Senator Sessions. But even before that, the military said 
the law was still in effect, Harvard had no right to get around 
it, and they should comply even before the Supreme Court issued 
a ruling, and they had to contact the university's counsel and 
the president, Mr. Larry Summers, and Mr. Summers agreed that 
the military should have full and equal access before even the 
Supreme Court ruled, but after you had denied equal access. 
Isn't that right?
    Ms. Kagan. Senator Sessions, we had gone back and done 
exactly what the Department of Defense had asked us to do prior 
to the time that the Supreme Court ruled. We had done it----
    Senator Sessions. Wait a minute. You asked them--what they 
asked you to do after the Third Circuit ruled, you denied them 
access. They had to insist and demand that they have equal 
access because the law was still in effect. You did not agree 
to that. You had reversed that policy, and the president of the 
university overruled your decision. According to internal DOD 
documents, they say that President Summers agreed to reverse 
the policy, the dean remains opposed.
    Ms. Kagan. Senator Sessions, Larry Summers and I always 
worked cooperatively on this policy. I did not ever do anything 
that he did not know about, and he never did anything that I 
did not approve of. With respect to the decision that you are 
talking about, this was a joint decision that Larry and I made 
that because DOD thought that what we were doing was 
inappropriate, we should, in fact, reverse what we had done. 
You know, that period lasted for a period of a few months in my 
6-year deanship, and long before the Supreme Court issued its 
ruling in the FAIR v. Rumsfeld case, we were doing exactly what 
DOD asked us to do.
    Senator Sessions. So it is your testimony that the decision 
you made immediately after the Third Circuit opinion, you 
concluded was inappropriate, you and President Summers, and you 
reversed that policy later?
    Ms. Kagan. Senator Sessions, what I did after the Third 
Circuit decision was to say, look, the only appellate court to 
have considered this question has struck down the statute. We 
have always thought that our policy was in compliance with the 
statute. The appropriate thing for me to do, really the 
obligation that I owed to my school and its longstanding 
policy, was to go back to our old accommodation policy which 
allowed the military full access, but through the veterans 
organization. When DOD came to us and said that it thought that 
that was insufficient, that it wanted to essentially ignore the 
Third Circuit decision, because it was taking it up to the 
Supreme Court, when they came back to us, we went through a 
discussion of a couple of months and made a decision to do 
exactly what DOD wanted.
    Senator Sessions. Well, you did what DOD wanted when they 
told the president and the counsel for the university they were 
going to lose some $300 million if Dean Kagan's policy was not 
reversed. Isn't that a fact?
    Ms. Kagan. Senator Sessions, we did what DOD asked for 
because we have always, you know, tried to be in compliance 
with the Solomon amendment, thought that we were. When DOD--DOD 
had long held that we were. When DOD came back to us and said, 
``No, notwithstanding the Third Circuit decision, we maintain 
our insistence that you are out of compliance with the Solomon 
amendment,'' we said OK.
    Senator Sessions. Well, in fact, you were punishing the 
military. The protest that you had, that you spoke to on 
campus, was at the very time in the next building or one or two 
buildings nearby, the military were meeting there. Some of the 
military veterans, when they met with you the first time, 
expressed concern about an increasingly hostile atmosphere on 
the campus against the military. Didn't they express that to 
you?
    Ms. Kagan. Senator Sessions, I think, as I said to Senator 
Leahy, that I tried in every way I could throughout this 
process to make clear to all our students, not just to the 
veterans but to all our students, how much I valued their 
service and what an incredible contribution I thought that they 
made to the school. I----
    Senator Sessions. I do not deny that you value the 
military. I really do not. But I do believe that the actions 
you took helped create a climate that was not healthy toward 
the military on campus.
    But let me ask you this: You keep referring in your e-mails 
and all to the military policy. Isn't it a fact that the policy 
was not the military policy but a law passed by the Congress of 
the United States, those soldiers may have come back from Iraq 
or Afghanistan, they were appearing to recruit on your campus, 
were simply following the policy of the U.S. Congress 
effectuated by law, not their idea, and that you were taking 
steps to treat them in a second-class way, not give them the 
same equal access because you deeply opposed that policy. Why 
wouldn't you complain to Congress and not to the dutiful men 
and women who put their lives on the line for America every 
day?
    Ms. Kagan. Senator Sessions, you are, of course, right that 
the Solomon amendment is law passed by Congress, and we never 
suggested that any members of the military, you know, should be 
criticized in any way for this. Quite to the contrary, you 
know, I tried to make clear in everything I did how much I 
honored everybody who was associated with the military on the 
Harvard Law School campus. All that I was trying to do was to 
ensure that Harvard Law School could also comply with its anti-
discrimination policy, a policy that was meant to protect all 
the students of our campus, including the gay and lesbian 
students who might very much want to serve in the military, who 
might very much want to do that most honorable kind of service 
that a person can do for her country.
    Senator Sessions. Well, I would think that that is a 
legitimate concern, and people can disagree about that, and I 
respect your view on that. What I am having difficulty with is 
why you would take the steps of treating the military in a 
second-class way, to speak to rallies, to send out e-mails, to 
immediately without legal basis--because the Solomon Amendment 
was never at any time not in force as a matter of law--why you 
would do all those things simply to deny what Congress 
required, that they have equal access as anyone else?
    Ms. Kagan. Senator, the military at all times during my 
deanship had full and good access. Military recruiting did not 
go down. Indeed, in a couple of years, including the year that 
you are particularly referring to, it went up, and it went up 
because we ensured that students would know that the military 
recruiters were coming to our campus, because I talked about 
how important military service was, because our veterans 
organization and the veterans on campus did an absolutely 
terrific job, a terrific service to their fellow students in 
talking to them about the honor of military service.
    Senator Sessions. Well, I would just say, while my time is 
running down, I am just a little taken aback by the tone of 
your remarks because it is unconnected to reality. I know what 
happened at Harvard. I know you were an outspoken leader 
against the military policy. I know you acted without legal 
authority to reverse Harvard's policy and deny the military 
equal access to campus until you were threatened by the U.S. 
Government of loss of Federal funds. This is what happened. 
It----
    Chairman Leahy. The Senator's time has expired, but----
    Senator Sessions.--is surprising to me----
    Chairman Leahy.--you can respond to that if you want.
    Senator Sessions.--that it did not happen in that way, and 
I think if you had any complaint, it should have been made to 
the U.S. Congress, not to those men and women who we send in 
harm's way to serve our Nation.
    Chairman Leahy. Especially because of the number of people, 
including the dean of West Point, who has praised you and said 
that you are absolutely not anti-military, I will let you 
respond, take time to respond to what Senator Sessions just 
said.
    Ms. Kagan. Well, thank you, Senator Leahy. You know, I 
respect and, indeed, I revere the military. My father was a 
veteran. One of the great privileges of my time at Harvard Law 
School was dealing with all these wonderful students that we 
had who had served in the military and students who wanted to 
go to the military. And I always tried to make sure that I 
conveyed my honor for the military, and I always tried to make 
sure that the military had excellent access to our students. 
And in the short period of time, Senator Sessions, that the 
military had that access through the veterans organization, 
military recruiting actually went up.
    But I also felt a need to protect our--to defend our 
school's very longstanding anti-discrimination policy and to 
protect the men and women, the students who were meant to be 
protected by that policy: the gay and lesbian students who 
wanted to serve in the military and do that most honorable kind 
of service. And those are the two things that I tried to do, 
and I think, again, the military always had good access at 
Harvard Law School.
    Chairman Leahy. Senator Kohl----
    Senator Sessions. Mr. Chairman, I would just----
    Chairman Leahy. Senator Kohl.
    Senator Kohl. Thank you so much, Senator Leahy.
    Ms. Kagan, you will testify this week for many hours 
regarding your philosophy, your approach to judging, as well as 
many specific legal issues. And yet one question that I suspect 
most of the American people are most curious about is the 
simplest but perhaps the most important one. Why do you want to 
be a Supreme Court Justice? Anyone in your position would be 
flattered and highly honored to be nominated to the Supreme 
Court because it is the pinnacle of the legal profession. But 
whatever this appointment means to you, what is most important 
to us is what it will mean for the American people.
    So please tell us: Why do you want to serve on the Supreme 
Court? What issues motivate you the most? And what excites you 
about the job?
    Ms. Kagan. Senator Kohl, it is an opportunity to serve this 
country in a way that, you know, fits with whatever talents I 
might have. I believe deeply in the rule of law. The Supreme 
Court is the guardian of the rule of law. And to be on the 
Supreme Court and to have that significant and indeed awesome 
responsibility to safeguard the rule of law for our country is 
an honor that comes to very few people and is just an 
opportunity to serve. And, you know, that is----
    Senator Kohl. Well, I appreciate that very much, but as we 
said, it is a tremendous honor clearly to serve and to 
safeguard the rule of law, and I am sure you feel you are 
capable of doing that. But what are the issues that bring you 
here today? What are the things you feel most passionate about? 
How are you going to make a difference as a Supreme Court 
Justice from any of the others who might be sitting here 
instead of you today?
    Ms. Kagan. Well, Senator Kohl, I do think that what 
motivates me primarily is the opportunity to safeguard the 
rules of law, whatever the issues that might come before the 
Court. And I think that that is the critical thing. If you do 
not have a rule of law, if you do not have an independent 
judiciary that enforces rights, that enforces the law, then no 
rights are going to be safe or protected. And I think that has 
to be first and foremost in every judge's mind, not in the way 
a legislator might care about some particular issue--I care 
about the environment or I care about the economy, or something 
like that. A judge cannot think that way. A judge is taking 
each case that comes before her and is thinking about how to do 
justice in that case and is thinking about how to protect the 
rule of law in that case, how to enforce the law, whether it is 
the Constitution or a statute.
    Senator Kohl. I am sure that those things are true, but 
Thurgood Marshall cared passionately about civil rights; 
Justice Ginsburg had a passion for women's rights; your father 
had a passion for tenants' rights. I am sure you are a woman of 
passion. Where are your passions?
    Ms. Kagan. Senator Kohl, I think I will take this one case 
at a time if I am a judge, and I think I will try to evaluate 
every case fairly and impartially, try to do justice in that 
case. I think it would, you know, not be right for a judge to 
come in and say, oh, I have a passion for this and that, and so 
I am going to, you know, rule in a certain way with regard to 
that passion.
    I am much more a person who I look at an issue before me, a 
case that might come before me, try to figure out what is right 
with respect to that issue, with respect to that case, and if 
you are a judge, of course, that means trying to figure out 
what is right on the law.
    Senator Kohl. Many Americans following the Supreme Court 
and our hearings may feel like the Supreme Court is remote and 
has no impact on their day-to-day lives. So tell us how you are 
going to help the American people should you be confirmed? How 
are you going to make a difference in their lives?
    Ms. Kagan. Senator Kohl, I think a judge's job is just to 
decide each case, and it is hard to say exactly how a judge 
would make a difference in their lives because you just do not 
know which cases are going to come before you. It is not like a 
legislature where you get to kind of craft an agenda and say 
this year we are going to do the following three things: we are 
going to work on energy legislation, or we are going to work on 
civil rights legislation.
    You know, for a judge it is case by case by case. that is, 
I think, the right way for a judge to do a job, is one case at 
a time, thinking about the case fairly and objectively and 
impartially. And in the course of doing that, of course, 
people's lives change because law has an effect on people, and 
you hope very much that law improves people's lives and has a 
beneficial effect on our society. That is the entire purpose of 
law.
    But this is not a job, I think, where somebody should come 
in with a particular substantive agenda and try to shape what 
they do to meet that agenda. It is a job where the principal 
responsibility is deciding each case, listening to the parties 
in that case fairly and objectively, and trying to make a good 
decision on the law.
    Senator Kohl. Well, that is true, but it is also true, as 
you know, that the Supreme Court decides which cases to take 
up. There are thousands of cases that come before you--''you'' 
collectively as Justices--to decide on which ones you will 
hear. So you are not just processing cases as they are placed 
before you. You and the other Justices decide which cases you 
are going to judge.
    So let me ask you this question: Which ones will motivate 
you?
    Ms. Kagan. Senator Kohl, you are exactly right that the 
Supreme Court does decide which cases to hear. It is a highly 
discretionary docket. There are about 8,000 certiorari 
petitions every year, and only about 80 of them are now taken 
by the Supreme Court, so maybe one in a hundred.
    But there are some pretty settled standards for deciding 
which cases to take. The first thing always is if there is a 
circuit split, because what the Supreme Court does, one of the 
principal roles of the Supreme Court is to apply uniformity 
across our country so that if one court says X and another 
court says Y and another says Z with respect to the same issue, 
the Supreme Court is the one that says we have to take this 
case so we can just set a clear rule, state what the law is so 
that everybody then can follow it across the country. So that 
is on reason why the Court typically grants cert on a case.
    Another set of cases where the Court very typically, often, 
almost always grants certiorari is when a legislature--excuse 
me, when another court has invalidated an act of Congress, when 
a court has said that an act of Congress is unconstitutional. 
And there the Court almost always says, well, acts of Congress, 
that is a serious thing to invalidate an act of Congress. You 
know, for the most part we want to defer to the legislative 
branch, to the decisions of our elected branches. So that is 
such a serious thing that the Court is going to take that case.
    And then I suppose that there is a third category of cases, 
which is just extremely important legal issues, you know, cases 
where there is not a conflict among the courts of appeals and 
there is no invalidation of an act of Congress, but the case 
presents some just strikingly significant legal issue that it 
is appropriate for the Supreme Court to consider and to issue a 
decision on. And I think, you know, in each year there is some 
number of those cases.
    Senator Kohl. General Kagan, as many of us said yesterday, 
we appreciate the perspective that you would bring to the Court 
as someone who has not been a judge. As Senator Feinstein said, 
that is a refreshing quality. And we appreciate the many 
thousands of documents that you have made available to us from 
your work throughout your career. Yet they shed little light on 
your judicial philosophy or how you would analyze and evaluate 
problems as a judge. That is why these hearings are so 
important so that the American people can get a sense of what 
your judicial philosophy is.
    At his confirmation hearings, Justice Alito said, ``If you 
want to know what sort of a Justice I will be, look at what 
sort of a judge that I have been.'' And other nominees have 
said similarly.
    Since we do not have a judicial record for you, how should 
we evaluate you so that we do have an idea as to what kind of a 
Justice you will be? What decisions or actions can you point to 
in your past and your career that demonstrate to us what kind 
of a Justice you will be?
    Ms. Kagan. Senator Kohl, I think you can look to my whole 
life for indications of what kind of a judge or Justice I would 
be. I think you can certainly look to my tenure as Solicitor 
General and the way I have tried to approach and handle that 
responsibility. I think you can look to my tenure at Harvard 
Law School and think about the various things I did there and 
the approach that I took. I think you can look to my 
scholarship, to my speeches, to my talks of various kinds. So I 
think it may not be quite so easy as with a person where you 
can just say, well, read this body of decisions. But I think I 
have had very much a life in the law, a very public life in the 
law. Senator Schumer referred yesterday to all my scholarship, 
to all my talks. And I think, you know, you can look to all 
those things.
    I hope what they will show--and this is for the Committee 
to determine, but I hope what they will show is a person who 
listens to all sides, who is fair, who is temperate, who has 
made good and balanced decisions, whether it is as Solicitor 
General or whether it is as dean of Harvard Law School or in 
any other capacity.
    Senator Kohl. Well, I think this is a good time to refer to 
your 1995 law review article in which you criticized Supreme 
Court----
    Ms. Kagan. It has been half an hour since I heard about 
that article.
    [Laughter.]
    Senator Kohl. Here we are. You said back then, ``When the 
Senate ceases to engage nominees in meaningful discussion of 
legal issues, the confirmation process takes on an air of 
vacuity and farce, and the Senate becomes incapable of either 
properly evaluating nominees or appropriately educating the 
public.''
    However, more recently, in the meeting that we had, you 
indicated that you had reconsidered these views, and I think we 
are getting some indication of that here at the moment.
    How do you feel about that reconsideration versus what you 
said back in 1995?
    Ms. Kagan. Well, Senator Kohl, I do think that much of what 
I wrote in 1995 was right, but that I in some measure got a bit 
of the balance off. So what I wrote in 1995 was that the Senate 
had an important role to play, that the Senate should take that 
role very seriously, that the Senate should endeavor to think 
about what a nominee was--what kind of Justice a nominee would 
make, and that that was all appropriate. And I also said that I 
thought it was appropriate for nominees to be as forthcoming as 
they possibly could be. And I continue to believe that, and I 
am endeavoring and will endeavor to do so.
    I did think, as I suggested earlier, that I got the balance 
a little bit off. I said then, even then in that 1995 actual, 
that it was inappropriate for a nominee to ever give any 
indication of how she would rule in a case that would come 
before the Court. And I think, too, it would be inappropriate 
to do so in a somewhat veiled manner by essentially grading 
past cases. But I do think it is very appropriate for you to 
question me about my judicial philosophy, on the kinds of 
sources I would look to in interpreting the Constitution or 
interpreting a statute, about my general approach to judicial 
decisionmaking, about the degree to which I would defer or not 
defer to acts of Congress and the States. I mean, all of those 
things I think ought to be a subject of debate.
    Senator Kohl. Well, back in that 1995 article, you wrote 
that one of the most important inquiries for any nominee, as 
you are here today, is to ``inquire as to the direction in 
which he or she would move the institution.'' In what direction 
would you move the Court?
    Ms. Kagan. Senator Kohl, I do think that that is the kind 
of thing that--all I can say, Senator Kohl, is that I will try 
to decide each case that comes before me as fairly and 
objectively as I can. I cannot tell you I will move the Court 
in a particular way on a particular issue because I just do not 
know what cases----
    Senator Kohl. You said in 1995, ``It is a fair question to 
ask a nominee in what direction''--this is your quote--``would 
you move the Court.''
    Ms. Kagan. Well, it might be a fair question.
    Senator Kohl. I am not going to get necessarily----
    [Laughter.]
    Senator Kohl. All right. Let us move on. Comparison to 
other judges. General Kagan, the basic purpose of this hearing 
is to learn what kind of a person you are and what kind of a 
justice you will be when you are confirmed. One way that we 
gain insight into your judicial philosophy is to learn which 
Justices you most identify with. Yesterday you spoke highly of 
Justice Stevens and said his qualities are those of a model 
judge. In addition to Justice Stevens, can you tell us the 
names of a few current Justices or Justices of the recent past 
with whom you most identify in terms of your judicial 
philosophy and theirs?
    Ms. Kagan. Well, I do very much admire Justice Stevens, and 
I wanted to say so as he left the Court because I think he has 
done this country long and honorable service, that he has been 
simply a marvelous Justice in his commitment to the rule of law 
and his commitment to principle.
    That is not say that Justice Kagan--if I am so lucky as to 
ever be called that, ``Justice Kagan''--would be Justice 
Stevens. It is just to say that I have great admiration for the 
contribution that Justice Stevens has made over many period of 
years, obviously, but Justice Stevens' contribution to the 
Court is not calculable in years. It is this extraordinary 
commitment to the rule of law that was there in his first year 
and is there in his last.
    I think it would be just a bad idea for me to talk about 
current Justices. I have expressed, you know, admiration for 
many of them.
    Senator Kohl. My, oh my, oh my. All right. Let us move on.
    [Laughter.]
    Senator Kohl. General Kagan, to help us understand what 
kind of a Justice you would be if you are confirmed, I would 
like to briefly describe the philosophies of two Justices and 
ask you which comes closest to your view.
    Justice Scalia considers himself to be an originalist who 
interprets the Constitution by looking solely at the text. He 
rejects the notion of a living Constitution and only gives the 
text of the Constitution ``the meaning that it bore when it was 
adopted by the people in 1787.''
    In contrast, Justice Souter has criticized this purely 
textual approach as having ``only a tenuous connection to 
reality.'' He believes that the plain text of the Constitution 
as written in 1787 does not resolve the conflict in many of 
today's tough cases; rather, Justice Souter believes judges 
must look at the words and seek ``to understand their meaning 
for living people.''
    Which view of the constitutional interpretation comes 
closer to your view, and why?
    Ms. Kagan. Senator Kohl, I do not really think that this is 
an either/or choice. I think that there are some circumstances 
in which looking to the original intent is the determinative 
thing in a case, and other circumstances in which it is likely 
not to be. And I think in general judges should look to a 
variety of sources when they interpret the Constitution, and 
which take precedence in a particular case is really a kind of 
case-by-case thing.
    The judges always should look to the text. There is no 
question that if the text simply commands a result--Senators, 
you can only be a Senator if you are 30 years old--then the 
inquiry has to stop. But there are many, many provisions of the 
Constitution, of course, in which that is not the case. When 
that is not the case, when the text is subject to one or more 
interpretations, then often you look to the original intent and 
you consider that original intent carefully.
    An example of that is in the Heller case, the gun case, 
where actually all nine Justices in that ruling looked to the 
original intent. They had different views of what the original 
intent was, but all nine of them thought it was important and 
appropriate to actually think about what the Framers had 
intended when they wrote that language, which of those two 
meanings the individual right or the collective right they had 
in mind.
    But in other cases, the original intent is unlikely to 
solve the question, and that might be because the original 
intent is unknowable or it might be because we live in a world 
that is very different from the world in which the Framers 
lived.
    In many circumstances, precedent is the most important 
thing. One good example of this is an interpretation of the 
First Amendment where the Court very rarely, actually, says, 
you know, what did the Framers think about this? The Framers 
actually had a much more constricted view of free speech 
principles than anybody does in the current time. And when you 
read free speech decisions of the Court, they are packed with 
reference to prior cases rather than reference to some original 
history.
    So I think it is a little bit case by case by case, 
provision by provision by provision, and I would look at this 
very practically and very pragmatically, that sometimes some 
approach--one approach is the relevant one and will give you 
the best answer on the law, and sometimes another.
    Senator Kohl. I would like to talk about antitrust a little 
bit, General Kagan. As you know, it has now been 120 years 
since the passage of the Sherman Act, our Nation's landmark 
antitrust law. For more than a century, this measure has 
protected the principles that we hold most dear: competition, 
consumer choice, and giving all businesses a fair opportunity 
to succeed or fail in the free market. So those of us who are 
strong believers in our free market, capitalistic economic 
system should also support antitrust law, I believe.
    In the words of the Supreme Court in 1972, antitrust law is 
a ``comprehensive charter of economic liberty.'' Recently, 
however, we have seen many industries become increasingly 
concentrated and consumers having fewer choices.
    In the last few years, we have seen a series of antitrust 
cases at the Supreme Court in which the Supreme Court majority 
has sided with the defendant and as a result made it more 
difficult for consumers and competitors to bring their 
antitrust cases. Many are concerned that the cumulative effect 
of these cases has harmed consumers because they are the ones 
who will suffer by paying the high prices that result from 
unchallenged anticompetitive practices. These cases include the 
Leegin, Twombly, and Trinko cases, among others.
    Do you share this concern? Should we be worried that as a 
result of these cases we have reached a tipping point where the 
antitrust laws may not be protecting consumers as much as they 
were intended to do?
    Ms. Kagan. Senator Kohl, I know that several of those cases 
you mentioned are ones in which there is considerable debate. 
The Leegin case is a good example. The Leegin case is one in 
which the Court overturned a very long-term precedent, many, 
many decades precedent, maybe 100 years after the Dr. Miles 
precedent. And the Court did so really on the basis of new 
economic theory, new economic understandings, but there is some 
question, to be sure, as to how new economic understandings 
ought to be incorporated into antitrust law. There, the 
question was how one should look at vertical agreements rather 
than horizontal agreements, agreements between a manufacturer 
and a distributor, and the question of whether those agreements 
are per se uncompetitive or whether they should be subject to 
more of a rule-of-reason analysis. And I believe the Court had 
held that they were per se uncompetitive, non-competitive, and 
per se violative of the antitrust laws and changed that to a 
rule-of-reason analysis.
    But I think on the one hand it is clear that antitrust law 
needs to take account of economic theory and economic 
understandings, but it needs to do so in a careful way and to 
make sure that it does so in a way that is consistent with the 
purposes of the antitrust laws, which is to ensure competition, 
which is, as you say, to be a real charter of economic liberty.
    Senator Kohl. Well, let us talk about the Leegin case. It 
was a 5-4 decision in which the Supreme Court in 2007 
overturned what you correctly referred to as a 96-year-old 
precedent and held that a manufacturer setting retail prices no 
longer automatically violated antitrust law. This means as a 
practical matter a manufacturer is now free to set minimum 
retail prices for its products and prohibit discounting.
    What do you think of this decision? Do you think it was 
appropriate for the Supreme Court by judicial fiat to overturn 
a nearly century-old decision on the meaning of the Sherman Act 
that businesses and consumers had come to rely on and which had 
never been altered by Congress?
    Ms. Kagan. Senator Kohl, I think that that decision does 
present the question that we just talked about, which is, you 
know, how sort of new economic theory ought to be incorporated 
into antitrust law, and especially to the extent that the Court 
has already ruled on a case, to the extent that the Court 
already has settled precedent in the area, it does raise the 
question of what it takes to reverse a precedent, a question on 
which there is a large body of law.
    I am not going to grade the Leegin decision, but I do 
recognize very much the concern that some have said about it, 
which is this question of when you have precedent in the area, 
when the antitrust laws have been interpreted in one way over 
time, and new economic understandings, new economic theory 
might suggest a different approach, how one balances those two 
things. And I think that is a very important question for the 
Court going forward.
    Senator Kohl. General Kagan, how do you feel about 
permitting cameras in the Supreme Court for oral arguments?
    Ms. Kagan. Well, Senator Kohl, this is actually something 
that I spoke about when I was nominated as solicitor general 
before I was ever nominated to this Court. So I have expressed 
a view on this question and I recognize that some members of 
the Court have a different view. And certainly when and if I 
get to the Court I will talk with them about that question. But 
I have said that I think it would be a terrific thing to have 
cameras in the courtroom.
    And the reason I think is as when you see what happens 
there, it's an inspiring site. I guess I talked about this a 
little bit in my opening statement yesterday. I basically 
attend every Supreme Court argument. You know, once a month I 
argue before the Court and when I'm not arguing I'm sitting in 
the front row watching some member of my office or somebody 
else argue. And it's an incredible site because all of these--
all nine Justices, they're so prepared, they're so smart, 
they're so thorough, they're so engaged, their questioning is 
rapid-fire. You're really seeing an institution of government 
at work, I think, in a really admirable way. And, of course, 
the issues are important ones. I mean, some of them will put 
you to sleep, you know, but----
    [Laughter.]
    Ms. Kagan--[continuing]. But a lot of them, the American 
people should be really concerned about and should be 
interested in. And so I think it would be a great thing for the 
institution and more important I think it would be a great 
thing for the American people.
    Having said that, I mean, I have to say, I understand that 
some of the current justices have different views, have 
concerns about it, maybe that they think it would actually 
change the way the Supreme Court arguments do work. And I 
would, you know, very much want to talk with them about those 
views. And, on almost every issue I'm open to being persuaded 
that I'm wrong. But on this one, I have expressed a real view 
and it's the one I hold is that it would be a great thing for 
the Court and it would be a great thing for the American 
people.
    Senator Kohl. All right. General Kagan, we all understand 
that you may be reluctant to comment on cases that will or are 
likely to come before you. I would like to ask you a question 
about a case that the Supreme Court will certainly never see 
again, the 2000 Presidential election contest between President 
Bush and Vice President Gore. Many commentators see the Bush v. 
Gore decision as an example of judicial improperly injecting 
itself into a political dispute. What is your view of that, of 
the Bush v. Gore decision and was the Supreme Court right to 
have gotten involved in the first place, General Kagan?
    Ms. Kagan. Senator Kohl, I think I might disagree that it's 
the kind of decision that will never come before the Court 
again. Of course, you're right that ``it'' will never come 
before the Court again. But the question of when the Court 
should get involved in election contests in disputed elections 
is, I think, one of some magnitude that might well come before 
the Court again. And if it did, you know, I would try to 
consider it in an appropriate way. And, you know, reading the 
briefs and listening to the arguments and talking with my 
colleagues. I think it is an important--an important question 
and a difficult question about how an election contest that at 
least arguably the political branches can't find a way to 
resolve themselves; what should happen and whether and when the 
Court should get involved. It's hard to think of a more 
important question in a Democratic system and it may be a 
tougher one.
    Senator Kohl. Do you believe when these hearings are over 
this week, the American people should have a pretty good idea 
of what your judicial philosophy is?
    Ms. Kagan. I hope that they will, Senator Kohl. And as we 
go around the room and people talk to me about the way in which 
I would decide cases, the approach I would use, just the way 
you asked me about, you know, would I just look to the original 
intent, or would I look to a broad variety of sources and when 
and where, I hope that the American people will get a sense of 
how I would approach cases.
    Senator Kohl. Thank you.
    Senator Leahy. Senator, as I mentioned to some of the 
Senators up here, I'm going to yield to Senator Hatch for his 
round and Senator Feinstein for her round. We will then take a 
10-minute break. We are trying to--if this works right, to 
break for lunch around one. We have a vote and I'm double-
checking to make sure whether it is set for 2:15. If that's the 
case, we would vote at--several of us would vote at the desk 
and come back immediately so that we could start about 2:20 
after lunch. But after these two Senators ask their questions, 
we'll break for 10 minutes.
    Senator Hatch. Well, thank you, Mr. Chairman. You are doing 
well. Relax as much as you can.
    I am going to ask her a series of questions, some of which 
just ask for yes or no, to the extent that you can do that I 
would appreciate it. But, you can do whatever you want to do; 
how's that.
    General Kagan, I want to begin by discussing freedom of 
speech in general and campaign finance reform in particular. As 
you know, the first word in the First Amendment is 
``Congress.'' Now, I know that the Supreme Court has said that 
the First Amendment also limits state government. But do you 
agree that America's founders were first concerned about 
setting explicit limits on the Federal Government in areas such 
as freedom of speech?
    Ms. Kagan. There's no question that the First Amendment 
limits what Congress and what other state actors, executive 
officials can do.
    Senator Hatch. OK. The Supreme Court has said that the 
First Amendment protects some types of speech more strongly 
than others and even that it does not protect some types of 
speech at all. Do you agree that the Supreme Court has held 
repeatedly that political speech, especially during a campaign 
for a political office is at the core of the First Amendment 
and has the First Amendment's strongest protection?
    Ms. Kagan. Political speech is at the core of the First 
Amendment. I think that that has been said many times by the 
Court.
    Senator Hatch. Yeah, I think one of the great examples, 
University San Francisco County Democratic Central Committee 
back in 1989 really came out very strongly on that.
    When you worked in the Clinton Whitehouse, you wrote a memo 
in October 1996 in which you wrote this: ``It is unfortunately 
true that almost any meaningful campaign finance reform 
proposal raises constitutional issues. This is a result of the 
Supreme Court's view which I believe to be mistaken in many 
cases that money is speech and that attempts to limit the 
influence of money in our political system therefore raise 
First Amendment problems.''
    Now, as I understand it, President Harry Truman argued as 
far back as 1947 that a ban on independent expenditures would 
be a ``dangerous intrusion on free speech.''
    The notion that spending and speech are necessarily related 
is hardly new and hardly confined to the Supreme Court or even 
one political party. Do you recognize--excuse me, do you reject 
the idea that spending is speech?
    Ms. Kagan. Senator Hatch, the quote that you read I believe 
was not written by me in my voice. It was a set of talking 
points that I prepared for--I'm not sure if it was for the 
President--for President Clinton or if it was for the press 
office, but it was meant to reflect the administration's 
position at the time. The administration was trying very hard 
to Enact the McCain/Feingold Bill and those talking points were 
in service of that objective and so they weren't, you know, my 
personal constitutional or legal views or anything like that, 
but was just a set of talking points that I prepared for, I 
think it was the press office. It might have been for the 
president himself.
    Senator Hatch. Well, you were listed as the creator.
    Ms. Kagan. I created a lot of talking points in my time.
    [Laughter.]
    Senator Hatch. OK. OK. I accept that.
    I want to turn to the Supreme Court's decision in Citizens 
United v. FEC for a little bit. I've seen media reports that in 
a meeting with at least one of your colleagues on this 
Committee you said that you believed the Citizens United case 
was wrongly decided; is that true?
    Ms. Kagan. Senator Hatch, I argued the case. Of course, I 
walked up to the podium and I argued strenuously that the bill 
was constitutional.
    Senator Hatch. But I'm asking about your belief.
    Ms. Kagan. And over the course--at least for me, when I 
prepare a case for argument, the first person I convince is 
myself. Sometimes I'm the last person I convince. But the first 
person I convince is myself and so, you know, I did believe, 
that we had a strong case to make. I tried to make it to the 
best of my ability.
    Senator Hatch. OK. The statute being challenged in this 
case prohibited different types of for-profit corporations, 
non-profit corporations and labor unions from using their 
regular budget to fund speeches by candidates who are election 
issues within 30 to 60 days of a primary or a general election. 
They could form separate organizations called ``PAC''s, 
political action committees, to do so, but they did not have 
the freedom to use their own money directly to speak about 
candidates or issues as they saw fit.
    Now, I know there's a lot of loose rhetoric about the 
decision in this case allowing unlimited ``spending on 
elections.'' I assume that is to conjure up images of campaign 
contributions or collusion. But just to clarify the facts, the 
statute in the Citizens United case involved what are called 
``independent expenditures'' or money spent by corporations, 
non-profit groups, or unions completely on their own to express 
their political opinions. Now, this case had nothing to do with 
contributions to campaigns or spending that is coordinated or 
connected in any way with candidates or campaigns; isn't that 
true?
    Ms. Kagan. You're right, Senator Hatch, that this was an 
independent expenditure case rather than a contributions case.
    Senator Hatch. Right. When President Obama announced your 
nomination he said that you believed that ``in a democracy 
powerful interests must not be allowed to drown out the voices 
of ordinary citizens.'' Virtually all of the rhetoric 
surrounding this case is focused on large, for-profit 
corporations. But the law in question and, of course, this case 
affected much more than that. But you know in that case a non-
profit organization sued to defend its freedom of speech 
rights. Do you agree that many people join or contribute to 
non-profit advocacy organizations because they support the 
positions and message of those groups and because those groups 
magnify the voice of their members and their contributors?
    Ms. Kagan. I do agree that civic organizations are very 
important in our society, Senator.
    Senator Hatch. These aren't just civic organizations. I'm 
talking about unions and businesses and non-profits and profits 
and partnerships and S-corporations and a lot of others.
    Ms. Kagan. Yes. You're right that the statute that the 
government defended in the Citizens United case was a statute 
that applied to many different kinds of corporations.
    Senator Hatch. That's right.
    Ms. Kagan. And one of the things that the government 
suggested to the Court in the course of its arguments was that 
one possibly appropriate way to think about the case might be 
to treat those different situations differently. But the 
statute itself applied to many different kinds of 
organizations.
    Senator Hatch. OK. Now, President Obama called the Citizens 
United decision, ``a victory for powerful interests that 
marshal their power every day in Washington to drown out the 
voices of everyday Americans.''
    Now, as I said the statute applied to for-profit 
corporations, non-profit corporations, and labor unions. Do you 
believe that--let's just take unions, do you believe that they 
are ``powerful interests that drown out the voices of everyday 
Americans'' ?
    Ms. Kagan. Senator Hatch, what the government tried to 
argue in that case was that Congress had compiled a very 
extensive record about the effects of these independent 
expenditures by corporations generally and by unions generally 
on the political process. And that what the Congress had found 
was that these corporations and unions had a kind of access to 
Congressmen, had a kind of influence over Congressmen that 
changed outcomes, that was a corrupting influence on Congress. 
And that was what the many, many, many thousand-page record 
that was created before Congress enacted the McCain-Feingold 
Bill revealed and that's what we tried to argue to the Court.
    Senator Hatch. I understand the argument. But the statute 
banning political speech that was challenged in Citizens United 
also applied to small S-chapter corporations that might have 
only one shareholder. There are more than four and a half 
million S-corporations or S-chapter corporations in America. We 
have 56,000 in my home state of Utah alone. These are small 
companies that want the legal protections that incorporating 
provides. These are family farmers, ranchers, mom and pop 
stores, and other small businesses. Before the Citizens United 
decision these small family businesses could be barred from 
using their regular budget for say a radio program or even a 
pamphlet opposing their Congressman for his vote on a bill if 
it was that close to an election.
    Now, do you believe the Constitution gives the Federal 
Government this much power?
    Ms. Kagan. Senator Hatch, Congress determined that 
corporations and trade unions generally had this kind of 
corrupting impact on----
    Senator Hatch. I'm talking about all of these four and a 
half million S--small corporations as well.
    Ms. Kagan. Senator Hatch, of course, in the Solicitor 
General's Office we defend statutes and Congress determined----
    Senator Hatch. No, no, I understand that.
    [Simultaneous conversation.]
    Senator Hatch. Let me ask my questions the way I want to.
    Senator Leahy. Then ask the question.
    Senator Hatch. I will. I'm going to be fair. I intend to 
be. And you know that after 34 years.
    [Laughter.]
    Senator Hatch. Go ahead, keep going, did you have something 
else you wanted to add?
    Ms. Kagan. No, go ahead.
    Senator Hatch. OK. We have to have a little back and forth 
every once in a while or this place would be boring as hell, 
I'll tell you.
    [Laughter.]
    Ms. Kagan. And it gets the spotlight off me, you know, so 
I'm all for it. Go right ahead.
    Senator Hatch. I can see that. And by the way, I've been 
informed that hell is not boring. So?
    [Laughter.]
    Senator Hatch.--I can imagine what I mean by that.
    Ms. Kagan. Just hot.
    Senator Hatch. OK. I have the current volume, the current 
volume of the Code of Federal Regulations. Now, this is 
governing Federal campaign finance. It's 568 pages long, this 
code. This does not include another 1,278 pages of explanations 
and justifications for these regulations. Nor does it include 
another 1,771 Federal Election Commission advisory opinions, 
even more enforcement rulings and still more Federal statutes.
    Now, let me ask you this, do you believe that the 
Constitution allows the Federal Government to require groups 
such as non-profit corporations and small S-chapter 
corporations to comb through all of this? This is just part of 
it. I have thousands of other pages of regulations--likely hire 
an election law attorney and jump through all the hoops of 
forming a political action Committee with all of its costs and 
limitations simply to express an opinion in a pamphlet or in a 
radio or a movie or just to criticize their elected officials? 
Do you really believe the constitution allows that type of 
requirement?
    Ms. Kagan. Well, Senator Hatch, I want to say, Senator 
Hatch you should be talking to Senator Feingold, but I won't do 
that.
    Senator Hatch, Congress made a determination here. And the 
determination was that corporations and unions generally had 
this kind of corrupting influence on Congress when they engaged 
in?
    [Simultaneous conversation.]
    Senator Hatch. But you acknowledge that it covered all 
these other smaller groups and all these other groups that 
have--should have a right to speak as well?
    Ms. Kagan. The Solicitor General's Office, of course, 
defends statutes as they're written. And Congress made the 
determination broadly that corporations and trade unions had 
this corrupting influence on Congress. And in the Solicitor 
General's office we in the Solicitor General's office, as other 
Solicitor Generals offices have done, vigorously defended that 
statute as it was written.
    Senator Hatch. I understand.
    Ms. Kagan. On the basis of the record that was made in 
Congress, this, I think it was in a 100,000-page record about 
the corrupting influence of independent expenditures made by 
corporations and unions. Now, the Court rejected that position. 
The Court rejected that position in part because of what you 
started with. You said, ``Political speech is of paramount 
First Amendment value'' it's no doubt the case. And the Court 
applied a compelling interest standard and the Court rejected 
the position. But the position that we took was to defend the 
statute to apply broadly.
    Senator Hatch. No, no, I have no problem with that because 
that was your job. But I'm getting into some of the comments by 
some of our colleagues, by the President and others about how 
wrong this case was. But I don't think it was wrong at all.
    Your 1996 Law Review article about private speech and 
public purpose emphasized the need to examine the motive behind 
speech restrictions. Since you've already written about this, I 
would like to know whether you personally agree with the 
Supreme Court in the Citizens United decision that ``speech 
restrictions based on the identity of one speaker are all too 
often simply a means to control content;'' do you agree with 
that?
    Ms. Kagan. Senator Hatch, speaker-based restrictions do 
usually get strict scrutiny from the Supreme Court and for the 
reason that you suggest which is a concern about why it is that 
Congress is saying one speaker can speak and not another.
    I had a very interesting colloquy with Justice Scalia at 
the Court on this question.
    Senator Hatch. I understand.
    Ms. Kagan. Justice Scalia said to me, and it's a powerful 
argument, he said, ``Well, you know, if you let Congress think 
about these things Congress is going to protect incumbents.'' 
That that might be a reason for Congress to say that certain 
groups can make independent expenditures and others not.
    Senator Hatch. Well, one part of Congress would protect 
incumbents. The others would be trying to throw them out. I 
mean, that's what this system is.
    [Laughter.]
    Ms. Kagan. But I said to Justice Scalia and I think it's 
true with respect to the McCain-Feingold Bill that all the 
empirical evidence actually suggests--I think my line was, 
``this is the most self-denying thing that Congress has ever 
done.'' Because all the empirical evidence suggests that these 
corporate and union expenditures actually do protect incumbents 
and notwithstanding that in the McCain-Feingold Bill Congress 
determined that it was necessary in order to prevent corruption 
to prevent those expenditures. But, you know, the Court said 
no.
    Senator Hatch. Well, tell that to Blanch Lincoln how 
incumbents are protected.
    In this case the speech in which Citizens United--I think 
about Blanch Lincoln, one of the nicer people around here, who 
had $10 million spent against her by the unions just because 
they disagreed with her on one or two votes. I mean, you know, 
let me keep going now.
    In this--and I'm enjoying our colloquy together.
    Ms. Kagan. Me too.
    Senator Hatch. In this--I hope so. In this case, the speech 
in which Citizens United wanted to engage was in the form of a 
movie about a Presidential candidate, Hillary Clinton, at the 
time, the Deputy Solicitor General first argued the case. The 
Deputy Solicitor General from your office. He told several 
Justices that if a corporation of any size, a union, or even a 
non-profit group did not have a separate PAC, the Constitution 
allows to Congress to ban publishing, advertising, or selling, 
not only a traditional print book that criticized a political 
candidate, but an electronic book available on devices such as 
the Kindle. Even a 500-page book that had only a single mention 
of a candidate, not only print or electronic books, but also a 
newsletter, even a sign held up in Lafayette Park.
    Now, isn't that what under that argument at that time your 
office admitted that at first oral argument that at the end of 
the day the Constitution allows Congress to ban them from 
engaging in any political speech in any of those forums?
    Ms. Kagan. Senator Hatch----
    Senator Hatch. I'm not blaming you for the prior argument 
nor am I really blaming the person who was trying to defend 
this statute. I'm just saying that's what happened.
    Ms. Kagan. Senator Hatch, the statute which applies only to 
corporations and unions when they make independent 
expenditures, not to their PACs. The corporations and unions 
when they make independent expenditures within a certain period 
of an election the statute does not distinguish between movies 
and anything else.
    Senator Hatch. Well, as you can see, I'm finding a certain 
amount of fault with that. And that's why the Citizens United 
case, I think, is a correct decision. The Court has been 
criticized, including just yesterday, in this hearing for not 
deciding the Citizens United case on narrower statutory 
grounds. But according to some media accounts such as the 
National Journal, it was your office's admission that the 
statute had much broader Constitutional implications that 
prompted the Court to ask for a second argument in this case.
    Now, that's where you come in. You reargued the case last 
September, and I believe that it was Justice Ginsberg who asked 
whether you still believed that the Federal Government may ban 
publication of certain books at certain times? You said that 
the statute in question covered books, but that there might be 
some legal arguments against actually applying it to books. I 
certainly agree with you on that.
    But didn't you argue that the Constitution allows the 
Federal Government to ban corporations, union, and non-profit 
groups from using their regular budget funds to publish 
pamphlets that say certain things about candidates close to an 
election. You did say that?
    Ms. Kagan. Senator Hatch, we were of course--I was 
defending the statute?
    Senator Hatch. No, I understand.
    Ms. Kagan.--as it was written and the statute as it was 
written applies to pamphlets as well as to the movie in the 
case and we made a vigorous argument that the application of 
that statute to any kinds of classic electioneering materials, 
not books, because they aren't typically used to election year. 
But that the application of the statute to any kinds of classic 
electioneering materials was in fact constitutional and the 
Court should defer to Congress's view of the need----
    Senator Hatch. I accept that. I accept that you made that 
argument and that you were arguing for statutory enactment by 
the Congress.
    But as I mentioned, you said that the Federal Government 
could ban certain pamphlets at certain times because pamphlets 
are, as you put it, ``pretty classic electioneering.''
    You said that pamphleteering is classic political activity 
with deep historical roots in America. Certainly some of the 
most influential pieces of political speech in our Nation's 
history have been pamphlets such as Thomas Payne's Common 
Sense.
    Since in the Citizens United case you were defending 
amplification of that statute to a film, would you also 
consider films as classic electioneering?
    Ms. Kagan. Senator Hatch, I'm trying to remember what our 
brief said, but, yes, I think the way we argued the case?
    Senator Hatch. You took that position.
    Ms. Kagan.--it applies to films as well.
    Senator Hatch. OK.
    Ms. Kagan. Of course.
    Senator Hatch. All right. A pamphlet is often defined at 
least in the dictionary as an unbound, printed work, usually 
with a paper cover or a short essay or treatise. In another 
First Amendment context involving the establishment clause, 
Justice Kennedy criticized the idea that application of the 
First Amendment depended on such things as the presence of a 
plastic reindeer or the relative placement of poinsettia. I 
believe he called that a ``juris prudence of minutia''. I 
thought it was an interesting comment myself.
    Do you believe that the protection of the First Amendment 
should depend on such things as the stiffness of a cover, the 
presence of a binder, or the number of words on a page? Now, 
you can give an opinion on that since that case is decided.
    Ms. Kagan. Senator Hatch, what we did in the Citizens 
United case was to defend the statute as it was written which 
applied to all electioneering materials with the single 
exception of books which we told the Court were not the kind of 
classic electioneering materials that posed the concerns that 
Congress has found to be posed by all electioneering materials 
of a kind of classic kind. Books are different. Books, you 
know, nobody uses books in order to campaign.
    Senator Hatch. That's not true. That's not true. And you 
did say that books are probably covered, but you didn't think 
they would----
    Ms. Kagan. I thought that I said the argument was that they 
were covered by the language of the statute, but that a good 
constitutional challenge, as applied constitutional challenge 
could be made to it because the purposes that Congress had in 
enacting the statute, which were purposes of preventing 
corruption, would not easily have applied to books. But would 
have applied to all the materials that people typically use----
    Senator Hatch. I understand.
    Ms. Kagan.--in campaigns.
    Senator Hatch. I understand. In 1998 when you served in the 
Clinton Administration the Federal Election Commission sued 
Steve Forbes and his company that publishes Forbes Magazine. I 
have a copy of the Forbes Magazine right here and I think most 
people are familiar with it.
    Steve Forbes had taken a leave from his position with the 
company to run for president but continued writing columns on 
various issues. The FEC used the same statute that you defended 
in the Citizens United case to say that these columns were 
illegal corporate contributions to Forbes' Presidential 
campaign. And I know that the FEC later decided to terminate 
the lawsuit. And I know that this Forbes lawsuit involved 
alleged campaign contributions rather than independent 
expenditures. But the same statute was involved and I use this 
as an example to show what can happen on the slippery slope of 
the Federal Government regulating who may say what and when 
about the government.
    Now, the Forbes case involved a magazine. The case you 
argued involved a movie. Your office admitted that the statute 
could apply to books and newsletters. You admitted that it 
could apply to pamphlets.
    Now, all of this involves the politic speech that is the 
very heart of the First Amendment, whether engaged in by for-
profit corporations, nonprofit corporations, tiny S chapter 
corporations, or labor unions.
    Do you really believe--now, this is your personal belief. 
Do you really believe--and I understand you represented the 
government. But do you really believe that the Constitution 
allows the Federal Government this much power to pick and 
choose who may say what, how and when about the government?
    Ms. Kagan. Senator, putting the Citizens United case to the 
side, I think that there are extremely important constitutional 
principles that prevents the government from picking and 
choosing among speakers, except in highly unusual 
circumstances, with hugely compelling interests.
    Senator Hatch. Well, what is highly unusual about a book or 
a pamphlet or a movie?
    Ms. Kagan. Senator, as I said, putting Citizens United to 
the side, I argued that case. I argued it on behalf of the 
government, because Congress had passed a statute. We are----
    Senator Hatch. But you do believe it was wrongly decided, 
too, do you not?
    Ms. Kagan. I'm sorry?
    Senator Hatch. You did take the position it was wrongly 
decided.
    Ms. Kagan. I absolutely said, Senator Hatch, that when I 
stepped up to the podium as an advocate, I thought that the 
U.S. Government should prevail in that case and that the 
statute should be upheld.
    I wanted to make a clear distinction between my views as an 
advocate and any views that I might have as a judge. I do think 
Citizens United is settled law going forward. There is no 
question that it's precedent, that it's entitled to all the 
weight that precedent usually gets.
    I also want to make clear that in any of my cases as an 
advocate, and this is Citizens United or any of the other cases 
in which I have argued, I'm approaching the things--the cases 
as an advocate from a perspective of, first, the U.S. 
Government interests and, also, it's a different kind of 
preparation process.
    You don't look at both sides in the way you do as a judge.
    Senator Hatch. I got that. I got that. I do not have any 
problem with that. All I am saying is that we have had 
arguments right here in this Committee that this is a terrible 
case that upset 70 years of precedent. And I have heard all 
these arguments and they are just inaccurate, and that is what 
we are establishing here.
    When President Obama criticized the Citizens United 
decision in the State of the Union Address, with the Supreme 
Court justices sitting there, he said that it would allow 
foreign corporations to fund American elections. And others 
have said the same thing.
    Do you agree that this case involved an American nonprofit 
organization, not a foreign corporation; that this case 
involved independent political speech, not campaign 
contributions; and, that the separate laws regarding political 
spending by foreign corporations and campaign contributions by 
anyone are still enforced today?
    Ms. Kagan. Senator Hatch, this case did, as you say--these 
parties were domestic, nonprofit--was a domestic, nonprofit 
corporation.
    Senator Hatch. All right. Well, there was no foreign 
corporation involved. That is one of the points I am trying to 
establish. And it was a misstatement of the law. I am not here 
to beat up on President Obama. I just want to make this point. 
And yet, colleagues have just accepted that like that is true. 
It is not true.
    In First National Bank of Boston v. Bellotti, the Supreme 
Court held, in 1978, more than 30 years ago, that, quote, ``The 
identity of the speaker is not decisive in determining whether 
speech is protected. Corporations and other associations, like 
individuals, contribute to the discussion, debate, and the 
dissemination of information and ideas that the First Amendment 
seeks to foster,'' unquote.
    Bellotti was decided just 2 years after the landmark case 
of Buckley v. Valeo. In Bellotti, the Court recognized that 
corporations have a First Amendment right to engage in 
political speech.
    In that decision, Chief Justice Berger wrote an interesting 
concurrence in order to, as he put it, quote, ``raise some 
questions likely to arise in the future,'' unquote.
    These questions included that large corporations would have 
an unfair advantage in the political process. He had some 
amazing insight there, I think, because people are making just 
such arguments today.
    That case also involved the First Amendment protection of 
the press that Berger noted how the government historically has 
tried to limit what may be said about it. He concluded, quote, 
``In short, the First Amendment does not belong to any 
definable category or persons or entities. It belongs to all 
who exercise its freedoms,'' unquote.
    Do you agree with that?
    Ms. Kagan. I'm sorry, Senator Hatch.
    Senator Hatch. Do you agree with Justice Berger's comment 
there?
    Ms. Kagan. Would you read that again? I'm worry.
    Senator Hatch. Sure. I would be glad to. He said that, ``In 
short, the First Amendment does not belong to any definable 
category or persons or entities. It belongs to all who exercise 
its freedoms.''
    Ms. Kagan. Senator Hatch, the First Amendment protects all 
of us and grants all of us rights.
    Senator Hatch. Right. And they are important rights. In 
Citizens United--see, I get a little tired of people on the 
left saying it was a terrible case, when, frankly--let me make 
this point.
    In Citizens United, the Court listed at least 25 precedents 
dating back almost 75 years. Here is a list of them right here. 
Quoting generally, that the First Amendment protects corporate 
speech and, specifically, that it protects corporate political 
speech.
    Now, I would like to put these cases in the record at this 
point.
    Chairman Leahy. Without objection.
    [The information referred to appears as a submission for 
the record.]
    Senator Hatch. On the other side of the precedential scale 
was a single 1990 decision in Austin v. Michigan Chamber of 
Commerce. As the Court said in Citizens United, no other case 
had held that Congress may prohibit independent expenditures 
for political speech based on the identity of the speaker.
    In other words, Austin was the aberration, the exception, 
the break in the Court's consistent pattern of precedence. And 
many folks have--Mr. Chairman, I only need about 30 seconds 
more just to finish here.
    Chairman Leahy. Thirty seconds more.
    Senator Hatch. Many folks have attacked the decision, 
saying it is a prime example of, quote, ``conservative judicial 
activism,'' unquote, because it ignored precedent by overruling 
Austin.
    But by overruling that one precedent, was not the Court 
really reaffirming a much larger group of previous decisions, 
including Bellotti, that, as we discussed, affirmed that 
corporations have a First Amendment right to engage in 
political speech, and that includes all these small 
corporations? That sounds like the Court is committed to 
precedent, not rejecting it.
    I thank my Chairman for allowing me to make that last 
comment. But I get a little tired of people misstating what 
Citizens United is all about.
    Ms. Kagan. Senator Hatch, I think that the----
    Senator Hatch. And I have appreciated your comments here 
today.
    Ms. Kagan. Senator Hatch, I think that there was a 
significant issue in the case about whether Austin was an 
anomaly, as you quoted, or whether it was consistent with prior 
precedent and consistent with subsequent precedent, as well. 
And, certainly, the government argued strenuously that Austin 
was not an anomaly, although the Court disagreed and held that 
it was.
    Chairman Leahy. Senator Feinstein is recognized. And then 
after that round of questioning, we will take a short break.
    Senator Feinstein.
    Senator Feinstein. Thank you very much, Mr. Chairman.
    I just want to clear up one thing before I go on. It is my 
understanding that you specifically told the Supreme Court that 
books have never been banned under Federal campaign finance 
laws and likely could not be.
    Here is a quote. ``Nobody in Congress, nobody in the 
administrative apparatus has ever suggested that books pose any 
kind of corruption problem.'' Is that not correct?
    Ms. Kagan. Yes, that's exactly right, Senator Feinstein.
    Senator Feinstein. So it is clear to me that the campaign 
finance laws invalidated by the Supreme Court in Citizens 
United were intended to prevent corporations from spending 
limitless dollars to elected candidates to do their bidding, 
not to prevent authors from publishing their books.
    Ms. Kagan. We said that the act ought not to be applied. It 
had never been applied to books. We thought it never would be 
applied to books. And to the extent that anybody ever tried to 
apply it to books, what I argued in the Court is that there 
would be a good constitutional challenge to that, because the 
corrupting potential of books is different from the corrupting 
potential of the more typical kinds of independent 
expenditures.
    Senator Feinstein. Thank you very much. Now, I want to just 
have a little heart-to-heart talk with you, if I might. I come 
at the subject----
    Ms. Kagan. Just you and me.
    Senator Feinstein. Just you and me and nobody else.
    [Laughter.]
    Chairman Leahy. Don't anybody in the room listen.
    Senator Feinstein. I come at the subject of guns probably 
differently than most of my colleagues. I think I've seen too 
much.
    I wrote the assault weapons legislation. I found the body 
of Harvey Milk. I became mayor as a product of an 
assassination.
    I have watched as innocent after innocent has been killed, 
the latest of which, in my State, is 2 weeks ago, a 6-year-old, 
in a Spiderman costume, eating an ice cream bar in the kitchen, 
was killed by a bullet coming through the room.
    I can show you in Los Angeles where a woman ironing, was 
killed the same way. A youngster playing the piano, killed the 
same way, bullet right through the walls. He is a paraplegic 
today.
    Now, you answered Senator Leahy's question that you believe 
that both Heller and McDonald are binding precedent and 
entitled to all respect to binding precedent in any case. 
``That is settled law,'' you said.
    These were 5-4 closely decided decisions in both cases. 
California is not Vermont. California is a big state, with 
roiling cities. It is the gang capital of America. The State 
has tried to legislate in the arena.
    As I understand McDonald, it is going to subject virtually 
every law that a State passes in this regard to a legal test. 
And that causes me concern, because States are different. Rural 
States have different problems than large metropolitan States 
do.
    We probably have as many as 30 million people living in 
cities, where the issue of gangs is a huge question. So here is 
my question to you.
    Why is a 5-4 decision in two quick cases, why does it throw 
out literally decades of precedent in the Heller case, in your 
mind? Why do these two cases become settled law?
    Ms. Kagan. Senator Feinstein, because the Court decided 
them as they did and once the Court has decided a case, it is 
binding precedent.
    Now, there are various reasons for why you might overturn a 
precedent; if the precedent proves unworkable over time or if 
the doctrinal foundations of the precedent are eroded or if the 
factual circumstances that were critical to why the precedent--
to the original decision, if those change.
    But unless one can sort of point to one of those reasons 
for reversing a precedent, the operating presumption of our 
legal system is that a judge respects precedent, and I think 
that that's an enormously important principle of the legal 
system.
    It defers to prior justices or prior judges who have 
decided something and that it's not enough, even if you think 
something is wrong, to say, ``Oh, well, that decision was 
wrong, they got it wrong.'' The whole idea of precedent is 
that's not enough to say a precedent is wrong.
    You assume that it's right and that it's valid going 
forward.
    Senator Feinstein. Let us go to the 1973 case of Roe v. 
Wade, the 1992 case of Planned Parenthood v. Casey, the 2000 
case of Stenberg v. Carhart. In those cases, the Supreme Court 
clearly stated, and I quote, ``Subject to viability, the State, 
in promoting its interest in the potentiality of human life, 
may, if it chooses, regulate and even prescribe abortion, 
except where it is necessary in appropriate medical judgment 
for the preservation of the life or health of the mother.''
    That is 30 years of case law. But in the 2007 case of 
Carhart v. Gonzalez, the Court issued a 5-4 decision upholding 
a statute that did not contain an exception to protect the 
health of the mother for the first time since Roe was passed in 
1973.
    So let me ask you, clearly. In a memo that you wrote in 
1997, you advised President Clinton to support two amendments 
to a late stage abortion bill to ensure that the health of the 
mother would be protected.
    Here is the question. Do you believe the Constitution 
requires that the health of the mother be protected in any 
statute restricting access to abortion?
    Ms. Kagan. Senator Feinstein, I do think that the 
continuing holding of Roe and Doe v. Bolton is that women's 
lives and women's health have to be protected in abortion 
regulation.
    Now, the Gonzalez case said that with respect to a 
particular procedure, that the statute Congress passed, which 
passed a statute without a health exception and with only a 
life exception, was appropriate because of the large degree of 
medical uncertainty involved----
    Senator Feinstein. Because of the procedure.
    Ms. Kagan. Because of the procedure. But with respect to 
abortion generally, putting that procedure aside, I think that 
the continuing holdings of the Court are that the woman's life 
and that the woman's health must be protected in any abortion 
regulation.
    Senator Feinstein. Thank you very much. Let me move on to 
executive power, if I might. Some on the left have criticized 
your views on executive power, finding fault with your 
testimony during your 2009 confirmation hearing to be solicitor 
general, in which you agreed with Senator Lindsey Graham that 
the law of armed conflict provides sufficient legal authority 
for the President to detain individuals suspected of terrorist 
ties without trial.
    You also agreed that the courts have a role in determining 
whether a particular detention is lawful, and that substantive 
due process is required before an individual may be detained.
    You agreed during the aforementioned hearing that an 
individual suspected of financing Al Qaeda in the Philippine 
was, quote, ``part of the battlefield,'' end quote, for the 
purpose of capture and detention.
    Could you elaborate on the scope of the President's 
authority to detain individuals under the law of armed 
conflict?
    Ms. Kagan. Senator Feinstein, the conversation that Senator 
Graham and I had, and I believe, in that same hearing, you 
asked a similar question, starts with the Hamdi case, where the 
Supreme Court said that the AUMF, the authorization for the use 
of military force, which is the statute that applies to our 
conflict with Iraq and Afghanistan, that the AUMF includes 
detention authority.
    And Hamdi said that the law of war typically grants such 
authority in a wartime situation and interpreted the AUMF 
consistent with the law of war understanding.
    Now, the question of exactly what the scope of that 
detention authority is has been and continues to be the subject 
of a number of cases. And in the role of Solicitor General, 
I've participated in some of those issues.
    The Obama Administration has a definition of enemy 
belligerents that it believes are subject to detention under 
the AUMF and as approved by Hamdi, and the Solicitor General's 
office has used that definition of an enemy belligerent, which 
is a person who is part of or substantially supports the Al 
Qaeda and Taliban forces.
    That's the definition that the Solicitor General's office 
has advocated, as has the rest of the Justice Department.
    Now, there are a number of uncertain questions in this area 
that almost surely will come before the Supreme Court, 
questions about whether the scope of the definition that the 
Obama Administration has been using is appropriate, whether it 
is too broad, whether it is too narrow; where the battlefield 
is; what counts as--do you have to be a member of a fighting 
force or is it sufficient that you support the fighting force, 
and, if so, what kind of support might give rise to detention.
    So all of those questions are, I think, questions that 
might come before the Court in the future. The Obama 
Administration has taken views as to some of them, not all of 
them, in cases that have been litigated over the past couple of 
years.
    But there are certainly quite a number of questions that 
will come before the Court about the exact scope of detention 
authority.
    Senator Feinstein. So if I understand you correctly, you 
would say that the executive's power in this area is really 
limited by the specifics of the actual situation, if I 
understand what you are saying.
    Ms. Kagan. Well, Senator Feinstein----
    Senator Feinstein. And that the President does not have an 
overriding authority here.
    Ms. Kagan. Senator Feinstein, the way that the Solicitor 
General's office has argued these cases, and the entire 
Department of Justice has, is on the basis of statutory 
authority, is on the basis of the AUMF, the authority for the 
use of military force.
    And we have actually never argued that Article 2 alone 
would provide such authority. And the question you raise 
really--the usual framework that people use when they think 
about this question is something called Youngstown, of course, 
Justice Jackson's opinion in Youngstown, and he sets forth 
three different zones.
    He says, well, in one zone, the President can act in 
accordance with Congressional authority, and that is the 
easiest for a court to validate; to say, ``Look, Congress and 
the President are acting together, the President is acting in 
specific accordance with what Congress has told the President 
to do. The courts should give real deference to that.''
    Senator Feinstein. Let me stop you here, because it is the 
three-pronged test, and we have discussed this in almost every 
Supreme Court confirmation hearing now.
    The concern is where there is not legislation or when, the 
third prong, when legislation may say the opposite. Can the 
President exceed that legislation and how strong is his 
authority? You say it is not the commander in chief authority, 
it is the AUMF authority that prevails.
    Do I understand that correctly?
    Ms. Kagan. Yes. Essentially, what the Solicitor General's 
office and the Department of Justice have been arguing in these 
last 2 years is that we're in zone one, which is where the 
executive is acting with Congress' authorization, rather than 
in zone two, where the executive is acting and Congress hasn't 
said anything, or zone three, where the executive is acting as 
against Congress' statement to the contrary.
    So those would present very different issues. Whether the 
President has authority to detain where Congress has not said 
anything or, still yet, whether the President has the authority 
to detain where Congress has specifically deprived him of that 
authority, that would be a very different question, indeed.
    Senator Feinstein. Let us talk about that for a moment, 
because that is something I had something to do with, and, that 
is, expanding the exclusivity portion of the Foreign 
Intelligence Surveillance Act to say that the executive 
authority may not exceed in statute the confines of this act.
    Would you find that as binding?
    Ms. Kagan. Well, Senator Feinstein, I would have to take a 
look at the statute. But I would say that the circumstances in 
which the President can act as against specific Congressional 
legislation, where the President can act despite Congress, are 
few and far between, and I think that that's what Justice 
Jackson said in Youngstown and I think that that's what mostly 
the Court has agreed with, few and far between.
    Now, are they nonexistent? Well, suppose Congress said 
something like ``We're going to take away the President's 
pardon power,'' a power that's specifically committed to the 
President by Article 2, I think that that would be a hard case.
    I think a court might say, ``Well, notwithstanding that 
Congress tried to do that, Congress can't do that. The 
President has that power and it doesn't matter what Congress 
says about the matter.''
    But those are very few and far between. For the most part, 
the presumption is that the President, if told by Congress that 
he can't do something, can't do something.
    Senator Feinstein. Let me ask this. Does the President, in 
your view, have the authority to detain American citizens 
without criminal trial if they are suspected of conspiring to 
aid terrorists of participating in acts of terrorism?
    Now, does your answer then depend on whether the individual 
was arrested in the United States or abroad?
    Ms. Kagan. Well, Senator Feinstein, this will, I think, 
very much be a case that may come before the Court, is the 
question of how detention authority, whether detention 
authority exists with respect to people who are apprehended in 
the United States.
    The Court has not addressed that question so far. The Court 
has addressed, in Hamdi, only a person who was actually 
captured on the battlefield. The Court has left open the 
question of whether detention authority might exist for a 
person captured outside of the battlefield, but outside of the 
United States, and, also, has left open the question of whether 
detention authority, under the AUMF now I'm talking about, 
would exist as to a person captured in the United States.
    There is a fourth circuit decision on that subject. It's 
the Al-Marri case, where the court was very closely divided, 
where a slim majority of the court stated that the court--that 
there was detention authority under the AUMF to detain a person 
in military custody captured in the United States.
    That case was on its way to the Supreme Court, but never 
got there. It was mooted out because the person was transferred 
into civilian custody--excuse me--into the regular criminal 
justice system. So that case did not come before the Court in 
Al-Marri. But it's very much a live possibility.
    Senator Feinstein. Right. And we have just had a case by a 
district court judge in California, as of March 31st of this 
year, the al-Haramain case, and Senator Specter and I have 
discussed this.
    It is my understanding that what the judge did there was 
find the terrorist surveillance program illegal and essentially 
say that the plaintiff was entitled to damages from the 
government.
    So I guess the question might be whether that case goes up 
to the Supreme Court or not. But clearly, the judge here dealt 
with something that was outside of the scope of law, which was 
the terrorist surveillance program, and made a finding that it 
was, in fact, illegal.
    Ms. Kagan. I believe that that is what the judge said in 
that case, and that case is still pending, of course, and might 
come before the Court.
    I think that the appropriate analysis to use with respect 
to that case or many others in this area would be the 
Youngstown analysis, which makes very important what Congress 
has done. Where Congress authorizes the President, it's one 
thing; where Congress has said nothing, still another; where 
Congress has specifically barred the activity in question, 
you're talking about a much, much higher bar for the President 
to jump over in order for the action to be found 
constitutional.
    Senator Feinstein. Thank you very much. If I might, let me 
go on to an environmental issue in the commerce clause. And as 
we all know, the commerce clause is used to legislate many 
different matters.
    I think the Lopez decision struck all of us very hard. That 
was a decision where the Court held that it was a violation of 
the commerce clause to restrict guns within so many feet of a 
school.
    In 1972, the Congress passed the Clean Water Act ``to 
restore and maintain the chemical, physical and biological 
integrity of the nation's waters.'' That's a quote.
    The act prohibited the discharge of any pollutant into 
navigable waters without a permit issued by the Army Corps of 
Engineers or the EPA. And for over 30 years, the courts and 
Congress gave these entities broad discretion to regulate water 
supply.
    In a 5-4 ruling in 2006, the Court reversed course and said 
that the Army Corps had exceeded statutory authority in 
limiting pollutants in certain wetlands.
    In California, these decisions have left seasonal streams 
unprotected by the Clean Water Act, opening them up to 
development, prone to flooding that were formerly protected 
areas.
    Further, the ambiguity left by the Court's decision has 
left EPA and the Army Corps with little clarity on the bounds 
of their jurisdiction under the act, leading to agency 
expenditures on establishing and defending their jurisdiction 
rather than on enforcement.
    Here is the question. When do you believe it is appropriate 
for a court to overturn the reasoned decision of a Federal 
agency that action is needed pursuant to a statute?
    Ms. Kagan. Senator Feinstein, I don't know the case that 
you mention at all. I think the typical approach of a court, 
obviously, when it interprets a statute, and this is very 
important, is to figure out what Congress meant when it enacted 
that statute.
    The court acts outside its proper boundary in trying to 
impose its own meaning on a statute or to improve on the 
meaning that Congress gave to the statute. Instead, the 
legislative power is Congress' and what the court is supposed 
to do is to figure out what Congress meant.
    Now, sometimes that's not so easy, because sometimes 
language is imprecise, new circumstances develop, it's unclear 
how Congress intended for a statute to apply, or sometimes 
Congress has even--just they make a mistake, they're careless, 
whatever. Sometimes you do that, right?
    So sometimes there's some lack of clarity, some ambiguity 
in a statute, and, there, the appropriate course, the course 
that the court has chosen, and I've written about this in my 
scholarly work, is to give deference to the agency.
    And the idea of the law in this area, it's called the 
Chevron Doctrine, the idea of the law is that Congress, in 
enacting a statute and in giving authority to the agency to 
implement that statute, has impliedly delegated power to the 
agency to clarify any ambiguities that might arise in that 
statute; and, that it's more appropriate for an agency to 
clarify those ambiguities than it is for a court to do so, and 
that's why Chevron says the courts are to give deference to the 
agency.
    I have written about this a good deal. My field is 
administrative law and I've written about the Chevron Doctrine. 
It's an important doctrine, for the reason I just said, that 
when there are ambiguities in a statute, when it's unclear how 
a statute should apply to a particular kind of administrative 
action, one possibility is that the court gets to decide that. 
The other possibility is that the administrative agency gets to 
decide that.
    The court says, in Chevron, it's better for the agency to 
do so, because the agency has more competence in the area, it 
has more expertise in the area, because the agency has some 
political accountability which courts do not have, and, also, 
because we think that Congress would have made that choice; 
that Congress would have wanted the entity with political 
accountability and with expertise to make the decision rather 
than the courts.
    In that sense, Chevron is actually a great example of 
courts saying that the court's own role should be limited. It 
should be limited there. It's with respect to an administrative 
agency that really has expertise and that has political 
accountability.
    Senator Feinstein. Thank you. That is very helpful. Let me 
ask a quick question in my remaining time on standing. With 
many environmental statutes, such as the Clean Water Act, the 
Endangered Species Act, the Clean Air Act, Congress has 
included provisions permitting citizens or citizen groups to 
bring lawsuits to redress violations of the law.
    When regulatory agencies fail to do their jobs, for any 
reason, be it incompetence, corruption, political interference, 
or lack of resources, citizen suits provide a means for private 
citizens to step forward and ensure that our Nation's 
environmental protections are not ignored.
    In a series of cases, it has been argued, however, that 
citizens do not have constitutional standing to bring these 
cases, because they cannot prove that they have been personally 
and concretely harmed by global warming, the pollution of 
waterways, or the depletion of species.
    So here is the question. Do you believe it is possible for 
citizens to demonstrate that environmental harms have injured 
them for constitutional purposes?
    Ms. Kagan. Senator Feinstein, the answer is yes, depending 
on--much depending on what Congress does. So let me step back 
for a minute.
    Article 3 has what's called a case or controversy 
requirement, and this is a very important aspect of the 
judicial system. It's really one of the things that keep judges 
judging and not doing anything else, which is that they can 
only decide concrete cases or controversies.
    They can't make pronouncements on issues, legal or 
otherwise. They can't issue advisory opinions. They can only 
decide cases or controversies. And one important aspect of what 
it means to be a case or controversy is that a person has 
standing to bring that case.
    And there are usually considered to be three requirements 
for that standing. First, a person has to have suffered an 
injury; second, the person has to show that that injury was 
caused by the action that she is complaining about; and, third, 
the person has to show that the relief that the person is 
seeking from the court will actually redress the injury.
    And all of those are important. They are all actually 
constitutional requirements. Now, that injury can be of many 
different kinds. It can be economic injury, but it can also be 
a kind of injury that you get when the environment is degraded 
and you can't use the parks in the way you would have wanted to 
use the parks.
    Senator Feinstein. Like asthma in Los Angeles from ozone.
    Ms. Kagan. The injury can be of a kind like that, 
certainly. Now, the Court has said that people have to be able 
to show that that person specifically has been injured, and 
there's some sort of specificity and concreteness requirement 
that the Court has used in the standing question.
    But the Court has also made clear that Congress can define, 
within broad limits, a set of people who Congress believes is 
injured by a particular practice, such that they can bring 
suit.
    So the standing question is one that I think is not 
entirely, but to a great extent, within Congress' control; that 
Congress can say, ``Look, there are some set of people'' and it 
gets to define those people as it wants who are injured by some 
kind of action and who should have an entitlement to go to 
court to redress that action.
    Senator Feinstein. In legislation, in other words.
    Ms. Kagan. That's right. That Congress does that in 
legislation and if Congress does do that in legislation, within 
broad limits, as I say, but if Congress does, the Court should 
respect that and should hold that such a suit complies with 
Article 3.
    Senator Feinstein. Thank you very much.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you very much, Senator Feinstein.
    We will take a short break, about 10 minutes, and then come 
back. Again, I appreciate Senators on both sides staying within 
their allotted time.
    We will have one change. Normally, we would go to Senator 
Grassley, but because of a conflict in scheduling, you are 
going to switch and we will go to Senator Kyl when we come back 
in. That is with the concurrence of both the Senators.
    We stand in recess.
    [Recess 11:40 a.m. to 11:56 a.m.]
    Chairman Leahy. Senator Kyl, and then we will go to Senator 
Feingold. Then we will break for lunch and come back. Emerging 
Senators will be next in line after they have to vote at the 
desk in that 2:15 vote and come back here. That is what I 
intend to do, and I will then recognize whoever is next in 
line.
    Senator Kyl.
    Senator Kyl. Thank you.
    Solicitor General Kagan, you can see how important my 
colleagues think my questions are here.
    Ms. Kagan. Or how important my answers.
    Senator Kyl. When we met, I tried to give you an idea of 
the questions that I would ask, and I think I can pretty much 
follow what I laid out to you. So let me do that. I also think 
most of my questions can be answered pretty succinctly, and I 
would appreciate if you could do that.
    So let me start by asking you the standard for judges in 
approaching cases that we talked about, starting with the 
President's idea. I will remind you. He has used a couple of 
different analogies. One was to a 26-mile marathon and said 
that in hard cases, adherence to precedent and rules of 
construction and interpretation will only get you through the 
first 25 miles.
    And he has said that while the law is sufficient to decide 
95 percent of cases, in the last 5 percent, legal process alone 
will not lead you to the rule of decision. He says the critical 
ingredient in those cases is supplied by what is in the judge's 
heart or the depth and breadth of the judge's empathy.
    My first question is, do you agree with him that the law 
only takes you the first 25 miles of the marathon and that the 
last mile has to be decided by what is in the judge's heart?
    Ms. Kagan. Senator Kyl, I think it's law all the way down. 
When a case come before the court, parties come before the 
court, the question is not do you like this party or do you 
like that party, do you favor this cause or do you favor that 
cause.
    The question is, and this is true of constitutional law and 
it's true of statutory law, the question is what the law 
requires.
    Now, there are cases in which it is difficult to determine 
what the law requires. Judging is not a robotic or automatic 
enterprise, especially on the cases that get to the Supreme 
Court. A lot of them are very difficult and people can disagree 
about how the constitutional text or precedent--how they apply 
to a case.
    But it's law all the way down, regardless.
    Senator Kyl. In the time of sentencing, a trial court might 
be able to invoke some empathy, but I cannot think of any other 
situation where, at least off the top of my head, it would be 
appropriate. Can you?
    Ms. Kagan. Senator Kyl, I don't know what was in the--I 
don't want to speak for the President. I don't know what the 
President was speaking about specifically.
    I do think that in approaching any case, the judge is 
required really, not only permitted, but required to think very 
hard about what each party is saying, to try to see that case 
from each party's eyes; in some sense, to think about the case 
in the best light for each party, and then to weigh those 
against each other.
    So I think that the judge is required to give consideration 
to each party, to try to figure out what the case looks like 
from that party's point of view, and that's an important thing 
for a judge to do.
    But at the end of the day, what the judge does is to apply 
the law. And as I said, it might be hard sometimes to figure 
out what the law requires in any given case, but it's all the 
way down.
    Senator Kyl. Statutory, Constitution, the law precedent.
    Ms. Kagan. That's correct.
    Senator Kyl. Now, when the President announced the 
retirement of Justice Stevens, he said judges--this is a 
slightly different formulation. So the next question has to do 
with the second way that he formulated it.
    He said, ``Judges should have a keen understanding of how 
the law affects the daily lives of the American people and know 
that in a democracy, powerful interests must not be allowed to 
drown out the voices of ordinary citizens,'' was the way he put 
it.
    Now, the media outlets have summarized this and called it 
the ``fight for the little guy sensibility.'' I am not sure 
that is exactly the way the President would put it. But you 
heard some of my colleagues here yesterday lament the alleged 
activism of the current Court in supposedly always ruling for 
the corporate interests or the interests of big business.
    Do you agree with the President and my colleagues that 
judges should take into account whether a particular party is a 
big guy or a little guy when approaching a question of law or 
that one side is powerful or that one side is a corporation?
    Ms. Kagan. Here is what I think. I think that courts have 
to be level playing fields and that everybody has to have an 
opportunity to go before the court, to state his case, and to 
get equal justice. And one of the glorious things about courts 
is that they do provide that level playing field in all 
circumstances, in all cases.
    And even when that level playing field is not provided by 
other branches of government, even when there is some imbalance 
with respect to how parties come to Congress or the President 
or the State Houses, the obligation of courts is to provide 
that level playing field; to make sure that every single person 
gets the opportunity to come before the court, gets the 
opportunity to make his best case, and gets a fair shake.
    Senator Kyl. Now, may I just--when you say level, to ensure 
a level playing field, you are not saying that if the parties 
come to court with positions that are unequal--that is to say, 
one party's position is better than the other party's 
position--that the court's obligation is to try to somehow make 
those two positions the same.
    Ms. Kagan. No, no, no. I mean, it's just a matter of 
everybody is entitled to have his claim heard. Everybody is 
entitled to fair consideration. It doesn't matter whether 
you're an individual or you're a corporation or you're the 
government.
    I mean, one of the really remarkable things about watching, 
actually, a Supreme Court argument is sometimes I go up there 
and I'm arguing for the government, very sort of--I mean, you 
would think it's kind of a favored position to be arguing for 
the government, and it turns out it's not.
    It turns out that the justices give you, as the 
government's representative, just as hard a time, maybe a 
harder time, than they give everybody else, and that's the way 
it should be. Whether you're the government, whether you're a 
corporation, whether you're a person, no matter what kind of 
person you are, no matter what your wealth, no matter what your 
power, that you get equal treatment from the Court.
    And what I meant by equal treatment is just that the Court 
takes your claim seriously, takes your case seriously, listens 
to you as hard as it listens to anybody else, and then makes 
the right decision on the law.
    Senator Kyl. During his confirmation hearing, Chief Justice 
Roberts said, ``If the Constitution says''--this was in 
response to a question, by the way. And he said, ``If the 
Constitution says that the little guy should win, the little 
guy is going to win in court before me. But if the Constitution 
says that the big guy should win, well, then, the big guy is 
going to win, because my obligation is to the Constitution. 
That's the oath.''
    Do you agree with Chief Justice Roberts?
    Ms. Kagan. I do, Senator Kyl.
    Senator Kyl. Now, one of the things that I brought up in my 
opening statement was, obviously, your clerkship for Justice 
Marshall and my belief that Justice Marshall's views are more 
along the line of viewpoint that President Obama expressed. And 
you wrote about this in more than one way.
    Let me just cite one thing you wrote about Justice 
Marshall's view, and I am quoting now. You said, ``In Justice 
Marshall's view, constitutional interpretation demanded above 
all else that the courts show a special solicitude for the 
despised and disadvantaged. It was the role of the courts in 
interpreting the Constitution to protect the people who went 
unprotected by every other organ of government, to safeguard 
the interests of people who had no other champion. The court 
existed primarily to fulfill this mission,'' you wrote about 
Justice Marshall.
    In fact, you also wrote that, ``If he had his way, cases 
involving the disadvantaged would have been the only cases the 
Supreme Court heard.''
    What is unclear to me is whether you agree with Justice 
Marshall's view of the role of the court in constitutional 
interpretation.
    Ms. Kagan. Senator Kyl, the last statement you read, the 
statement about it would be the only case, I think that that 
was a kind of jokey statement. So I would put that aside.
    I think what I was saying in that piece is consistent with 
what I've said to you. I think Justice Marshall's whole life--
and this is why I said he revered the Supreme Court. Justice 
Marshall's whole life was seeing the courts take seriously 
claims that were not taken seriously anyplace else.
    So in his struggle for racial justice, he could go to the 
State Houses or he could go to Congress or the President and 
those claims generally were ignored.
    Senator Kyl. Let me just interrupt for a second. You wrote 
here that, ``In constitutional interpretation''--so this is not 
just a factual matter between two parties. We are talking about 
interpreting the Constitution.
    He says the courts should show a special solicitude.
    Ms. Kagan. I think that was my words.
    Senator Kyl. Yes, correct.
    Ms. Kagan. And I meant special as compared with the other 
branches of government. In other words, that it was the court's 
role to make sure that even when people have no place else to 
go, that they can come to the courts and the courts will hear 
their claims fairly, and that was what I was saying was a 
wonderful thing about courts, a miraculous thing about courts; 
that you can be ignored in every other part of the government 
and you can come to a court and a court will say, ``It's our 
job to treat you with respect, with consideration, with the 
same kind of attention we give to everybody else.''
    Senator Kyl. Well, let me just ask you, do you believe, 
then--and it is hard, I realize, though you certainly know--you 
knew Justice Marshall very well. You knew his reasoning--that 
he would have agreed with Justice Roberts that if the big guy 
has the law on his side, the big guy wins; if the little guy 
does, then the little guy wins, and that is consistent with 
what Justice Marshall believed, or would he have expressed it 
more along the lines that some of my colleagues have here, that 
there is too much agreement with the corporate interests and 
big business, as one of my colleagues put it.
    Ms. Kagan. Senator Kyl, I guess two points. The first is I 
guess I don't want to spend a whole lot of time trying to 
figure out exactly what Justice Marshall would have said with 
respect to any question, because the most important thing--I 
love Justice Marshall. He did an enormous amount for me.
    But if you confirm me to this position, you'll get Justice 
Kagan. You won't get Justice Marshall, and that's an important 
thing.
    Senator Kyl. Yes, and I totally agree with you. It is not 
what Justice Marshall believed that is important here. It is 
what you believe. Since you have written so glowingly about 
him, you called it, in fact, his vision of the Court, a thing 
of glory, I believe.
    I am having a hard time figuring out whether, to the extent 
that you do and you have written glowingly about him, whether 
you would tend to judge in cases more actively or more with 
interest in protecting the rights of those who are 
disadvantaged, for example, or, as you have already expressed 
here, you would simply base it on the facts and the law and the 
Constitution.
    Ms. Kagan. The thing of glory, Senator Kyl, is that the 
courts are open to all people and will listen respectfully and 
with attention to all claims. And at that point, the decision 
is what the law requires.
    There may be differences as to what the law does require, 
but it's what the law requires, and that's what matters.
    I guess I would like to go back to--I'll just give you one 
case, just to make sure that----
    Senator Kyl. Well, can I just keep moving on? I know that 
the time--well, we do not have a lot of time, if I could, 
please.
    Do you agree with the characterization by some of my 
colleagues that the current Court is too activist in supporting 
the position of corporations and big business?
    Ms. Kagan. Senator Kyl, I would not want to characterize 
the current Court in any way. I hope one day to join it.
    Senator Kyl. And they said you are not political. I 
appreciate it. Let me explore your judicial philosophy just a 
little bit more here, whether you agree with a comment that 
Justice Marshall said. He said, ``You do what you think is 
right and then the let the law catch up.''
    Do you agree that that is the right way to approach 
judging?
    Ms. Kagan. The way I would judge is the way I told you, 
that you make sure that you give very respectful consideration 
to every person and then determine what you think the 
Constitution or statute, if the case is a statutory case, 
requires.
    Senator Kyl. So you would not have phrased your philosophy 
as Justice Marshall phrased his.
    Ms. Kagan. I actually never heard Justice Marshall say 
that. I know another co-clerk, another clerk in a different 
year, wrote that she did. I will say, Justice Marshall was a 
man who spent many decades of his life fighting for the 
eradication of Jim Crow segregation, and you can kind of see 
why he thought that you should work as hard as you can----
    Senator Kyl. He worked outside the box.
    Ms. Kagan--[continuing]. And eventually the law will catch 
up. And eventually the law did catch up in Brown v. Board of 
Education.
    Senator Kyl. That is why it did not seem to me to be out of 
character for him to have said that.
    Is there anything that you have written--obviously, you 
have not rendered decisions--which would enable us to verify 
that this is your approach to judging? Can you think of 
anything you have written or if you would like to just supply 
this for the record, if it does not come to you immediately, 
that would verify what you have said for us here, that would 
help us to confirm that what you have expressed to us today is, 
in fact, a view that you have expressed about judging?
    Ms. Kagan. Well, I don't think I've written anything about 
judging in that way, but I think that you can look to my life, 
that you can look to the way I interact with people.
    I mean, my deanship was a good example, but the way I acted 
as Solicitor General, as well, the kind of consideration that 
I've given to different arguments, the kind of fairness that 
I've shown in making decisions. I think that those would all be 
appropriate things to look to to try to get some understanding 
of this aspect of me.
    Senator Kyl. All right. Let me ask you about some of the 
bench memos. I talked to you a little bit about that when you 
were in my office, as well, and, obviously, we only have time 
to mention a few.
    But what I was suggesting is that your advice to your boss 
seemed to be not just pragmatic, but almost political in 
advising him either to vote to take a case or not to take a 
case on cert.
    For example, in Lanzaro v. Monmouth County, you wrote, and 
I quote, ``Quite honestly, I think that although all of the 
lower court's decisions is well intended, parts of it are 
ludicrous.'' But you discouraged Justice Marshall from voting 
to review the decision, because you were afraid that the Court, 
and I am quoting now, ``might create some very bad law on 
abortion and/or prisoners' rights.''
    Now, when deciding whether or not to take a case, should 
the focus not be on whether the appellant or the appellee has 
the facts and the law on their side rather than worrying about 
whether justices might, in your view, make bad law?
    Ms. Kagan. Senator Kyl, let me step back just a little bit 
and talk about what clerks did for Justice Marshall. We wrote--
Justice Marshall was not in what's called the cert pool. We 
wrote probably thousands of memos over the course of the year 
about what cases the Court should take and what cases the Court 
should not take.
    And when I was clerking for Justice Marshall, I was 27 
years old and Justice Marshall was an 80-year-old icon, a lion 
of the law. He had firm views, he had strong views. He knew 
what he thought about a great many legal questions. He had been 
a judge for some fair amount of time.
    And the role of the clerks was pretty much to channel 
Justice Marshall, to try to figure out whether Justice Marshall 
would want to take a case, whether Justice Marshall would think 
that the case was an appropriate one for the Court to take and 
set aside. And that's what I did and I think that that's what 
my co-clerks did, as well.
    Senator Kyl. Well, do you think you would approach certain 
decisions that way if you were on the Court?
    Ms. Kagan. I think that the most important factors in the 
cert petition process, which is, I think, one that I talked to 
Senator Kohl about maybe, are the ones I gave.
    First, most importantly are the questions of circuit 
conflicts, that the court--it's a very important responsibility 
of the courts to make sure that our law is uniform and to 
resolve any conflicts that appear among the circuit courts.
    Second is the Court should be available almost all the time 
where a judicial decision invalidates a Congressional statute; 
that Congress is entitled to that kind of respect, to have the 
Supreme Court hear the case before a Congressional statute is 
invalidated.
    Third, for some set of extremely important national 
interests, extremely important for any number of reasons, it's 
a small category of cases, but it's an important one, and I 
think that those would be the considerations that I would 
primarily use and those would--that is the way I would make 
decisions.
    Senator Kyl. All right. Some of these bench memos suggest 
other basis for making decisions. For example, in Cooper v. 
Kotarski, in assessing whether the Court should take the case, 
you wrote, quote, ``It's even possible that the good guys might 
win on this issue.''
    Now, that would not be a very good basis on which to 
suggest taking a case, would it? And who were the good guys?
    Ms. Kagan. As I took a look at that memo, Senator Kyl, that 
was just a reference to the people whom I thought Justice 
Marshall would favor on the law, and that's all the reference 
was meant to suggest; just the people whom I thought Justice 
Marshall would think had the better of the legal arguments.
    Senator Kyl. The reason I cited that one is there is a 
note--while you were at the White House, you were asked whether 
certain--or you asked a colleague, rather, whether certain 
organizations were on a list of organizations eligible for 
certain tax deductions, and you referred to two of them. One 
was the NRA, the other was the KKK, and you referred to them 
as, quote, ``bad guy orgs,'' I presume an abbreviation for 
organizations.
    So if you presented a case involving, for example, the NRA, 
would you consider the NRA to be a ``bad guy org'' deserving of 
defeat in the case?
    Ms. Kagan. Senator Kyl, I'm sure that that was not my 
reference. The notes that you're referring to are notes on a 
telephone call, basically me jotting down things that were said 
to me. And I don't remember that conversation at all, but just 
the way I write telephone notes is not to quote myself.
    Senator Kyl. So your belief is that you were quoting 
someone else when you wrote ``bad guy orgs.''
    Ms. Kagan. Or paraphrasing somebody else, but it was not--
--
    Senator Kyl--[continuing]. Those were not your----
    Ms. Kagan.--[continuing]. It was just telephone notes.
    Senator Kyl. And it was not your terminology, it was 
somebody else's.
    Ms. Kagan. As I said, or a paraphrase, but it was--the way 
I write telephone notes is just to write down what I'm hearing.
    Senator Kyl. You would not, in any event, put the NRA in 
the same category as the KKK, I gather.
    Ms. Kagan. It would be a ludicrous comparison.
    Senator Kyl. Thank you. In another case, in recommending 
the--this is United States v. Kozminski, in recommending the 
grant of cert, you noted that the Solicitor General was, quote, 
``for once on the side of the angels.''
    Now, obviously, it is not whose side you are on that makes 
the difference.
    Ms. Kagan. I hope that is not my good friend, Charles Fried 
I'm referring to.
    Senator Kyl. Indeed, it is. It is and was. How do you 
define who is on the side of the angels?
    Ms. Kagan. I have not seen that memo, Senator Kyl, but I'm 
sure it was saying essentially the same thing, which was the 
Solicitor General had the better of the legal arguments, as 
Justice Marshall would understand the legal arguments.
    Senator Kyl. For once, you said.
    Ms. Kagan. I'm sorry, Charles.
    Senator Kyl. Well, in your time as SG, have you made any 
litigation decisions based on an assessment of which position 
was the side of the angels?
    Ms. Kagan. I have tried very hard, Senator Kyl, to take the 
cases and to make the decisions that are in the interests of my 
client, which is the U.S. Government.
    Senator Kyl. And it would not be appropriate, as a member 
of the Supreme Court, to decide cases based on that either.
    Ms. Kagan. Senator Kyl, a Supreme Court justice needs to 
decide cases on his or her best understanding of the law.
    Senator Kyl. Let me ask you, in the minutes that remain 
here, about one of the decisions that you made in connection 
with a request by the Court for the SG's opinion. The case is 
Chamber of Commerce v. Candelaria. This is an Arizona decision, 
you will recall, that involved a 2006 law that then Governor of 
Arizona Janet Napolitano had signed and which requires all 
employers doing business in Arizona to participate in the 
Federal Government's eVerify system that verifies Social 
Security status, and also provides that employers who knowingly 
employ illegal aliens can be stripped of their business 
licenses.
    Several groups challenged the Arizona law, saying it was 
preempted by Federal immigration law, but the Federal district 
court in Arizona and a unanimous ninth circuit panel upheld the 
law.
    The opponents of the law asked the Supreme Court to take 
the case and strike down the Arizona law. And last November, 
the Supreme Court asked you, as Solicitor General, for the 
government's views.
    Ultimately, you decided to ask the Supreme Court to take 
the case and strike down the employer sanctions that are 
critical to making the Arizona law work.
    You and I talked about this case and you are familiar with 
it, to discuss it.
    Ms. Kagan. Yes.
    Senator Kyl. You did not argue that the Court should take 
it because there was a split in the circuits.
    Ms. Kagan. That's correct, Senator.
    Senator Kyl. Or that there had been an unconstitutional 
application of the law in any way.
    Ms. Kagan. Senator Kyl, I think what we argued in the 
petition was that the Arizona statute or at last this part of 
it was preempted by Congress and, therefore, the decision below 
was wrong, and that the reason for the Court to take the case 
was not only that it was wrong, because the Arizona statute was 
statutorily preempted, but also because this was an important 
question.
    It's one of the category of cases where----
    Senator Kyl. Right. It is that third category you said----
    Ms. Kagan. The third category.
    Senator Kyl--[continuing]. There were not very many, but 
where they are, they are important.
    Ms. Kagan. That's right. Lots of States are passing these 
kinds of laws and the guidance from the Supreme Court would be 
appropriate as to what kinds of legislation.
    Senator Kyl. Well, the Supreme Court is not in the business 
of giving guidance, though, is it?
    Ms. Kagan. Well, I think for the Supreme Court to set down 
its view of what the Federal statute preempts would be very 
helpful to the State legislatures.
    Senator Kyl. Sure. But the Court turns down hundreds of 
cases and I am sure its ruling in each case would be helpful.
    As I recorded your comment earlier this morning, in that 
third category, you said that it would have to be a strikingly 
significant issue for the Court to take the case in that third 
category of an important Federal question.
    Ms. Kagan. Senator Kyl, what we argued to the Court in 
the----
    Senator Kyl. No. You said it should be a strikingly 
significant issue, did you not?
    Ms. Kagan. I'm honestly not sure exactly the words I used.
    Senator Kyl. I got the quote accurately.
    Ms. Kagan. But if I might, Senator Kyl.
    Senator Kyl. Go ahead.
    Ms. Kagan. What we argued to the Court in Candelaria was 
that it was a Federal statute in this case--I know that--well, 
there was a Federal statute in this case. Our best read of that 
Federal statute was that it preempted the licensing provision 
of the Arizona law. That was our best understanding of what the 
Federal statutes did.
    And that because there's so much legislative activity in 
this area happening across this country right now, that for the 
Supreme Court to decide that question and to determine whether 
the Federal statute preempted the State law was one of those 
moments where the issue is of real significance across the 
country.
    Senator Kyl. So you think that that made it strikingly 
significant.
    Ms. Kagan. I think that this is a significant issue and 
people, I think, on both sides agree that it is a significant 
issue as to whether the Federal statute prevents States from 
doing this. And this is, again, not a decision or a view as to 
whether these State statutes are good or bad. They might be 
very good.
    The only question is whether Congress has, by legislation, 
and here the legislation was in the immigration----
    Senator Kyl. But here is what the Federal law--I mean, it 
says this is an area for the Federal Government. But under the 
Federal law, States are explicitly permitted to legislate in 
this area, and I am quoting the statute now, ``through 
licensing and similar laws.''
    And you argued in your brief that the State's revoking of a 
license did not qualify for that explicit exception to Federal 
preemption under the Federal statute. Right?
    Ms. Kagan. Senator Kyl, what we argued in the brief was 
that the Arizona law did not qualify under that exception, 
because what that exception was meant to talk about were sort 
of traditional licensing laws of the kind when you license a 
lawyer or you license a doctor or you license a chiropractor, 
but not a law that essentially imposes sanctions on any 
employer for hiring illegal aliens.
    Senator Kyl. But this was a statute that dealt with--the 
Federal statute deals with hiring people who are not qualified 
to be hired in the country, who are called illegal aliens. And 
it said that the Federal Government has the preemption in this 
area, except where States pass laws through--or attempt to deal 
with the issue through licensing and similar laws.
    So was it not inferred there that the Court meant for 
States to be able to do exactly the kind of things that the 
State of Arizona did? It was not limited to licensing a 
professional. It was the denial of a license to someone who was 
violating the law.
    Ms. Kagan. Yes. We definitely took a different position, 
Senator Kyl, and the reason we did is this statute clearly 
would prevent a State from saying anybody who hires an 
undocumented or illegal alien would be fined $25.
    The statute clearly prevents a State from saying that, from 
imposing a penalty on an employer who hires an illegal alien. 
And if the statute clearly prevents a State from imposing a 
penalty like that, then surely the statute also prevents a 
State from imposing a penalty, which is the withdrawal of any 
of the----
    Senator Kyl. Well, that is the argument that you made. The 
Federal Government could impose a fine, but the Federal 
Government does not get into the licensing of businesses. That 
is a State activity.
    So I could argue just as easily, and I am sure the Court 
will consider the argument, that, of course, that is the kind 
of thing that States can do. And so just as a State could grant 
a license, it could also take a license away if a business 
violated the law.
    We will talk a little bit more about this, I guess, in the 
second round. But the reason that I raise this is that my guess 
is, and I would ask you whether you agree, that without the SG 
having taken the position that you did, that it is much less 
likely that the Court would have taken the case. Would you 
agree with that?
    Ms. Kagan. I don't know that, Senator Kyl. Sometimes they 
listen to us and sometimes they don't. Sometimes we tell them 
in no uncertain terms this is a terrible case to take, and they 
take it anyway.
    Senator Kyl. Well, the stats are 80 percent. So that is a 
pretty good percentage, when you ask them to take a case and 
they do.
    Chairman Leahy. Was this a case where the Supreme Court 
asked the Solicitor General to file a brief?
    Senator Kyl. Yes.
    Ms. Kagan. This is a case where--and those of--the 80 
percent statistic, I think, is the statistic when the 
government files its own cert petition. I think that we do much 
less well with the Court when we just--when we answer the 
Court's requests for our advice on whether to take----
    Senator Kyl. When we have the next round, I will have the 
exact statistic on that.
    Ms. Kagan. I hope we do well.
    Senator Kyl. I think you do very well.
    Chairman Leahy. Senator Feingold. And then when Senator 
Feingold finishes, we will break. And I would reiterate to 
Senators--and, Senator Kyl, you are in the leadership, you 
probably know this, but apparently the vote is at 2:15. I will 
vote at the desk and come back and I will recognize the next 
person in line, which would be on the Republican side.
    Senator Feingold.
    Senator Feingold. Thank you, Mr. Chairman.
    I guess I would like to start by picking up on your 
discussion with Senator Hatch about the Citizens United 
decision. Senator Hatch talked about a book with a single 
mention of a candidate and pamphlets designed by small S 
chapter corporations.
    But, of course, as you indicated already, what Congress 
addressed in the McCain-Feingold bill was TV and radio election 
advertising right before the election, paid for out of the 
treasury funds of unions and corporations, both profit and 
nonprofit.
    So it was the Supreme Court that instead reached out and 
asked for re-argument and called into question a 100-year-old 
statute that prohibited corporations, more generally, from 
spending money on elections.
    I just want to clarify this. So let me ask you. Was it not 
highly unusual, if not unprecedented, for the Court to do this?
    Ms. Kagan. Senator Feingold, the U.S. Government in the 
case did urge the Court not to decide the case on the grounds 
that it did. It's obviously unusual whenever the Court reverses 
a precedent in this way.
    The Court thought it had grounds to do so, but it is an 
unusual action, yes.
    Senator Feingold. And was it not unusual how they got to 
the point where they could make that decision based on the 
facts?
    Ms. Kagan. Senator Feingold----
    Senator Feingold. It was unusual, was it not?
    Ms. Kagan. Senator Feingold, certainly, the case, as it 
came to the Court, did not precisely address--did not address 
the question that the Court ended up deciding.
    Senator Feingold. Thank you. And the reason that many 
people, including the President and many members of the 
community were outraged by the decision was not simply because 
the Court reversed its 2003 decision upholding the issue and 
provisions of the McCain-Feingold bill, but it also reached out 
to decide an issue that was not raised by the case at hand and 
overturn law dating back more than a century. Did it surprise 
you that the Court's decision caused such an uproar?
    Ms. Kagan. Oh, I don't know, Senator Feingold. I'm not, you 
know, an expert in public reaction to things and I don't think 
that the Court should appropriately consider the public 
reaction in that--in that sense.
    Senator Feingold. Do you take note of public reaction to 
Supreme Court decisions?
    Ms. Kagan. Senator Feingold, I read the same newspapers 
that everybody else does.
    Senator Feingold. But you're not willing to comment on 
whether this was a greater reaction or this was a greater 
reaction that in other----
    Ms. Kagan. I don't know, Senator.
    Senator Feingold. All right. Let me go to national security 
issues that you already discussed a bit with Senator Feinstein. 
I think it's safe to say that you agree that the Youngstown 
concurrence was the appropriate starting point for these types 
of questions having to do with whether statute is something 
that can be overridden.
    Go back to your understanding of how to apply Justice 
Jackson's test. Specifically, do you read it to allow for any 
circumstances where the President could authorize in violation 
of the criminal laws that Congress has passed?
    Ms. Kagan. Where the President could authorize the 
violation of criminal laws that Congress has passed?
    Senator Feingold. Congress has passed.
    Ms. Kagan. Senator Feingold, I couldn't think of any 
circumstance offhand. I don't want to say categorically that 
there might never be one if something was very much at the core 
of presidential power under Article 2. But it's--it would be a 
highly, highly unusual circumstance.
    Senator Feingold. And you used the phrase ``few and far 
between'' but when pressed about a circumstance where it could 
occur, the example you gave was not something out of Article 2 
or out of the Commander-in-Chief Powers. What you suggested was 
that, of course there could be a situation where Congress 
passes a law that would violate, let's say, the explicit pardon 
power which, of course, I can see. But do you know of any 
examples of where this could occur simply within the context of 
the Commander-in-Chief Powers under Article 2?
    Ms. Kagan. It's interesting, Senator Feingold, because I 
think I read someplace where you stated a hypothetical which 
was, suppose Congress made somebody else Commander-in-Chief and 
the President said, I'm going to ignore that and I'm going to 
continue to be Commander-in-Chief. I don't know where I read 
that, that you had said that. It struck me as a good example of 
something where, you know, that's core Commander-in-Chief 
power.
    Senator Feingold. But, you know, of no actual example in 
any court case where the Supreme Court has upheld a 
presidential assertion of this power in a way that would 
override a criminal statute; is that correct?
    Ms. Kagan. I do not know of any court case like that, 
that's correct.
    Senator Feingold. Let me ask you a question; I asked 
Justice Scalia about this. What is the proper role here of the 
Judiciary in resolving a dispute over the president's power to 
disobey an express statutory prohibition?
    Ms. Kagan. I think the Court has an important role. I mean, 
the Court generally, I think, has a very important role in 
policing constitutional boundaries. And that might be policing 
the boundaries when Congress or some other governmental actor 
violates somebody's individual rights in a way that's not 
permitted by the Constitution, or it might be a case in which 
one branch impermissibly interferes with another branch or 
impermissibly infringes on the appropriate authority of another 
branch. So there is some category of cases, of course, as 
between the political branches, that the Courts sort of have 
left to the political branches to work out themselves. And to 
the extent that the political branches can work their problems 
out by themselves, I think that that's generally considered and 
it's generally right to be considered a good thing. But there 
are some times when the Court really does have to step in and 
police those boundaries and make sure that the president 
doesn't usurp the authority of Congress or vice versa.
    Senator Feingold. In 2007 you gave a speech to Harvard Law 
School graduates about the rule of law. And you talked about an 
infamous incident where Attorney General John Ashcroft was 
asked to authorize an illegal government program while 
hospitalized for an emergency operation and he refused. And you 
told the graduates that they too would, ``face choices between 
disregarding or upholding the values imbedded in the idea of 
the rule of law.'' What prompted you to do discuss this theme 
and in this incident in that speech? Do you think that this 
incident holds lessons for Supreme Court Justices as well?
    Ms. Kagan. Senator Feingold, it was a speech I gave to the 
graduating class. When I speak to students and particularly 
when I speak to them at important moments in their life like 
graduation when they are really thinking about what careers 
they want to have in the law, you know, I try to tell them some 
things that will stick with them and be meaningful to them and 
some things that I think that it's important for them to keep 
in mind as they start their careers. And the rule of law and 
adherence to the rule of law there's no more important thing 
for any law school graduate to keep in the forefront of his or 
her minds than that.
    And that was a speech where I thought that there were some 
current-day incidents as well as I used some historical 
incidents to just talk about the rule of law. About how no 
person how ever grand, how ever powerful is above the law; to 
talk about the importance of adhering to the law no matter the 
temptations, no matter the pressures that one might be subject 
to in the course of one's career. And I think that there's 
nothing more important than that, and that's what I tried to 
express in that speech.
    Senator Feingold. What was it about the Ashcroft incident 
that fit that category?
    Ms. Kagan. Well, that was--that was one of the examples I 
used as Senator Ash--then Attorney General Ashcroft had really 
taken a very principled stand. And I thought that that was 
notable and pointed that out along with a number of others 
where people have taken very principled stands notwithstanding 
some considerable amount of pressure to do otherwise.
    Senator Feingold. Thank you. Let's turn to the Second 
Amendment. I've long believed that the Second Amendment grants 
citizens a right to own firearms. I was pleased when 2 years 
ago in the Heller decision the Supreme Court agreed with this 
view. And, as you know, the Second Amendment on its face 
applies only to the Federal Government, not to the states, but, 
of course the Court just ruled in the McDonald case that the 
Second Amendment rights apply to the states via the Fourteenth 
Amendment's guarantee of due process of law.
    Now, there will undoubtedly be more cases in the future 
that test the limits of the government's ability to regulate 
the ownership of firearms. Accordingly Heller specifically 
indicated that prohibitions on the possession of guns by felons 
and the mentally ill, laws forbidding guns in sensitive places 
such as schools and government buildings and concealed carry 
restrictions could pass muster. And the Court indicated that 
the examples it gave of permissible restriction was not an 
exclusive list.
    You worked on gun issues when you were in the Clinton White 
House or you were familiar with the kinds of restrictions that 
Congress has considered and you obviously are familiar with the 
Supreme Court cases. Can you give us a sense of how you would 
approach a challenge to the constitutionality of a law or 
regulation that restricts gun ownership short of the outright 
ban and the trigger-lock requirement that were overturned in 
Heller?
    In other words, how in your view should a Supreme Court 
Justice go about deciding whether a law infringes on Second 
Amendment rights?
    Ms. Kagan. Well, Senator Feingold, I think that the Court--
I have not--first, I should say, I have not read all the way 
through the McDonald decision because it came out yesterday. 
But, I think that it does not suggest anything to the contrary 
of what I'm going to say.
    I suspect that going forward the Supreme Court will need to 
decide what level of constitutional scrutiny to apply to gun 
regulations. Some people need Heller to apply strict scrutiny. 
Other people think that Heller suggests a kind of intermediate 
scrutiny. I've seen sort of both views of that decision. It's 
clearly a decision that will come before the Court.
    I think as you said, the Heller decision clearly does say 
that nothing in it is meant to suggest the unconstitutionality 
of certain very long-standing kinds of regulations, and the 
felon in possession example is the first on that list. But the 
Court also says that the list is not exhaustive. And so I think 
that there will be some real work for the courts to do in this 
area.
    I should say that the work that I did in the Clinton White 
House was all work, of course, before Heller was decided. And 
so we really didn't, you know, apply this kind of scrutiny, 
this kind of examination to those--to those decisions. What 
President Clinton was trying to do back in the 1990s and what I 
as his policy aide was trying to help him do was to propose a 
set of regulations that had very strong support in the law 
enforcement community, that had actually bipartisan support 
here in Congress to keep guns out of the hands of criminals, to 
keep guns out of the hands of insane people. It was very much 
an anti-crime set of proposals that I worked on back then in 
the 1990s. And, you know, I think that we did not consider 
those regulations through the Heller prism just because Heller 
didn't exist at that time. But I do think that these cases may 
be coming before the Court and the Court will consider sort of 
regulation by regulation which meets that standard.
    Senator Feingold. Going back to campaign finance issues. 
Again, because of your work in the Clinton White House and your 
advocacy for the government's position in the Citizens United 
case, you're very familiar with this area. I obviously care a 
lot about this issue and so I'm pleased that obviously your 
learning curve isn't very steep on this topic. But I'm sure 
that you heard that Senator McConnell has attacked you because 
of your previous work as a policy aide in the area. He thinks 
you approach election law as a political advocate and that you 
were committed to a political agenda. And he says that's, ``the 
very opposite of what the American people expect in a judge.''
    I think it's important to point out that when you're in 
White House counsel's office, you have the job of evaluating 
the constitutionality of various policy proposals. In there you 
weren't shy about expressing doubts about whether certain ideas 
could survive a constitutional challenge. For example, in a 
note to Jack Quinn that was in the documents provided the 
committee, you said, ``I think it's pretty clear that a ban on 
non-citizen contributions be unconstitutional (though abandoned 
foreign contributions would not be).''
    In another memo to Quinn you expressed doubt that any 
constitutionally valid proposal to limit independent 
expenditures exists. So you said you were, ``weary of touting 
this notion to the President.''
    It seems to me that you were quite aware of the need to 
think critically and legally as well as politically as you 
carried out your responsibilities. Can you say a little bit 
about the process of reviewing draft legislation in the 
counsel's office and the importance of developing legislation 
that is consistent with Supreme Court precedent as it exists at 
the time?
    Ms. Kagan. Senator Feingold, I tried my hardest when I was 
in the--when I worked in the Clinton Administration, including 
as a lawyer, to provide good legal advice to the President. 
Now, it's a context in which one is dealing with law and policy 
and politics at the same time. That's the kind of institution 
it is. But it's very important for political figures and for 
the policy people to understand what the law requires and what 
the law permits and for lawyers to give good advice on those 
topics and that's what I tried to do.
    I should say that none of what I did in the Clinton White 
House whether as a lawyer for the Administration or as a policy 
person for the Administration really has much to do with what I 
would do as a judge.
    I know that when Chief Justice Roberts was here and he 
talked about a position that he had had in the Justice 
Department, I think he separated out those two quite clearly. 
And I think he was right to do so. But one is simply in a 
different position and at the same time as one is trying to 
provide good and independent legal advice to the President, one 
is also part of the President's team and doing so in that 
context. A very, very different kind of context from the 
context that I would be approaching cases as a judge.
    But I will say that I think that my experience in the White 
House during the 1990s is valuable in one sense, which is that 
it taught me to very much respect the other branches of 
government. You know, I'm not a person whose experience is only 
and all about courts. I don't think courts are all there is in 
this government. I think that the political branches, Congress 
and the President are incredibly important actors and should be 
making most of the decisions in this country. Courts do police 
the constitutional boundaries and do ensure that Congress and 
the President don't overstep their role, don't violate people's 
individual rights. But when it comes to policy, it ought to be 
courts that--excuse me, it ought to be Congress and the 
President that do the policymaking. And the courts ought to 
respect that and ought to defer to that.
    And I think that my experience in the executive branch and 
dealing a lot with Congress has made me very respectful of the 
President's role and Congress's role in our government.
    Senator Feingold. I think that's an excellent answer. I 
thank you for it.
    I'm going to turn to something that requires a little more 
background now. A question that seem especially pertinent in 
the wake of the Deep Water Horizon disaster. In 1989 the 
largest oil spill in American history decimated Prince William 
Sound when we watched with horror as oil from the Exxon Valdez 
seeped into one of our most fragile ecosystems and caused 
tremendous damage. At the time it was hard to imagine that we 
would ever again see an oil spill of this magnitude or this 
kind of environmental damage. Tragically, we now know better.
    Now, as was discussed by a number of Senators yesterday, 
after extensive litigation a jury in Anchorage awarded $5 
billion in punitive damages to the plaintiff in the Exxon 
Valdez case which at the time was less than Exxon profits in 
1988 and is now less than the total profits Exxon took home in 
the first quarter of 2010. Nineteen years after the jury 
awarded that amount, Alaskan landowners and commercial 
fishermen had still not received a single penny of that $5 
billion award and we were hoping that the Supreme Court would 
finally vindicate their claims.
    But instead of considering the need to punish Exxon and 
deter this sort of conduct in the future, the Court 
manufactured a new rule and concluded that the award was 
excessive. In reaching that decision the Court stated that 
Exxon and other corporations need to have predictability so 
they can look ahead and know what the stakes are when they 
choose one action or another.
    Now, it's not hard to read this decision, especially in 
light of what's happened in the Gulf, as the Supreme Court 
giving a free pass to reckless corporations even when our 
health and environment are at stake. This is also one of many 
decisions over the last decade where the Court has bent over 
backwards to find a way to protect corporate interests.
    One of the judiciary most important roles is to prevent 
powerful groups and corporations from running rough shot over 
the rights of individuals. What did you think of the Exxon 
decision and do you agree that courts have an important role to 
play in protecting people who are injured by corporate 
misconduct?
    Ms. Kagan. Senator Feingold, courts have an important role 
to play in protecting people under the law who are injured by 
corporate misconduct or by any other. This is an active area of 
the law, this question of what limits should be placed, if any, 
on punitive damage awards.
    What the Supreme Court did in the Exxon case was really to 
decide it under its common law maritime powers. This was 
actually not a due process case as which some prior punitive 
damages cases have been. Instead what the Court decided, a 
majority of that Court, was that there was an appropriate ratio 
of one to one, I believe it was, for punitive damages as 
compared with compensatory damages as a matter of Federal 
common law. And the relevance of that fact is that common law 
typically can be overturned by statute. And so that gives 
Congress an important role to play in this area. That would, of 
course, not be the case to the extent that any limits on 
punitive damages were a matter of the Constitution. But as I 
understand the Exxon decision, the Exxon decision was based on 
common law power rather than a constitutional ruling.
    Senator Feingold. Let me do something completely different. 
Last year I asked Justice Sotomayor how a Yankees' fan could 
understand the everyday challenges of rural and small-town 
Americans in Wisconsin who root for the Brewers or Packers. I 
understand you're a Mets fan, which at least is more the 
underdog over the----
    [Laughter.]
    Senator Feingold.----
    Ms. Kagan. I don't know if it's more the underdog----
    Senator Feingold. Well, traditionally, certainly.
    [Laughter.]
    Senator Feingold. So, first of all, if you're confirmed it 
should make for an interesting dynamic on the Court between the 
two of you, but I want to ask you the same question.
    You grew up in Manhattan. You were a dean at Harvard Law 
School and you've lived in big cities most of your life. And 
there may be a perception on some people's part that you may 
not completely understand what many Americans are struggling 
with right now. In fact, at a recent town hall meeting I held 
in Stephens Point, Wisconsin one of my constituents asked why 
nominees to the Supreme Court always seem to be from the east 
coast when we have plenty of fine candidates in the Midwest.
    How will you strive to understand the effects of the 
Supreme Court's decisions in the lives of millions of Americans 
who don't live on the east coast or in our biggest cities?
    Ms. Kagan. Senator Feingold, does it count that I lived in 
Chicago for some period of my life?
    Senator Feingold. Well, you're getting closer.
    [Laughter.]
    Ms. Kagan. Senator Feingold, I hope I've always been a 
person who's able to see beyond my own background and to listen 
hard to people. Not only we've talked about listening hard to 
people of different political persuasions and views, but to try 
to learn from people who have different geographic backgrounds, 
different religious backgrounds, different racial backgrounds. 
I mean, I think that this is something not only that makes a 
good judge, but that makes a good human being is to try to 
learn from people other than yourself. And I hope I've used the 
opportunities that life has provided me in my life to do that.
    Senator Feingold. I mentioned in my remarks on Monday that 
public confidence in the Court is extremely important just as 
it is crucial that the public has confidence in the integrity 
of its elected representatives. Last week there were news 
reports that the judge who overturned the Obama 
Administration's moratorium on deepwater drilling may own stock 
in energy companies. It's very damaging to the judiciary when a 
judge's neutrality can be questioned which is why I think, 
obviously, the ethical choices of a judge must be beyond 
reproach.
    What do you think are the most important ethical questions 
facing the judiciary, particularly the Supreme Court, and will 
you be an advocate within the Court and the judiciary for 
addressing these issues forthrightly and strongly?
    Ms. Kagan. Well, certainly, Senator Feingold, what Chairman 
Leahy opened up with which is the whole question of making sure 
a judge is appropriate--is recused from cases that a judge 
should be recused from. And there are obviously some hard calls 
there and some judgment calls. But taking those recusal rules 
very seriously is something that any judge should do. And I'm 
not speaking particularly about this case, the case that you 
mentioned which I know nothing about, but in general I think 
judges should approach their recusal obligations with a great 
deal of seriousness and care.
    Senator Feingold. And when we spoke in my office, you 
indicated that you had just recently learned that the Supreme 
Court was basically exempt from the code of judicial conduct 
and the rules that the judicial conference puts in place to 
apply it and so you didn't really have an opinion about it. But 
now that you've had a chance to think about it, do you think, 
for example, that Supreme Court Justices ought to be able to 
have contacts with parties to the case that other judges can't?
    Ms. Kagan. Senator Feingold, I really haven't thought about 
that issue since we talked about it. And I would want to speak 
with the people whom I hope would be my colleagues about it 
before I answer that question. I think it's an important 
question and one worthy of real consideration.
    Senator Feingold. All right. I want to talk with you now 
about the issue of forced arbitration which I've been working 
on for about a decade. More and more powerful economic 
interests are forcing consumers and employees to bring their 
disputes not to the courts but to a parallel legal system where 
the rule of law barely applies and where the outcome I think is 
stacked against them.
    A century ago Congress passed the Federal Arbitration Act 
to allow parties who wanted to take their disputes to 
arbitration to enforce the results of the arbitration in court. 
In the last several decades, however, the Supreme Court has 
twisted this law to allow banks and mortgage companies, health 
care providers, big Agri- businesses and others to enforce so-
called ``take-it-or-leave-it contracts'' that force people to 
use arbitration even if they don't want to. I think that's 
wrong and Congress needs to change it.
    And just this past week in the Rent-A-Center case the Court 
held that in most cases where a claim is made that enforcement 
of an arbitration clause would be unconscionable it would be 
the arbitrator--the arbitrator who gets to rule on that issue. 
Do you understand why the Supreme Court's decisions in favor of 
powerful interests who want to force consumers and employees 
into arbitration against their will are so troubling to those 
who believe that our courts must continue to be available to 
enforce consumer protection, employment discrimination and 
other laws written to protect the powerless from misconduct by 
the powerful?
    Ms. Kagan. Senator Feingold, I have not had an opportunity 
to read that case. It was not one that the Solicitor General's 
office participated in and I don't have a view of it or much 
knowledge about it. I think that in this--in this--in that case 
the Supreme Court was interpreting a Congressional statute and 
this is another of the areas where Congress does indeed get to 
state the rules. So to the extent Congress thinks the Court got 
it wrong in that case or in any other regarding arbitration, I 
think it's appropriate and the Court would and should respect 
what Congress does.
    Senator Feingold. With regard to financial regulation. I've 
heard a lot of anger from my constituents about financial 
institutions that have acted irresponsibly and then looked to 
the public for a safety net when things went wrong. That's in 
part why I pose the Wall Street bailout, to take perhaps the 
most egregious example. Since the fall of 2008 the Federal 
Government provided approximately $170 billion in bailout 
funding to the insurance giant AIG. But in contrast to the many 
workers in Wisconsin, and others who faced a cut in their 
benefits and pensions because of the recession, AIG insisted 
incredibly that it was contractually obligated to pay roughly 
$165 million in bonuses to its executive employees even as it 
was staying afloat with taxpayer money. I found it hard to 
believe that the bonuses were legally required. So I was 
intrigued by a recent piece written by Noah Feldman, who I 
believe you hired when you were at Harvard. Feldman called for 
a new constitutional vision that would, ``focus on government's 
duty to protect the public not the bankers who needed to be 
bailed out in the first place.''
    In light of the recent financial crisis, how should the 
courts evaluate the constitutionality of government regulation 
of big corporations and financial markets and other efforts to 
protect citizens and consumers from economic disaster?
    Ms. Kagan. Senator Feingold, it's a very broad question and 
I guess I couldn't answer it except, you know, with respect to 
a particular case, a particular set of circumstances, a 
particular constitutional provision. I've not read Noah 
Feldman's article on this so I can't talk about that. But I 
think, you know, the duty of the Court is obviously to apply 
the constitution to apply the statutes in any case that comes 
before it. And to the extent that the Constitution or some 
particular statute made illegal some of the conduct that you're 
talking about, the duty of the Court is to enforce that.
    Senator Feingold. One last question. As you know the 
appointment of so-called ``Czars'' by the White House got a lot 
of attention last year. Although there was certainly a 
political component to some of the criticism, I did think there 
was some legitimate matter that needed to be explored, 
particularly since there seems to be a trend over the last 
several administrations and I held a hearing on the topic.
    You've written a lengthy and impressive Law Review article 
about the President's ability to direct and control action by 
administrative agencies so I'm interested in your perspective. 
Do you think there are any constitutional problems with 
presidents relying on non-Senate confirmed Czars to direct 
administrative policy rather than the heads of administrative 
agencies? And how do you think Congress can exercise meaningful 
oversight over the Czars operating within the White House when 
the White House counsel often takes the position that they 
should not testify before Congress about their activities?
    Ms. Kagan. Senator Feingold, I think that there are 
important considerations on both sides of this question. On the 
one hand the President wants to have advisors in appropriate 
positions, advice he can trust, advice he can count upon. On 
the other hand Congress has an important interest in 
accountability and making sure that the President and the 
President's actions can be held to account in this institution.
    I think that the balance between those two, when it comes 
to the President appointing certain people as Czars or whatever 
you want to call them, probably is most appropriately 
determined by the political branches themselves, by the give 
and take, the back and forth between Congress and the 
President. Congress, of course, has many ways to express to 
Presidents that it doesn't like some set of actions that he's 
taken including some appointments that he's made.
    I suspect that a judicial case on that subject might be a 
last resort rather than what seems to me to be the more common, 
and I think the more appropriate way of dealing with a conflict 
and a disagreement as to this matter which is Congress and the 
President kind of battling it out as to the way he should 
appoint people.
    Senator Leahy. That will be it for this morning. We'll come 
back within a few minutes after the vote which begins at 2:15. 
I will then recognize the next Republican Senator in line and 
go to the next Democratic Senator.
    I hope you get some lunch.
    Ms. Kagan. Thank you, Mr. Chairman.
    Senator Leahy. General, you're the one who has had to do 
all the work here this morning. I appreciate your testimony. We 
stand in recess.
    [Recess 1 p.m. to 2:27 p.m.]
    Chairman Leahy. I'd welcome everybody back. I understand 
that the next person to question is Senator Grassley. Could you 
swap places with somebody else?
    Solicitor General Kagan, glad to have you back. I hope you 
at least had a chance to have some lunch.
    Solicitor General Kagan. I did, Mr. Chairman. Thank you 
very much.
    Chairman Leahy. Good.
    Senator Grassley.
    Senator Grassley. Glad to be with you, Ms. Kagan. In an 
interview published May, 2004, in the Metropolitan Corporate 
Counsel, you stated, ``Our courts are called upon to decide 
important matters, matters that often have great public impact. 
The attitude and views that a person brings to the bench make a 
difference in how they reach those decisions. So the Senate is 
right to take an interest in who these people are and what they 
believe.''
    Could you explain what kind of attitudes and views you were 
talking about in the quote? What attitude and views would you 
bring to the Supreme Court?
    So I will stop here: third, and most importantly, how will 
they ``make a difference'' in how you, reach decisions? And 
``make a difference'' are words out of your quote.
    Solicitor General Kagan. Thank you, Senator Grassley. This 
really goes back to the questions I started with Senator Leahy 
about. Senator Leahy asked me, did I think that the Senate had 
an important role to play in this process. And I said, yes, it 
did, that the matter of confirming a Supreme Court justice is a 
highly significant one for the country, and that the Senate has 
an important role to play.
    Different justices approach constitutional interpretation 
differently, approach statutory interpretation differently. The 
Senate has both an opportunity, but I think also a 
responsibility, to try to delve into those matters and to try 
to figure out what stances, what approaches a person is likely 
to bring to the court.
    I tried to suggest to Senator Leahy earlier the kind of 
approaches I'd use. With respect to constitutional 
interpretation, that I thought that a variety--justices should 
appropriately look to a variety of sources; that I didn't have 
a grand theory with respect to constitutional interpretation; 
that I'm more pragmatic in my approach to constitutional 
interpretation; that I believe justices, depending on the 
particular provision, depending on the particular case, 
depending on the particular issue, should look to text, to 
history, to traditions, to precedent, certainly, and to the 
principles embodied in that precedent.
    Senator Grassley. The attitudes and views that you have, 
how will they make a difference in how you will reach a 
decision?
    Solicitor General Kagan. Well, I think that approach to 
interpretation, to constitutional interpretation, is the one 
that I would bring to the court and is the one that I would use 
on the court. That's an approach that might be different than 
some other people, same--some people have that approach, some 
people have a different approach, and I think that those 
differences do matter.
    Senator Grassley. OK. I'd like to go to the Second 
Amendment. In Sandidge v. United States, the DC Circuit Court 
of Appeals held that the Second Amendment only protects a 
collective right, not an individual right, upholding DC's 
handgun ban and registration requirements. A version of this 
law was later overturned in Heller.
    As a clerk to Justice Thurgood Marshall, you recommended 
against Supreme Court review. Your entire legal analysis was 
this: ``Petitioner's sole contention is that the District of 
Columbia's firearms statutes violate his constitutional right 
to keep and bear arms. I'm not sympathetic.''
    Why were you ``not sympathetic'' ? Were you not sympathetic 
to that challenge because it was your belief that the Second 
Amendment protects a collective, not an individual, right to 
keep and bear arms?
    Solicitor General Kagan. Senator--Senator Grassley, I 
recommended that the court--that Justice Marshall vote to deny 
certiorari in that case. This was 20 years before Heller. The 
state of the law was very different. No court, not the Supreme 
Court and no appellate court, had held that the Second 
Amendment protected an individual right. Indeed, none of the 
justices on the court at that time voted to take certiorari in 
that case.
    When the Supreme Court took cert in Heller, a Circuit Court 
had held that the Second Amendment protected an individual 
right. There was a conflict in the circuits. It was ripe for 
Supreme Court review. But at this time, no court had held that. 
It had long been thought, starting from the Miller case, that 
the Second Amendment did not protect such a right. And as I 
say, no justice voted to accept certiorari in that case.
    Now, the Heller decision has marked a very fundamental 
movement in the court's jurisprudence with respect to the 
Second Amendment. And as I suggested to Senator Feinstein, 
there is no question that, going forward, Heller is the law, 
that it is entitled to all the precedent that any decision is 
entitled to, and that's true of McDonald as well with respect 
to McDonald's holding that the Second Amendment applies to the 
States, and that's what I would apply.
    Senator Grassley. So then if there had been--the Heller 
case existed, you would have been sympathetic to the challenge, 
and so the words ``I am not sympathetic'' were related to what 
you thought the law was at that time?
    Solicitor General Kagan. It certainly was, Senator 
Grassley. It would have been an entirely different case had 
Heller existed prior to that certiorari petition.
    Senator Grassley. I'd like to continue on the Second 
Amendment. The Supreme Court held, as you know, in Heller, that 
the Second Amendment includes an individual right to possess 
firearms, not collective right conditioned by participation in 
a militia. Yesterday, the Supreme Court ruled in McDonald that 
the individual right recognized in Heller is applied to the 
States through the Doctrine of Incorporation via the Fourteenth 
Amendment.
    This is not a comment on the case, but do you personally 
believe that the Second Amendment includes an individual right 
to possess a firearm?
    Solicitor General Kagan. Well, I do think that Heller is 
the law going forward. I have not had, myself, the occasion to 
delve into the history that the court dealt with in Heller, but 
I have absolutely no reason to think that the court's analysis 
was incorrect in any way. I accept the court's analysis and 
will apply it going forward.
    Senator Grassley. So whether you personally believe that 
Heller or the right to bear arms is a collective or an 
individual right will have no bearing in the future, but you 
don't want to tell us what your own personal belief is? That's 
kind of what I'm asking.
    Solicitor General Kagan. Well, my approach in these 
hearings has been not to grade cases, even if I thought I had 
the wherewithal to grade them, which I'm not sure I do in 
Heller, just because the case is based so much on history, 
which I've never had an occasion to look at.
    I know that the scholarship in this area has suggested that 
there is a very strong view that there is an individual right 
under the Second Amendment, and certainly Justice Scalia's 
opinion, which is a very thorough opinion for the court, is 
entitled to all the weight that any precedent has going 
forward.
    Senator Grassley. The court said in Heller, ``It's always 
been''--and I guess I would put emphasis upon the word 
``always''--``It's always been widely understood that the 
Second Amendment, like the First and Fourth Amendments, 
codified a preexisting right.''
    Do you believe that the Second Amendment codified a 
preexisting right or was it a right created by the 
Constitution?
    Solicitor General Kagan. Senator Grassley, I've--I've never 
really considered that question, as to whether the Second 
Amendment right----
    Senator Grassley. Well, it's basic to our Declaration of 
Independence that says we are endowed by our Creator with 
certain individual rights, among them. You know what it says. 
And we aren't endowed by our government, so the question here 
is, are we endowed by our Constitution with this right or did 
it exist before the Constitution existed?
    Solicitor General Kagan. Well, Senator Grassley, I do think 
that my responsibility would be to apply the Constitution as 
understood and previously applied by the court, and that means 
as understood and interpreted by the court in Heller, and 
that's what I would do. So I think that the fundamental legal 
question would be whether--that a case would present would be--
--
    Senator Grassley. Yes.
    Solicitor General Kagan.--whether the Constitution 
guarantees an individual right to bear arms, and Heller held 
that it did, and that's good precedent going forward.
    Senator Grassley. I know the Declaration of Independence is 
not the law of the land, but it does express the philosophy of 
why we went to war and why our country exists. You understand, 
I hope, that if we're endowed by our government with certain 
rights the government can take them away from us, whereas if we 
possess them ourselves and give them up from time to time to 
the government to exercise in our stead, then the government 
can't take away something that's inherently ours.
    Do you believe that the Second Amendment right to bear arms 
is a fundamental right?
    Solicitor General Kagan. Senator Grassley, I think that 
that's what the court held in McDonald.
    Senator Grassley. OK. And you agree with it?
    Solicitor General Kagan. Good precedent going forward.
    Senator Grassley. In response to questions from Senator 
Leahy and Feinstein, you stated that Heller and McDonald are 
now settled law. Do you agree with the decisions in Heller and 
McDonald as an individual? Not as a Supreme Court justice, but 
do you believe in them as settled law personally?
    Solicitor General Kagan. I do think that those decisions 
are settled law and are entitled to all the weight that any 
precedent of the Supreme Court has.
    Senator Grassley. OK. Will you follow stare decisis and 
uphold Heller and McDonald?
    Solicitor General Kagan. I will follow stare decisis with 
respect to Heller and McDonald, as I would with any case.
    Senator Grassley. When you became dean of Harvard Law 
School, you spearheaded a sweeping overhaul of the academic 
curriculum. One change required students to take an 
international or comparative law course during their first 
year. You said, ``We're in a new world and internationalization 
is an example. There's a recognition that a traditional 
curriculum does not provide some of what lawyers today need to 
know.'' I don't disagree with that statement. You also said 
that the first year of law school is the ``foundation of legal 
education''--those four words are your words--because what 
students learn in that year ``shapes their sense of what the 
law is, its scopes, its limits, and its possibilities.''
    I agree that the first year of law school is critical in 
framing a future lawyer. I also believe that taking an 
international law course is worthwhile. However, I'm troubled 
by your failure to recognize the obvious importance of 
requiring a class in constitutional law.
    I am troubled by your decision to shape a student's 
understanding of U.S. constitutional law, if any, through the 
eyes of foreign legal systems, some of which have little 
respect for the value and principles that we hold so dear in 
this country.
    Surprisingly, constitutional law is not a first-year 
requirement at Harvard. In fact, it isn't even a requirement to 
graduate from the law school. Yet, almost all the top law 
schools across the United States require their students to take 
a constitutional law course to graduate, and it's usually a 
first-year requirement.
    When you said that ``the traditional curriculum does not 
provide some of what lawyers today need to know'', are you 
saying that they don't need to know constitutional law? And 
why, then, is it more important for a law student to take an 
international law course than a course in U.S. constitutional 
law? In other words, which is more important, our Constitution 
or other nations' constitutions and laws?
    Solicitor General Kagan. Our constitutional law is 
absolutely basic. When we were doing the curricula review of 
the law school some years ago, we did think about what should 
be in the first year. One of the questions we considered was 
whether to put some constitutional law in the first year.
    Harvard has long taught constitutional law in the second 
and third year since as far back as I can remember; I know that 
when I was a student it was taught in the second and third 
year. And we had a very serious discussion among our faculty as 
to whether to put constitutional law in the first year, as some 
schools do. Although the two schools I've taught at, both 
Harvard and the University of Chicago, teach constitutional law 
in the second and third year.
    The reason for that is really a sense that students are 
better equipped to understand and to appreciate and to really 
delve into thoroughly all the subtleties and complexities of 
constitutional law issues in the second and third year, and 
that when you put it in the first year it actually short-
changes constitutional law because you can only give students a 
very small amount of what they really should know.
    So both at Harvard at in the University of Chicago, it's 
taught in the second and third year where it can be stretched 
out over a longer stretch of time, where students can delve 
more deeply into it, and also study it more broadly.
    Now, we did decide, when we were doing this curricula 
review--we did decide to put some more constitutional law in 
our first year, and the way we did that was through a course 
that focused on the governmental process: legislation, 
regulation. That course is, in part, an introduction to 
constitutional law because it focuses quite a lot on separation 
of powers issues.
    So, in fact, during that curricula review, although we 
decided, and the constitutional law faculty felt extremely 
strongly about this, the constitutional law primarily be kept 
in the upper years where students can deal with it in a much 
more sophisticated and in-depth way. We did put some 
constitutional law into the first year curriculum, specifically 
separation of powers issues, in a course that we devoted to the 
governmental process.
    Senator Grassley. But in the process of your explanation, 
you're justifying that constitutional law is less of a 
foundation course than international law, are you not?
    Solicitor General Kagan. No. Senator Grassley, 
constitutional law is absolutely basic. The Harvard faculty has 
decided that it's actually best taught and most thoroughly 
taught and most broadly taught when it is done in the second 
and third years. Almost all students take a very wide set of 
constitutional law issues, more than they could do in the first 
year, at Harvard. So I think it's absolutely basic to our 
understanding of who we are as a people, and certainly to the 
knowledge of lawyers.
    Now, I do think that international law is something that 
all law students today should be familiar with. I know that the 
students who graduate from Harvard, they go out, they do 
international litigation, they do international arbitrations, 
they do international business transactions, they do----
    Senator Grassley. I said I didn't disagree with you on the 
importance of international law. Let me go on, please.
    Should judges ever look to foreign law for ``good ideas'' ? 
Should they get inspiration for their decisions from foreign 
law?
    Solicitor General Kagan. Well, Senator Grassley, I guess 
I'm in favor of good ideas coming from wherever you can get 
them, so in that sense I think for a judge to read a Law Review 
article or to read a book about legal issues or to read the 
decision of a State court, even though there's no binding 
effect of that State court, or to read the decision of a 
foreign court, to the extent that you learn about how different 
people might approach and have thought about approaching legal 
issues. But I don't think that foreign law should have 
independent precedential weight in any but a very, very narrow 
set of circumstances.
    So I would draw a distinction between looking wherever you 
can find them for good ideas, for just to expand your knowledge 
of the way in which judges approach legal issues, but--but 
making that very separate from using foreign law as precedent 
or as independent weight. Fundamentally, we have an American 
Constitution. Our Constitution is our own.
    It's the text that we have been handed down from generation 
to generation, it's the precedents that have developed over the 
course of the years. And except with respect to a very limited 
number of issues, that Constitution ought to--the fundamental 
sources of legal support and legal argument for that 
Constitution ought to be American.
    Senator Grassley. Which foreign countries would you suggest 
we look to for good ideas?
    Solicitor General Kagan. Senator Grassley, I guess I would 
say again what I started with, which is, you can look to good 
ideas wherever they come from. You know, there's a brief that 
we filed recently in the Supreme Court, the Solicitor General's 
Office filed it. It regarded a Foreign Sovereign Immunities Act 
case. And in the course of that brief, we noted a number of 
different foreign precedents regarding what other Nations do 
with respect to the immunity of foreign officials. So, you 
know, that's the kind of way in which I think having an 
awareness of what other Nations are doing, you know, might be--
might be useful.
    Senator Grassley. Some judges, and maybe justices, have 
said that our ``influence in the world'' should be a factor 
that a judge consider in constitutional interpretation. So do 
you believe that our ``influence in the world'' should be a 
factor that judges consider in constitutional interpretation?
    Solicitor General Kagan. Senator Grassley, I think judges 
should let the President and the Congress worry about our 
influence on the world. I think that that's not something that 
judges should pay much attention to, should pay any attention 
to.
    Senator Grassley. If confirmed, would you rely on or cite 
international foreign law when you decide cases?
    Solicitor General Kagan. Well, Senator Grassley, I guess I 
think it depends. There are some cases in which the citation of 
foreign law or international law might be appropriate. We spoke 
earlier--I forgot with which of the Senators--about the Hamdi 
opinion. The Hamdi opinion is one in which the question was how 
to interpret the authorization for the use of military force. 
Justice O'Connor, in that case--one of the ways that she 
interpreted that statute was by asking about the law of war and 
what the law of war usually provides, what authorities the law 
of war provides.
    That's a circumstance in which, in order to interpret a 
statute giving the President various wartime powers, the court 
thought it appropriate to look to what the law of war generally 
provided. So there are a number of circumstances, I think. I 
mean, another example would be, suppose the President has the 
power to recognize Ambassadors under Article 2.
    There might be a question, well, who counts as an 
ambassador? One way to understand that question is to look at 
what international law says about who counts as an ambassador, 
and that might or might not be determinative, but it would be, 
you know, possibly something to think about and--and--and 
something to cite.
    Senator Grassley. You wrote in your Oxford thesis, ``Judges 
will have goals. And because this is so, judges will often try 
to mold and steer the law in order to promote certain ethical 
values and achieve certain social ends. Such activity is not 
necessarily wrong or invalid.'' Then in addition, you wrote, 
``And yet, no court should make or justify its decisions solely 
by reference to the demands of social justice. Decisions should 
be based upon legal principle and reason; they should appeal no 
less to our intellectual than to our ethical sense. If a court 
cannot justify a ruling in terms of legal principle, then the 
court should stay its hand: no judge should hand down a 
decision that cannot plausibly be grounded in principles 
referable to an accepted source of law. If, on the other hand, 
a court can justify a ruling in terms of legal principle, then 
that court must make every effort to do so. Judicial decisions 
must be based, above all else, on law and reason.''
    Is it ever appropriate for judges to ``mold and steer'' the 
law?
    Solicitor General Kagan. Senator Grassley, all I can say 
about that paper is that it's--it's dangerous to write papers 
about the law before you've spent a day in law school. So, I 
wrote that paper when--before I spent a day in law school. I 
was trying to think about whether to go to law school and I 
decided to write a paper about law in order to figure out 
whether I was interested in the subject, and I discovered that 
I was interested in the subject and I went to law school, where 
I found out that I might have been interested in the subject 
but I didn't know much about the subject at the time. So, I 
would--I would--I would--I would just ask you to--to recognize 
that I didn't know a whole lot of law then, and there are--I 
didn't know a whole lot of law then.
    [Laughter.]
    Senator Grassley. You know, if I accept your answer it's 
going to spoil a whole 5 minutes I had here.
    [Laughter.]
    Chairman Leahy. Chuck, go ahead and accept it.
    [Laughter.]
    Senator Grassley. Let me enjoy it anyway, will you?
    [Laughter.]
    Senator Grassley. When you said that, ``No court should 
make or justify its decisions solely by reference to the 
demands of social justice'', are you saying that it's 
acceptable for a court to make and/or justify its decision 
based upon ``the demands of social justice'' ? And if so, whose 
``demands of justice'' are you referring to?
    Solicitor General Kagan. Well, the first thing I'm going to 
do is just to ask that what I just said about that paper just 
be repeated for the record. And now I'll say, no, I don't think 
it's--it's--it's appropriate to decide cases based on demands 
of social justice that are external to the law that--that ought 
to be applied to the case, whether that's constitutional law or 
statutory law.
    Senator Grassley. OK. Well, let me leave that then and say 
that you learned a lot by going to law school. I'm not sure I 
say that to very many people.
    [Laughter.]
    Senator Grassley. I'm not a lawyer, you know.
    [Laughter.]
    Senator Grassley. Let me go to one of your judicial heroes, 
Judge Barak. Because you don't have any judicial experience, we 
have no concrete examples of how you decide cases. So we have 
to look elsewhere for clues as to what your judicial philosophy 
might be, including your judicial role models, because we have 
to assume that you agree with their judicial method.
    I am troubled by the fact that you hold up Judge Barak to 
be a judicial role model. You've called him your ``judicial 
hero.'' Judge Barak's judicial philosophy is undeniably 
activist and seen by many as a brazen abuse of power. He's been 
described as having ``created a degree of judicial power 
undreamt of by most aggressive United State Supreme Court 
justices.'' For example, Judge Barak believes that ``a judge 
has a role in the legislative project.'' Will you look to Judge 
Barak's judicial method as a model for deciding cases?
    Solicitor General Kagan. I will not, Senator Grassley. I do 
admire Justice Barak, who is, of course--was for many years the 
chief justice of the State of Israel. He is very often called 
the ``John Marshall of the State of Israel'' because he was 
central in creating an independent judiciary for Israel and in 
ensuring that Israel, a young nation, a nation threatened from 
its very beginning in existential ways, and a nation without a 
written constitution--he was central in ensuring that Israel, 
with all those kinds of liabilities, would become a very strong 
rule of law nation, and that's why I admire Justice Barak, not 
for his particular judicial philosophy, not for any of his 
particular decisions.
    As you know--I don't think it's a secret--I am Jewish. The 
State of Israel has meant a lot to me and my family, and I 
admire Justice Barak for what he has done for the State of 
Israel in ensuring an independent judiciary.
    Senator Grassley. So then I suppose I can assume that you 
would disagree with his statement that ``a judge has a role in 
the legislative project'' ?
    Solicitor General Kagan. I do disagree with that.
    Senator Grassley. OK.
    Solicitor General Kagan. I think that the legislative role 
and the judicial role are fundamentally different and that 
judges owe a great deal of deference to legislatures and should 
not--the legislative way of thinking is entirely different from 
the judicial way of thinking, and judges should think of 
themselves, as I indicated before, only as policing the 
constitutional boundaries, only as ensuring that the 
legislature does not overstep its constitutional role by 
interfering with the States or by violating individual rights, 
but certainly the judges should not be doing what the 
legislature ought to be doing, which is making the fundamental 
policy decisions for this Nation.
    Senator Grassley. One last statement he made, and I assume 
you would disagree with this as well. At Harvard Law, he spoke, 
``There are cases .  .  . in which the judge carries out his 
role properly by ignoring the prevalent social consensus and 
becoming a flag bearer of a new social consensus.'' Would there 
be some time you might find that appropriate for the Supreme 
Court to take a leap like that?
    Ms. Kagan. Well, I'm not exactly sure what he meant by 
that, but if he meant that the court should sort of make 
decisions that the American people--that more appropriately 
should make, the sort of fundamental policy decisions of our 
society, I don't agree with that. As I said, I was talking 
about Justice Barak, and my admiration for Justice Barak comes 
from his important role at the State of Israel in ensuring an 
independent judiciary, and most fundamentally in ensuring that 
Israel is this strong rule of law nation.
    Senator Grassley. Last question. Do you believe that Judge 
Barak endorses a philosophy of judicial restraint or judicial 
activism?
    Ms. Kagan. I think that Justice Barak's philosophy is--is 
so different from anything that we would use or would want to 
use in the United States. I mean, for one thing, Israel is a 
country without any written constitution, a very fundamental 
difference from the United States. So nothing about what I said 
about Justice Barak suggests in any way that I think that his 
ideas about the judge's role in constitutional interpretation 
should be transplanted to the United States.
    Senator Grassley. Thank you.
    Chairman Leahy. And I would just put in the record, Justice 
Antonin Scalia said about, as he said his good friend Judge 
Barak when he gave him the American Association of Jewish 
Lawyer's Pursuit of Justice Board and Justice Scalia expressed 
his profound respect for the man and with Judge Richard Posner, 
conservative luminary, described him by saying if there were a 
Nobel Prize for law, Judge Barak would probably be an early 
recipient.
    But I would also note on the question of looking at foreign 
law, I was thinking the record, another nominee sent to us and 
I think there is a question, there are other legal issues that 
come up in which I think it is legitimate to look to foreign 
law and gave some examples. It is something useful to look to. 
That was Justice Alito and I just note that parenthetically the 
Republican voted for him.
    Senator Grassley. Mr. Chairman, I can only assume that with 
your quick comeback that you have a copy of my notebook.
    Chairman Leahy. You probably wonder why there was a door to 
your shed that was open this morning.
    Senator Sessions. I respect the Chairman's prerogative, but 
I don't think we should be in the situation where the Chairman 
rebuts the questioning of each and every witness on this side. 
I think it kind of alters the dynamics.
    I would just say with regard to Justice Scalia's comments 
about Mr. Barak at that same comment on lightening Kagan, he 
expressed a clear difference on philosophy about the activist 
vision that Justice Barak has for the role of a judge.
    Judge Posner said his, that Judge Barak's activism exceeds 
anything dreamed of by the most activist American judge. I 
think you misquoted and failed to quote completely the nature 
of those two people's comments. There is a raging debate in 
this country and no one denies it over the extent to which 
foreign law can be cited to define a constitution and laws of 
this country.
    I would assume that this nominee from her statements would 
be on the side of Justice Ginsburg who favors that and----
    Chairman Leahy. I will reclaim. We will have plenty of time 
to debate this. As you know, I gave Senator Grassley extra time 
and then I responded with an equal amount of time. We will put 
it into the record. Of course I would yield to anybody who 
wants to put it into the record just exactly what Justice Alito 
said and Judge Posner said and Judge Scalia said.
    Ms. Kagan. Senator Leahy, if I might just make one last 
point. I made these remarks about Justice Barak when he came to 
Harvard Law School to give a speech.
    One of the things that I did as Dean of Law School was I 
gave introductions. I gave introductions to many, many people. 
If any of you had come to Harvard Law School, I would have 
given you a great introduction, too.
    Chairman Leahy. Thank you. And with that, I yield to, you 
see, Senator Grassley, you've got something to look forward to 
yet. Senator Specter, go ahead.
    Senator Specter. Mr. Chairman, thank you to you and Senator 
Sessions on your second or third round. Some of us having had a 
first round.
    Senator Sessions. Your effective role as ranking member.
    Senator Specter. May we start at 30 minutes on my clock 
without Senator Sessions' interjection?
    Madam Solicitor General, I begin with concern for 
separation of powers which is a foundation of the constitution 
and the concerns I have with what the Supreme Court has done 
really in having a consolidation of power. A lot of it going to 
the court, a lot of it going to the executive branch, and it is 
all coming from the traditional power of Congress.
    Before I move into that area, I want to take up a couple of 
points. Senator Sessions has raised the issue about your being 
a progressive, a legal progressive. When he was doing that this 
morning, I was thinking about the Supreme Court's decision 
yesterday, incorporating the Second Amendment into the due 
process clause of the Fourteenth Amendment and remember how 
many objections were raised to the activist liberal Warren Corr 
for doing that.
    I was a prosecutor at the time and the law changed, 
constitutional law changed, Map in Ohio in '61 and Gideon in 
'63 and Rand in '66 and now we have the five conservatives 
being progressives or activists.
    I was intrigued by Senator Hatch's questioning you on the 
citizens in the United case, really an extraordinary case 
characterized by what Justice Stevens had to say. You have 
Congress constructing a detailed record, 100,000 pages, and 
Congress has structured McCain Feingold based upon the standard 
set forth by the Supreme Court in Austin versus Michigan 
Chamber of Commerce.
    Then as Justice Stevens noted, the court pulled the rug out 
from Congress, affirming the constitutionality where it had 
been in effect for 100 years and as Justice Stevens concluded 
showing ``great disrespect for a equal branch.'' I will try to 
make my questions as pointed as I can. To the extent that you 
can answer them briefly, I'd appreciate it. We don't have a 
whole lot of time.
    What is your thinking on disrespect for the Congress when 
we take a Supreme Court decision and we structure a law based 
on those standards with a customary deference due Congress on 
fact finding? Isn't that really what Justice Stevens calls 
disrespect?
    Ms. Kagan. Well, Senator Specter, as you know, I argued 
that case as you know. I filed briefs on behalf of the United 
States in that case. In those briefs, the government made a 
similar kind of argument that great deference was due to 
Congress in the creation of a quite voluminous----
    Senator Specter. Ms. Kagan, I know what you said. You have 
talked about that a great deal. My question is very pointed. 
Wasn't that disrespectful?
    Ms. Kagan. Senator Specter, as I suggested before, when I 
walked up to that podium at Citizens United, I thought we had 
extremely strong arguments. I was acting as an advocate of 
course, but I thought we had various----
    Senator Specter. I'm going to move on. I know all of that. 
The point that I'm trying to find out from you is what 
deference you would show to Congressional fact finding. Let me 
move on.
    Ms. Kagan. May I try again? Because I think that the answer 
to that is great deference to Congressional fact finding.
    Senator Specter. Well, was it disrespectful or not?
    Ms. Kagan. Well, again, I don't want to characterize what 
the Supreme Court did.
    Senator Specter. Well, I want to move on. If you don't want 
to characterize, I want to ask my next question.
    In the U.S. versus Morrison involving the issue of violence 
against women, we had a mountain of evidence assembled as 
Justice Souter pointed out in dissent, and the court rejected 
Congressional findings because of our ``method of reasoning.''
    You haven't crossed the street to the Supreme Court yet, 
but do you think that there is some unique endowment when 
nominees leave this room and walk across the street to have a 
method of reasoning which is superior to Congressional method 
of reasoning so that a court can disregard voluminous records 
because of our method of reasoning?
    Ms. Kagan. Well, to the contrary, Senator Specter. I think 
it's extremely important for judges to realize that there is a 
kind of reasoning and a kind of development of factual material 
more particularly that goes on in Congress.
    Senator Specter. Then you disagree with Chief Justice 
Rehnquist?
    Ms. Kagan. I think that it is very important for the courts 
to defer to Congressional fact finding, understanding that the 
courts have no ability to do fact finding, are not, would not 
legitimately, could not legitimately do fact finding.
    Senator Specter. Well, I know all of that, but what do you 
think of our method of reasoning?
    Ms. Kagan. As I said earlier, Senator Specter, I have 
enormous respect for the legislative process. Part of that 
respect comes from working in the White House and working with 
Congress on a great many pieces of legislation.
    Senator Specter. I'm going to move onto my next question. 
Justice Scalia and Lane attacked the standard of congruence in 
proportionality saying that this court is acting as Congress's 
task master.
    The court is checking on Congressional homework to make 
sure that it has identified sufficient constitutional 
violations to make its remedy constitutional and proportional.
    Now, I picked out three instances, Citizens United where 
Justice Stevens has great disrespect and the attack by 
Rehnquist on our method of reasoning and Scalia talking about 
proportionality and congruence. That brings me to the question 
for you where you have been very explicit in the now famous 
University of Chicago Law Review article about dealing with 
substantive issues.
    We had the standard for determining constitutionality under 
the Commerce Clause from Maryland versus Wirtz, 1968. Justice 
Harlan who established that standard, ``where we find that the 
legislators have a rational basis for finding a chosen 
regulatory scheme necessary to the protection of commerce, our 
investigation is at an end.''
    In the city of Burnie case, 1997, the court pulled out of 
thin air a new test. The test is whether the legislation is 
proportionate and congruent. That is the test which Justice 
Scalia so roundly criticized saying it was flabby, that it was 
an excuse for a judicial legislation.
    Now, would you take Harlan's test as opposed to the 
congruence and proportionality test?
    Ms. Kagan. Senator Specter, Justice Scalia is not the only 
person who has been critical of the test. A number of people 
have noted that the test which is of course a test relating to 
Congress' power to legislate under Section 5 of the Fourteenth 
Amendment that the test has led to some apparently inconsistent 
results in different cases.
    So you have a case like Garrett on the one hand and a case 
like Tennessee versus Lane on the other.
    Senator Specter. I know those cases very well. Five to 
four, O'Connor went the other way, but they both used 
proportionate and congruent.
    What I want to know from you is whether you think that is 
an appropriate standard to replace the rational basis test of 
Wirtz.
    Ms. Kagan. Well, it is the standard of the court right now. 
It is precedent and it is entitled to weight as precedent.
    Now, as you very well know, Senator Specter, there are 
times when the court decides that precedent is unworkable. It 
just, it produces a set of chaotic results.
    Senator Specter. What was unworkable about the Wirtz test 
for a reasonable basis contrasted with congruent and 
proportional which nobody understands?
    Ms. Kagan. No, I wasn't suggesting that the Wirtz test was 
unworkable. I think that the question going forward, and it is 
a question. I'm not stating any conclusion on it, but I think 
that something that Justice Scalia and others are thinking 
about is whether the congruent and proportionality test is 
workable or whether it produces such chaotic results and gives 
you----
    Senator Specter. So you think it is workable?
    Ms. Kagan. Senator Specter, I've not really delved into the 
question the way I would want to as a judge, reading all the 
briefs, listening to the arguments, thinking through the issues 
from both sides. But I do know that the court needs, excuse me, 
that Congress needs very clear guidance in this area.
    It is not fair to Congress to keep on moving the goal 
posts. It is not fair to say oh well, you know, if you do this 
this time it will be OK but if you do that the next time, it 
won't.
    Senator Specter. This is an issue we discussed weeks ago. 
This is an issue I raised in a series of letters which I'll put 
into the record. This is a standard which has been around for a 
long time. You know a lot of law. Senator Grassley established 
that.
    Is it a satisfactory test? Let me move onto another 
question. I don't think I'm making too much progress.
    One of the grave concerns which has risen out of the, out 
of recent confirmation proceedings with Chief Justice Roberts 
and Justice Alito, and I have spoken about this subject 
extensively on the floor citing how emphatic Chief Justice 
Roberts and Justice Alito were on deferring to Congress.
    It is a legislative function. It is not a judicial function 
they said. If you engage in fact finding, if the court does 
that, the court is transgressing into the Congressional area. 
Then you have a case like Citizens United and others and you 
have the declarations by the Chief Justice of Modesty, you have 
adopted that standard. His more emphatic standard was not to 
jolt the system.
    Is there any way you could look at Citizens United other 
than it being a tremendous jolt to the system?
    Ms. Kagan. Senator Specter, again, this is one that as an 
advocate, I have taken a strong view on which is that it was a 
jolt to the system. There was a great deal of alliance 
interests involved and many states had passed pieces of 
legislation in reliance upon Austin that Congress had passed 
legislation after accumulating a voluminous record.
    Senator Specter. Ms. Kagan, you have said that many times 
today about your advocacy in the case. But what I want to know 
is as a perspective Justice, do you consider it a jolt to the 
system?
    Ms. Kagan. Senator Specter, it is a little bit difficult to 
take off the advocate's hat and put on the judge's hat. One of 
the things that I think is important is that I appreciate the 
difference between the two and I have been an advocate with 
respect to Citizens United and that's the way I came to the 
case, it is the way I approached the case, I hope that I did a 
good and effective job in it. I believed what I was saying. But 
it's a different rule and it's a different thought process than 
the role and the thought process that one would use as a judge.
    Senator Specter. Well, what I'm interested in is what you 
use as a judge. But let me move on again.
    There is a lot of concern in the Senate about the value of 
these hearings when we have the kinds of declarations at that 
table, your predecessor and nominees on deference to Congress 
and then there is none given. Not to jolt the system and be 
modest, there is a 180 degree U-turn.
    We wonder what we can do about that. Judicial independence 
is the ball work of this republic. Judicial independence gives 
us the rule of law and it is our most highly prized value.
    While the Congress and the executive branch fumbled on 
segregation for decades, really centuries, the court came along 
and acted on the subject in a progressive way, a very 
progressive way and a very activistic way.
    Nobody challenges it on either side of the aisle today. So 
we may have the highest respect for judicial independence, but 
what do we do when we confirm nominees and they don't follow 
through on very flat commitments?
    This is not just my view. The view of Richard Posner is 
very tough in his book, How Judges Think. This is what he has 
to say about the subject I'm addressing. ``Less than 2 years 
after his confirmation, referring to Chief Justice Roberts, he 
demonstrated by his judicial votes and opinions that he aspires 
to make changes in significant areas of constitutional law. The 
tension between what he said at his confirmation hearing and 
what he is doing as a Justice is a blow to Roberts' reputation 
for candor and further displacement of the already debased 
currency of the testimony of nominees at judicial confirmation 
hearings.''
    Now, we are trying to raise the level of that currency. I 
don't believe you want to make a comment about that, but if you 
do, you are welcome to.
    Ms. Kagan. Senator Specter, I assume the good faith of 
everybody who sits in this chair. There is no reason in my mind 
to think otherwise.
    Senator Specter. Madam Solicitor General, I agree with you 
as to good faith. In raising these issues on a series of 
speeches on the floor, I have explicitly said that I'm not 
challenging the good faith of Chief Justice Roberts or Justice 
Alito. I understand the difference between sitting at that 
witness plot and deciding a case in controversy that comes 
before the court.
    But that still leaves us with a problem. The best answer 
that a group of senators, and we talk about this with some 
frequency, can come up with is to put some sunlight on the 
court.
    As I said in my opening statement, the disinfectant that 
Brandeis talked about, sunlight, the best disinfectant. Well, 
it's not quite a disinfectant. But I think if the public 
understood what was happening, there would be a strong 
temptation to stand by what had been said in these confirmation 
hearings.
    I was really glad to hear you say in response to Senator 
Kohl's questions that you favor television the Supreme Court. I 
think we may be getting closer. I have been at it for more than 
a decade with a whole series of bills.
    Recently the judiciary Committee voted out a bill to 
televise the Supreme Court 13 to 6. We did it a couple of years 
ago 12 to 6. I know it is going to be something the court is 
going to have to come to, perhaps on its own. But the public 
views are increasing.
    A poll which was released by CSPAN just yesterday shows 
that 63 percent of the American people favor televising the 
court. Among the 37 percent who opposed, when they were told 
that people can only be in the Supreme Court chamber for about 
3 minutes, only a couple hundred people, 60 percent of those, 
37 percent thought the court should be televised which brings 
the total to about 85 percent.
    I know we don't run the court by public opinion polls, but 
isn't that fairly weighty as to what the America people would 
like to know?
    We talked about a living constitution and about the 
constitution expressing the changing values of our society, as 
Cardozo said so eloquently in Palco. If the people of this 
country knew that the court was deciding all of the cutting 
edge questions, a woman's right to choose, who lands death 
penalty cases for juveniles, who dies, affirmative action, who 
gets into college, freedom of speech and religion, the American 
people responded on a poll to Citizens United and 85 percent 
thought it was a terrible decision. Ninety 5 percent thought 
that corporations paid contributions to influence legislators.
    One of the great problems of the skepticism of the American 
people about Congress, is it heavy out there. It so open season 
on Congress because of so much of what people think about.
    Well, coming back to the court, wouldn't it be, you have 
already said you're in favor of televising the court. Wouldn't 
televising the court and information as to what the court does 
have an impact on the values which are reflected in the 
American people?
    Ms. Kagan. I do think, Senator Specter, it would be a good 
thing from many perspectives and I would hope to if I am 
fortunate enough to be confirmed to engage with the other 
Supreme Court Justices about that question.
    I think it is always a good thing when people understand 
more about government rather than less and certainly the 
Supreme Court is an important institution and one that the 
American citizenry has every right to know about and 
understand.
    I also think that it would be a good thing for the court 
itself that that greater understanding of the court I think 
would go down to its own advantage. So I think from all 
perspectives, televising would be a good idea.
    Now, I recognize that some people, some justices may have 
views to the contrary and I would want to hear those views and 
to think about those views. But that is sort of my going in 
thought.
    Senator Specter. I will put into the record what the 
justices have had to say. I have questioned almost everybody 
about this subject and I've had the opportunity to question all 
of the people on the court now, but there are a lot of those 
who have been favorably disposed to, or at least have 
acknowledged its inevitability.
    I reminded them that they all appeared on television this 
year on CPSAN and most of them, many of them have appeared over 
the years selling books and being in a variety of situations.
    Ms. Kagan. It means I'd have to get my hair done more 
often, Senator Specter.
    Senator Specter. Let me commend you on that last comment. I 
say that seriously. You have shown a really admirable sense of 
humor. I think that is really important.
    As Senator Schumer said yesterday, we are looking for 
somebody who can moderate the court and a little humor would do 
a lot of good.
    In the case of Richmond Newspapers versus Virginia, the 
Supreme Court said that a public trial belongs not only to the 
accused, but to the public and press as well.
    People now acquire information on court procedures 
truthfully through the print and electronic media. That's a 
1980 decision which upheld a newspaper's rights to be in court 
and observe a trial.
    Isn't that some pretty solid precedent to say, that is a 
matter of law the court ought to have television to have public 
access because that's the way most people get their information 
these days?
    Ms. Kagan. That's very interesting, Senator Specter. I had 
never considered the relevance of that case to the televising 
question. But I think certainly the principles in that case, 
the values in that case are about the public's ability to know 
how our governmental institutions work, which is what is 
critical to this issue as well.
    Senator Specter. Let me move onto another subject which I 
consider to be of great importance. That is the agenda of the 
court, the number of cases the court hears.
    In 1886, the court decided 451 cases. In 1987, a little 
more than 20 years ago, 146 cases. In 2006, 67. In 2007, 76. In 
2008, or 2006, 68, in 2007, 67, 2008 was 75, 2009, finishing 
yesterday of 73. The court leaves a lot of circuits split, 
unresolved.
    The court does not hear a great many critical cases. I 
discussed this with you in our meeting several weeks ago and 
wrote you about it as well. That is the case involving the 
Terror Surveillance Program on the Foreign Intelligence 
Surveillance Act which arguably poses the sharpest conflict 
between the Congress legislating FISA and the President 
asserting Article 2 powers.
    A Federal court in Detroit found the Terror Surveillance 
Program unconstitutional. The 6th Circuit ducked it 2:1 with a 
very strong descent on standing grounds which is traditionally 
a way of avoiding a case and the Supreme Court denied cert.
    Congress has the authority to tell the court what cases to 
take. We have legislated giving you discretionary authority. 
But in many cases illustratively the flag burning case and the 
McCain/Feingold and Federal Labor Standards Act, we directed 
the court to hear the case. So I think it is fair to ask what 
you would have done, not how you will decide that case, but 
whether you would take the case.
    Had you been on the Supreme Court, would you have voted to 
grant cert in the Terror Surveillance Program case?
    Ms. Kagan. Senator Specter, if I might, just to your first 
point which was the point about the court's declining docket. I 
do generally agree with that. I clerked on the court in 1987 
which was pretty much at the high point of what the court was 
doing, about 140 cases a year.
    It is a bit of a mystery why it has declined so 
precipitously. I do agree with you that there do seem to be 
many circuit conflicts and other matters of vital national 
significance.
    Senator Specter. The other issue I raised was much more 
important.
    Ms. Kagan. OK.
    Senator Specter. And there are only 2 minutes left for me 
now.
    Ms. Kagan. Senator Specter, the issue about the TSP and the 
constitutionality of the TSP is I think one of the kinds of 
issues I previously set out three categories where the court 
might grant cert. One which is circuit conflicts, one which is 
the invalidation of an act of Congress and the third is just an 
issue of some vital national importance.
    In a case where the executive branch is determined or is 
alleged, excuse me, is alleged to be violating some 
Congressional command, it is I think one of the kinds of cases 
that the court typically should take.
    Now, there is in this case the complexity that there is a 
potential jurisdictional bar. Of course the court typically 
decided----
    Senator Specter. What jurisdictional bar?
    Ms. Kagan. Well, the question whether somebody has standed. 
So often the court will decline to take a case when there is a 
significant jurisdictional issue because the court will think 
well, if we take this case, we might hold that we don't have 
jurisdiction.
    Senator Specter. They can take the case and say they don't 
have jurisdiction.
    Ms. Kagan. Yes. You're exactly right. I'm just suggesting 
that that is often the reason why a court doesn't take a case. 
If it doesn't know ----
    Senator Specter. I don't care what is often a reason. Here 
we have a specific case, you had a lot of notice, it's in 
concrete. Would you have voted to grant cert?
    Ms. Kagan. Senator Specter, I can just tell you, there was 
this jurisdictional issue. Now, the jurisdictional issue itself 
was an important one. It was an important one because how is a 
person going to know whether----
    Senator Specter. The 6th Circuit decided there was no 
standing after they heard the case. Well, my time is almost up, 
10 seconds. I was 13 seconds over last time.
    There are a couple of other cases, the holocaust survivors, 
the 9/11 survivors victims which I'll come back to when I have 
a green light.
    Chairman Leahy. Thank you very much, Senator Specter. 
Senator Graham?
    Senator Graham. Thank you, Mr. Chairman.
    Chairman Leahy. Then we will just for planning purposes, 
and Senator Graham, we will go to you. Then we will go to 
Senator Schumer and then we'll take a short break. Does that 
work? OK. Senator Graham, it is all yours.
    Senator Graham. Thank you. So far have the hearings been 
what you thought they would be?
    Ms. Kagan. I'm not sure I had, I'm not sure I exactly 
pictured it.
    Senator Graham. Let's try to go back in time and say you 
are watching these hearings and you are critical of the way the 
Senate conducted these hearings. Are we improving or going 
backwards? And are you doing your part?
    Ms. Kagan. I think that you have been exercising your 
constitutional responsibilities extremely well.
    Senator Graham. So it's all those other guys that suck, not 
us, right? It was all those other witnesses that were too 
cagey, right? All right. Fair enough.
    Now, do you know Greg Craig?
    Ms. Kagan. I will say one thing, Senator Graham, which is 
it just feels a lot different from here than it felt from back 
there.
    Senator Graham. I bet it does. It feels a lot different 
when you're the nominee too, doesn't it? If it didn't, I'd 
really be worried about you. You know Greg Craig?
    Ms. Kagan. I do.
    Senator Graham. He was previously the counsel to the 
President.
    Senator Graham. Do you know him well? Pretty well?
    Ms. Kagan. You know, OK.
    Senator Graham. I'm not trying to trick you. I don't have 
anything on Greg. He said on May 16th that you are a largely 
progressive in the mold of Obama himself. Do you agree with 
that?
    Ms. Kagan. Senator Graham, you know, in terms of my 
political views, I have been a Democrat all my life. I have 
worked for two Democratic Presidents and that is what my 
political views are.
    Senator Graham. And would you consider your political views 
progressive?
    Ms. Kagan. My political views are generally progressive, 
generally----
    Senator Graham. Compared to mine, for sure, right? OK, 
that's fine. There is no harm in that and that makes the 
hearings a little more interesting. I would be shocked if 
President Obama did not pick someone that shared his general 
view of the law and life and so elections have consequences. Do 
you agree with that? Elections do have consequences.
    Ms. Kagan. It would be hard to disagree that elections have 
consequences.
    Senator Graham. Right. And one of the consequences is a 
President gets to fill a nomination for the Supreme Court. 
That's a power that the President has, right?
    Ms. Kagan. Yes, sir.
    Senator Graham. So it would be OK from your point of view 
if a conservative president picks someone in the mold of a 
conservative person?
    Ms. Kagan. I would expect that.
    Senator Graham. There we go. Good. We'll remember that. OK. 
We may have a chance to bring those words back. Do you know 
Miguel Estrada?
    Ms. Kagan. I do.
    Senator Graham. How do you know him?
    Ms. Kagan. Miguel and I were classmates at Harvard Law 
School, but we were more than classmates at Harvard Law School. 
Harvard Law School has a way of, has required seating in the 
first year. Miguel and I were----
    Senator Graham. Trust me, I don't know because I could have 
never gotten there, but I trust you.
    Ms. Kagan. Miguel and I were required to sit next to each 
other in every single class in the first year. I can tell you 
Miguel takes extraordinary notes. So it's great. Every time you 
missed something in class, you could just kind of look over 
and, but that's how I know Miguel. We have been good friends 
ever since.
    Senator Graham. What is your general opinion of his legal 
abilities and his character?
    Ms. Kagan. I think he is a great lawyer and a great human 
being.
    Senator Graham. He wrote a letter on your behalf. Have you 
had a chance to read it?
    Ms. Kagan. I did.
    Senator Graham. Can I read part of it? I write in support 
of Elena Kagan's confirmation as Associate Justice of the 
Supreme Court of the United States. I have known Elena for 27 
years. We met as first year law students at Harvard where we 
were assigned seats next to each other. So you're consistent, 
for all our classes.
    We were later colleagues as editors of the law review and 
as law clerks to different Supreme Court Justices and we have 
been friends since.
    Elena possesses a formidable intellect, an exemplary 
temperament and a rare ability to disagree with others without 
being disagreeable. She is calm under fire and mature and 
deliberate in her judgments.
    Elena would also bring to the court a wealth of experience 
at the highest levels of our government and of academics, 
including teaching at the University of Chicago serving as a 
Dean of the Harvard Law School and experience at the White 
House as current Solicitor General of the United States.
    If such a person who has demonstrated great intellect, high 
accomplishments and an upright life is not easily confirmable, 
I fear we will have reached a point where no capable person 
will readily accept a nomination for judicial service.
    What do you think about those comments?
    Ms. Kagan. Senator Graham, I think those comments reflect 
what an extraordinary human being Miguel Estrada is. I was 
deeply touched when I read that letter, deeply grateful to him 
of course and all the nice things that he said about me I would 
say back about him double.
    Senator Graham. Well, I am going to give you that chance 
because Miguel Estrada, as most people know, maybe not 
everyone, was nominated by President Bush to the court and he 
never made it.
    I think it is one of the great tragedies for the country 
that he was never able to sit on an appellate court, but that's 
the past. I do think it reflects well of him that he would say 
such things about you. Quite frankly, I think it reflects well 
of you that you would say such things about him.
    In your opinion, Ms. Kagan, is he qualified to sit as an 
appellate judge?
    Ms. Kagan. He is qualified to sit an as appellate judge, he 
is qualified to sit as a Supreme Court Justice.
    Senator Graham. Your stock really went up with me. So what 
I would like you to do since you might 1 day be on the court 
yourself is to, if you don't mind at my request, write a letter 
to me, short or as long as you'd like it about Miguel Estrada. 
Would you be willing to do that in the next couple of days?
    Ms. Kagan. I would be pleased to do that, Senator Graham.
    Senator Graham. Thank you. Now, let's talk about the war. 
As Solicitor General of the United States, you represent the 
United States government before the Supreme Court, right?
    Ms. Kagan. I do.
    Senator Graham. OK. Let's shift gears here. And you had to 
get confirmed before this body for that job. Do you remember 
that confirmation process?
    Ms. Kagan. I do.
    Senator Graham. Do you remember me?
    Ms. Kagan. I do remember you.
    Senator Graham. OK. Good. Do you remember when I asked you, 
are we at war, and you said?
    Ms. Kagan. Yes.
    Senator Graham. OK. Now, that is a bold statement to make 
but an accurate statement. Who are we at war with and what does 
that mean in terms of this Nation's legal policy?
    Ms. Kagan. Well, we are at war with Al Qaeda and the 
Taliban and under the AUMF, the President has a wide range of 
authorities with respect to those groups.
    Senator Graham. Now, under domestic criminal law as we know 
it today, is there any provisions in our domestic criminal law 
that would allow you to hold someone indefinitely without 
trial?
    Ms. Kagan. Not that I know of, Senator Graham.
    Senator Graham. And quite frankly there shouldn't be, 
should there?
    Ms. Kagan. No, sir.
    Senator Graham. And under the law----
    Ms. Kagan. I feel as though we are doing this again.
    Senator Graham. We are.
    Ms. Kagan. We are sort of doing an instant replay.
    Senator Graham. Yes, we are going to do this again and I 
hope we get the same answers. That will help you a lot if we 
do. If we don't, we'll have a problem.
    Under the law of armed conflict, is it permissible to hold 
an enemy combatant as long as the holding force deems them to 
be dangerous?
    Ms. Kagan. Under the traditional law of war, it is 
permissible to hold an enemy combatant until the end of 
hostilities. The idea behind that is that the enemy combatant 
not be enabled to return to the battlefield.
    Senator Graham. That's a good summary. The problem with 
this war is there will never be a definable end to hostilities, 
will there?
    Ms. Kagan. That is exactly the problem, Senator Graham. 
Hamdi very briefly discussed this problem, the court in Hamdi 
suggesting that perhaps if this war was so different from the 
traditional law of war that there might need to be alternative 
procedures to put in place.
    For example, one could imagine a system in which because of 
the duration of this war, it was necessary to ensure that enemy 
combatants continue in dangerousness. That is a question that I 
think has not been answered by the court.
    Senator Graham. Do you believe it would serve this country 
well if the Congress tried to work with the executive branch to 
provide answers to that question and others?
    Ms. Kagan. Senator Graham, let me take the question and 
make it into a legal question because I think it is directly 
relevant under the Youngstown analysis whether Congress and the 
Presidents do work together.
    Senator Graham. When the two are together, the courts find 
more power.
    Ms. Kagan. That's correct.
    Senator Graham. Now, you are still Solicitor General of the 
United States. From that point of view, would you urge this 
Congress to work with the executive branch to create statutes 
to help the courts better answer these questions?
    Ms. Kagan. Senator Graham, I think I don't want to talk as 
Solicitor General as to legal policy here.
    Senator Graham. OK.
    Ms. Kagan. But I will say as to the legal matter that it 
makes a difference. Whether Congress and the President work 
together, that courts should take note of that, that courts 
should, when that occurs, the action is at, ought to be given 
the most deference and that there is a reason for that. It is 
because the courts are basically saying Congress and the 
President have come together, Congress and the President have 
agreed upon a policy jointly and there should be deference in 
those circumstances.
    Senator Graham. Are you familiar with Judge Lamberth and 
Judge Hogan?
    Ms. Kagan. I don't know either of them. I know who they 
are.
    Senator Graham. Fair enough. They are DC judges, Federal 
District Court judges who are hearing a habius of bills from 
GTMO detainees. I will provide you some of the comments they 
made.
    It is unfortunate, according to Judge Hogan, it is 
unfortunate in my view that the legislative branch of the 
government and the executive branch have not moved more 
strongly to provide uniform, clear rules and laws for handling 
these cases.
    I have got other quotes that I will provide you. What I'm 
trying to do here is lay the foundation for the idea that our 
laws that exist today do not recognize the dilemma the country 
faces. The administration has determined that 48 people held at 
GTMO are too dangerous to let go but are not going to be 
subject to normal criminal proceedings.
    In other words, we believe the evidence suggests they are 
members of Al Qaeda, they have all gone before a habius judge 
and the judge agreed, but they are never going to be tried in a 
traditional fashion.
    Is the administration's decision in your opinion consistent 
with the power under the law of war to do that?
    Ms. Kagan. Well, as Solicitor General, Senator Graham, I 
have argued the position that this is fully legal.
    Senator Graham. And I think very well, very well. You have 
argued for the proposition that this President and all future 
Presidents has the ability to detain an enemy combatant with 
sufficient process if the executive branch believes that they 
are dangerous and not require them to go through a normal 
criminal trial.
    What we have to do is find out what that process would be, 
this hybrid system. You argued against expanding habius rights 
to detainees held in Afghanistan, is that correct?
    Ms. Kagan. I did, Senator Graham.
    Senator Graham. As a matter of fact, you won.
    Ms. Kagan. In the--Circuit.
    Senator Graham. And you probably won't be able to hear that 
case if it comes to the Supreme Court, will you?
    Ms. Kagan. Well, that's correct.
    Senator Graham. Well, that's good because we can talk 
openly about it.
    Ms. Kagan. If I could just say, in general the Solicitor 
General only signs her name to briefs in the Supreme Court, 
authorizes appeal but does not sign appellate briefs.
    I determined that I should be the counsel of record on that 
brief because I thought that the United States' interests were 
so strong in that case based on what the Department of Defense 
told our office.
    Senator Graham. Right. I want every conservative legal 
scholar and commentator to know that you did an excellent job 
in my view of representing the United States when it came to 
that case.
    You said previously that the first person you have to 
convince when you submit a brief or take a case on is yourself, 
is that correct?
    Ms. Kagan. Well, I said that in reference to the cases that 
I argued specifically. Of course when I write briefs, I write 
from, or when I sign briefs, when I am counsel of record on 
briefs, I am taking the position of the United States, that I 
am representing the position that I believe and that our office 
believes is most consistent with the long-term interests of the 
United States government.
    Senator Graham. Have you convinced yourself as well as 
representing the United States government it would be a 
disaster for the war effort if Federal judges could intervene 
and require the release of people in detention in Afghanistan 
under military control?
    Ms. Kagan. Senator Graham, I chose to put my name on that 
brief, as I said, which is a very, very rare thing in the 
appellate courts because I believe that they were very 
significant----
    Senator Graham. Well, let me read a quote. ``The Federal 
court should be come the vehicle by which the executive is 
forced to choose between two intolerable options, submitting to 
intrusive and harmful discovery of releasing dangerous 
detainee.'' Do you stand by that statement?
    Ms. Kagan. Senator Graham, can I ask whether that statement 
comes from that brief?
    Senator Graham. Yes, it does.
    Ms. Kagan. That statement is my best understanding of the 
very significant interests of the United States government in 
that case which we tried forcefully to present to the court. As 
you said before, the DC circuit, a very mixed panel of the DC 
circuit upheld our argument.
    Senator Graham. You also said the courts of the United 
States have never entertained habius lawsuits filed by enemy 
forces detained in war zones. If courts are ever to take that 
radical step, they should do so only with the explicit blessing 
by statute. Do you stand by that?
    Ms. Kagan. Anything that is in that brief, I stand by as 
the appropriate position of the United States government.
    Senator Graham. Fair enough. The brief needs to be read by 
your supporters and your critics because some of your 
supporters are going to be on--and some of your critics may 
like what is in there.
    I am here to say from my point of view that this area of 
your legal life, you represented the United States well and I 
hope that Congress will rise to the occasion working with the 
executive to provide some clarity so that we will be able to 
find a way to fight this war within our value system and 
recognize the difference between fighting war and fighting 
crime.
    The battlefield you told me during our previous discussions 
that the battlefield in this war is the entire world, that if 
someone were caught in the Philippines who was a financier of 
Al Qaeda and they were captured in the Philippines, they would 
be subject to enemy combatant determination because the whole 
world is the battlefield. Do you still agree with that?
    Ms. Kagan. Senator, I was speaking there as a legal policy 
matter representing the position of the Obama administration. 
That's obviously a very different role as the advocate role 
that I play is also a different role.
    Senator Graham. Let's just stop there. When you were an 
advocate, you had no problem advocating that position.
    Ms. Kagan. There are certain parts of that that I think 
that we have not addressed in the United States government. So 
the United States government has argued that the battlefield 
extends beyond Iraq and Afghanistan.
    Senator Graham. Attorney General Holder said that the 
battlefield is the hearts, the minds and wherever Al Qaeda may 
reside. Do you believe that is a consistent statement with 
Obama policy?
    Ms. Kagan. Senator Graham, when I was here before, you 
asked me if I agreed with the Attorney General and I said that 
it would be bad to disagree with the Attorney General given my 
position. I am still the Solicitor General and I still agree 
with the Attorney General.
    Senator Graham. But you strike me as the kind of person 
that if you thought he was wrong you'd say so even though it 
may cost you your job. Am I right in assuming that?
    Ms. Kagan. I certainly would tell him if I thought he was 
wrong.
    Senator Graham. And I think you would tell me if you 
thought it was wrong, so I'm going to assume you thought he was 
right because that's the kind of person you are. I quite 
frankly think he's right.
    Now, as we move forward and deal with law of war issues, 
Christmas day bomber. Where are you at on Christmas Day?
    Ms. Kagan. Senator Graham, that is an undecided legal 
issue. Well, I suppose I should ask exactly what you mean by 
that. I'm assuming that the question you mean is whether a 
person who is apprehended in the United States is----
    Senator Graham. No, I just asked you where you were at on 
Christmas.
    Ms. Kagan. You know, like all Jews, I was probably at a 
Chinese restaurant.
    Senator Graham. Great answer. Great answer.
    Chairman Leahy. I could almost see that one coming.
    Senator Graham. Me, too. So you were celebrating----
    Chairman Leahy. Senator Schumer explained this to me 
earlier.
    Senator Graham. Yes, he did.
    Senator Schumer. No other restaurants are open.
    Senator Graham. Right. You were with your family on 
Christmas Day at a Chinese restaurant?
    Ms. Kagan. Yes, sir.
    Senator Graham. OK. That's great. That's what Hanukkah and 
Christmas is all about.
    Now, what happened in Detroit on Christmas Day? Can you 
recall? What was so unnerving about that day?
    Ms. Kagan. Well, that there was a failed but only just 
failed terrorist incident.
    Senator Graham. We were lucky as a nation that a bunch of 
people didn't get killed on Christmas day or in the middle of 
Hanukkah or whatever holiday it may be. We are lucky that bomb 
didn't go off.
    Ms. Kagan. Senator Graham, it seemed a close thing. I don't 
know more than I read in the newspapers about that incident.
    Senator Graham. I understand.
    Ms. Kagan. I was not involved in any of the discussions 
about what to do on that day.
    Senator Graham. The Times Square incident, do you recall 
that, right?
    Ms. Kagan. Yes, sir.
    Senator Graham. We were lucky that van didn't explode.
    Ms. Kagan. Every time one of these things happens, it is 
extremely unnerving. It makes us aware of the need to take 
efforts to make sure that such a thing never happens.
    Senator Graham. Tell me about Miranda warnings. Do we need 
to read soldiers, do soldiers need to read people their rights 
captured in the battlefield in Afghanistan?
    Ms. Kagan. Senator, the way Miranda warnings would come up 
is of course only with respect to the admissibility of evidence 
in a criminal court. So to the extent that we are talking about 
a battlefield capture and not a criminal trial, an Article 3 
criminal trial, the Miranda issue would never come up.
    Senator Graham. So you agree with me that in war you don't 
have to read the enemy their rights because you are not talking 
about fighting crime, you are talking about fighting a war, is 
that correct?
    Ms. Kagan. Well, the Miranda issue is only applicable in 
Article 3 courts as a matter of criminal law.
    Senator Graham. OK. If you catch a person in Afghanistan--
--
    Ms. Kagan. I should correct that. I should correct that 
because I think that the question of whether Miranda is 
applicable in military commissions has not been decided.
    Senator Graham. Right. Well, you have Article 31 rights 
which are the same thing, but that is yet to be decided. But 
under general rule of war, you don't read the enemy the Article 
31 rights when you're in a fire fight.
    For these hearings to be meaningful and instructive, I 
think it is good for us to have an open discussion about when 
we are fighting a war and when we are fighting a crime, what is 
the consequences of criminalizing this war.
    My fear is that if we criminalize this war, we're going to 
get Americans killed for no higher purpose and that the idea 
that you would take someone off an airplane or in Times Square 
and start reading them their Miranda rights within a few hours 
is criminalizing the war because the reason we are capturing 
these people initially is to find out what they know about the 
enemy.
    Do you have any concerns that reading Miranda rights to 
suspected terrorists caught in the United States would impede 
our ability to collect intelligence?
    Ms. Kagan. Senator Graham, I have never dealt with that 
question as Solicitor General.
    Senator Graham. Just as Elena Kagan.
    Ms. Kagan. Senator Graham, I feel as though----
    Senator Graham. Harvard Law School dean.
    Ms. Kagan. I'm a part of this administration and I think 
that, you know, I should let the Attorney General----
    Senator Graham. Well, let me tell you the administration 
generally speaking has been pretty good to work with on this 
issue. We have had discussions about having exceptions to 
Mirandas so that we don't lose intelligence gathering 
opportunities and not criminalize the war.
    What does the public safety exception mean when it comes to 
Miranda? What's your understanding?
    Ms. Kagan. The public safety exception which was, comes 
from the Quarrels case, it is right now I think a limited 
exception. It enables----
    Senator Graham. Very limited.
    Ms. Kagan. That's right.
    Senator Graham. Very undefined.
    Ms. Kagan. It enables the police essentially to be able to 
question to find the gun, you know, to find something that 
might pose an eminent risk of public safety.
    Senator Graham. Now, let's stop there. So the public safety 
exception is about protecting the law enforcement officers and 
maybe securing the crime scene.
    What I'm trying to illustrate is that the public safety 
exception I'm looking for would allow the intelligence 
community to find out about where this guy came from. Where did 
you train? Is there another attack coming?
    Right now the law is very, do you think it would be in the 
United States' best interest to have clear guidance to the 
intelligence community, give them the tools and the flexibility 
when they capture one of these guys whether it be in Times 
Square or Detroit to find out without having to do anything 
else at the moment what is the next attack? What do you know 
about future attacks? Where did you train?
    Would that make us a more secure nation if our intelligence 
and law enforcement community had those tools? In your opinion.
    Ms. Kagan. Well, of course it's a question that might come 
before the court in some guise as to whether the public safety 
exception should apply.
    Senator Graham. I'm just talking about being an American 
now. Forget about the courts. As an American, a patriotic 
American, liberal or conservative, don't you believe that we 
would all be better off if we had the opportunity within our 
values, humanely without torture, to hold a terror suspect and 
gather intelligence before we did anything else because another 
attack may be coming?
    Not that a gun is in the next room, but somebody else may 
be coming our way. Don't you think as an average, everyday 
citizen that would make us a safer nation?
    Ms. Kagan. I suppose on this one, Senator Graham, that I'm 
reluctant to say how I would think about the question as an 
average, everyday citizen because I might have to think about 
the question as a judge and that would be a different way of 
thinking about the question.
    Senator Graham. OK. Let's talk about what a judge may think 
about here. If we applied domestic criminal law to the war on 
terror without any hybrid mix, would that be a good thing?
    I mean, if we took the war on terror and just made it a 
crime, would we be limiting our ability to defend ourselves?
    Ms. Kagan. Well, as we discussed before, Senator Graham, I 
mean, the administration of which I'm a part----
    Senator Graham. Here is what I don't understand is because 
you said to me previously that you understand why this 
administration are holding 48 people without trial because they 
are enemy combatants and that makes sense to you.
    Ms. Kagan. Yes.
    Senator Graham. What I'm trying to extrapolate is if we 
took other parts of criminal law and applied it to the war on 
terror, would that create a problem for this country?
    Ms. Kagan. I guess I feel----
    Senator Graham. Like Miranda warnings.
    Ms. Kagan. Yes. I mean, the question of intention of enemy 
combatants is one that I have dealt with as Solicitor General, 
it is one that I have argued as Solicitor General. This is a 
question that I have not dealt with and I am hesitant to make 
any comments in a personal view or in a policy view given that 
these questions I think are likely to come before the court.
    The question of the good faith exception to Miranda, how it 
applies to terrorism cases is I think quite likely to get to 
the court.
    Senator Graham. Is it fair to say that the letter you wrote 
to me about the Detainee Treatment Act Amendment, I think you 
call the Graham/Kyl proposal that it would lead to a 
dictatorship or something?
    Ms. Kagan. No, I didn't say that.
    Senator Graham. What did you say?
    Ms. Kagan. I----
    Senator Graham. I'm not easily offended. You could say 
that. It would probably help me in South Carolina. It wouldn't 
hurt that the Harvard Law School dean was mad at Lindsey.
    But you did, you wrote a letter that was pretty 
challenging. What did you say in the letter?
    Ms. Kagan. It was a challenging letter. I think I said that 
we hold dictatorships to high standards and we should hold 
ourselves to even higher ones.
    But I did criticize the initial Graham amendment for----
    Senator Graham. And that is absolutely OK. It is absolutely 
OK. You did criticize the original Graham amendment and I 
didn't take it personally.
    Ms. Kagan. Well, I'm glad to hear that.
    Senator Graham. But you did say that's what dictatorships 
do and I thought that was a little over the top, but the 
difference between the Graham/Kyl amendment and the amendment 
that passed by 84 votes wasn't a whole, what's the difference 
between what I proposed and what passed?
    Ms. Kagan. Right. Well, I think one difference was that 
military commission adjudications now receive DC circuit 
review. In fact, the letter we wrote was about that, was saying 
that military commission adjudication ----
    Senator Graham. Now, did you assume that we precluded final 
verdicts in military commissions from Article 3 review?
    Ms. Kagan. Well, my initial understanding of the initial 
Graham amendment----
    Senator Graham. We didn't, but you could have had that 
understanding, but I can assure you that wasn't my goal.
    The point I'm trying to make here is that the Military 
Commission Act of 2009 has been a work in progress for many, 
many years. We are trying to as a nation get this right.
    As Solicitor General, do you have confidence in our 
military commissions that we have set up? Do you find that they 
are a fair form to try people in?
    Ms. Kagan. Senator Graham, I really haven't had any 
exposure to the military commissions as yet. Of course there 
has been no military commission proceedings.
    Senator Graham. Have you had exposure to military lawyers?
    Ms. Kagan. I think that they are absolutely top notch.
    Senator Graham. What if I told you that the same lawyers 
who will be doing the commissions are also the same lawyers, 
judges and jurors that would try our own troops. Would that 
make you feel better?
    Ms. Kagan. Well, I do think that the military lawyers with 
whom I have had the pleasure and honor to work as Solicitor 
General are stunningly good.
    Senator Graham. So is it fair to say that Elena Kagan, 
whatever day it is in 2010 doesn't believe that military 
commissions are a miscarriage of justice or unconstitutional? 
Strike unconstitutional.
    Do you believe that this country submitting a suspected 
terrorist to military commission trial is within our value 
system?
    Ms. Kagan. Senator Graham, on the part of an administration 
that clearly has stated that some people----
    Senator Graham. Do you personally feel comfortable with 
that?
    Ms. Kagan. I do. I wouldn't be in this administration if I 
didn't.
    Senator Graham. Thank you. Thank you.
    Chairman Leahy. Thank you, Senator Graham. Before I go to 
Senator Schumer, I should know when Senator Schumer is finished 
his questions, we will have about a 10-minute break.
    Senator Schumer.
    Senator Schumer. Thank you, Mr. Chairman and thank you, 
Solicitor General. I think you're doing just great. I think the 
hearings are showing the American people that you are the kind 
of person many of us believe you to be, thoughtful and 
practical and moderate. You try to understand and appreciate 
many differing points of view but you have fidelity to law 
above all and I think they are learning too that you are a very 
nice person with a pretty good sense of humor.
    You know, there was a recent study I read that showed when 
he sits on the Supreme Court bench hearing cases, Justice 
Scalia gets the most laughs.
    Ms. Kagan. He is a funny man.
    Senator Schumer. Yes. If you get there, and I believe you 
will, you are going to give him a run for his money.
    Anyway, I'd like to ask you a few questions first about 
modesty, something that we've talked about in this and other 
nominations.
    That is a very important quality to me and I was really 
pleased to see you speak about modesty in your opening 
statement. I thought you not only spoke eloquently about the 
importance of modesty, but you sort of embodied modesty in your 
whole demeanor and way and have done that today. So I think 
people don't believe it is just talk.
    You said you believed it was critical for judges to be 
deferential to the decisions of the people and their elected 
representatives. I agree. While I think just about anyone can 
and everyone does pay lip service to the notion of judicial 
modesty, it can mean different things to different people.
    So just tell us in general a little bit about what you mean 
by the idea of judicial modesty.
    Ms. Kagan. Senator Schumer, I think there are three 
components to it. The first is the one that you mentioned which 
is deference to the political branches. To Congress, to the 
President, to the states. An understanding that they are 
looking after the people's business, that they are acting in 
good faith, that they too take constitutional oaths, that they 
ought to be the policymakers for the Nation and that the 
courts, the courts have an important role to play, but it is a 
limited role. It is essentially sort of policing the boundaries 
and making sure that Congress doesn't overstep its role, 
doesn't violate individual rights or interfere with other parts 
of the governmental system, but that even in doing that, even 
in policing those boundaries the courts should look at Congress 
and the President as, it should give them a lot of deference 
and should be hesitant and reluctant to interfere and should 
make sure that they understand what Congress is doing and why 
Congress is doing it before they do.
    So to sort of give Congress a good deal of the benefit of 
the doubt to look at those Congressional findings that Senator 
Specter was asking me about, to really explore what Congress 
thought it was doing. There will be some times, there will be 
some times where the courts will have to say no, Congress has 
overstepped. Congress has violated individual rights or 
Congress has somehow interfered with state prerogatives 
perhaps.
    But those times, the court ought to feel hesitant about 
doing that and ought to make sure that it has gotten it right. 
So that's the first thing.
    The second thing is respect for precedent. I think 
precedent is extraordinarily important in our law. It is 
important because it leads to predictability and stability in 
the law, but it is important also precedent itself is a kind of 
measure of humility.
    It is a way of current justices saying even if I think 
these past judges got it wrong, I'm going to be hesitant about 
saying that. I'm going to doubt myself. I'm going to think that 
this law that has built up over the years by prior judges has 
real wisdom to it. Even if I can't quite see that wisdom right 
now, I'm going to be hesitant about saying that it doesn't 
exist. So it is a doctrine really of humility, of judicial 
humility.
    It is also a doctrine of constraint. It constrains judges 
and makes sure that judges warrant doing, importing anything 
inappropriate into the decisionmaking process. So the judges 
aren't taking their personal views and their personal 
commitments and their political commitments and using those in 
the decisionmaking process.
    If your precedent binds judges, and that is a very good 
thing for the legal system for that reason, too.
    I suppose the third part of judicial modesty is a set of 
rules really about deciding cases. It is making sure that you 
have a case before you that you're not deciding an abstract 
legal issue.
    It is taking one case at a time, not really thinking down 
the road how this, if I decide this case this way, maybe 
another case can be decided that way. Really just focusing on 
the case before you and the question before you.
    It is avoiding constitutional questions if you can in favor 
of statutory questions. It is generally making sure that you 
are deciding questions on the narrowest possible grounds rather 
than on broader ones. So all of those techniques of judging, if 
you will, I mean, some people have called these passive virtues 
I think are very important.
    Senator Schumer. Well, I think that is a great answer. It 
is almost a textbook like answer and I hope the Supreme Court 
continues to follow it. Or follows it.
    Let me just ask you this. Would your own personal views 
ever play a part in interpreting the statute given your 
definition of modesty?
    Ms. Kagan. It would not, Senator Schumer. I mean, with 
respect to a statute, the only question is Congress' intent and 
that's what the court should be looking at, what Congress 
wanted the statute to apply to, how Congress wanted the statute 
to apply.
    Now, sometimes that won't be altogether clear. Sometimes 
Congress leaves ambiguities or uncertainties of various kinds 
and it is the court's job to try to clarify those ambiguities 
and to try to remove those uncertainties, but it should all be 
done with a question of what is Congress intending here?
    To the extent that the text suggests that, all well and 
good. To the extent it doesn't, I think a judge should look to 
other sources, should look to the structure of the statute, 
should look to the history of the statute in order to determine 
Congress' will.
    Senator Schumer. Right. And just one final question. Let's 
just posit for the moment the term activism, judicial activism 
is bandied around a lot. But it is sort of the opposite of 
modesty as you defined it and I think as most define it.
    Just let me, it is my view that activism so to speak which 
means beyond, going beyond the bounds of modesty that you have 
outlined can come from the right or from the left. It can 
probably even come from the middle in certain ways. Do you 
agree with that?
    Ms. Kagan. I think activism does not have a party.
    Senator Schumer. Or a philosophy.
    Ms. Kagan. Or a philosophy.
    Senator Schumer. There can be liberal activists and 
conservative activists.
    Ms. Kagan. I think that that's right.
    Senator Schumer. OK. All right. Let's go on now to 
pragmatism, a second quality that you exhibit and talked about. 
To me at least I find it refreshing about your nomination is 
that you don't come straight from the judicial monastery, that 
you have real hands on practical experience because I think 
some of the times certainly speaking for me and I think most 
people think sometimes judges impose decisions from on high 
without any sort of thinking or not enough thinking as to the 
practical effects on either a business or a person or a 
government or whatever.
    To me, the practical experience you had is almost the best 
one can have in terms of being a good judge because you have 
had to deal with the law in a very practical way. What I mean 
there is your tenure as Dean of Harvard Law School. You managed 
a budget of over 160 million dollars, dealt with hundreds of 
employees, had a very fractious legal faculty who probably 
spanned the kind of judicial philosophies that you'll find 
should you get to the Supreme Court.
    Your job as Dean, I'm not saying as Justice, was to sort of 
bring them together and create a better tone and better 
atmosphere which you did, which most observers found, you know, 
they were in awe almost of what you did there given how bad it 
was before and how smooth it was afterwards.
    Just tell us a little bit about the challenges that you had 
and what you learned from them as Dean. Practical stuff.
    Ms. Kagan. Well, mostly I learned, Senator Schumer, that 
you can never do too much listening to people because it turns 
out you learn a lot by listening. You said that the faculty was 
fractious and you kind of portrayed them in a negative light, 
but in truth I loved my faculty and I thought that my faculty 
was sort of endlessly generous to me and good spirited in terms 
of the things that they did for the school.
    I think that that was so in part because people respected 
that I listened to people, that I was willing to change my mind 
if they could convince me that I was wrong, and sometimes I was 
wrong. I got a lot of good ideas from my faculty along the way.
    So I suppose the best thing I learned by being Dean of that 
school was just the value of listening hard and realizing that 
you don't start by knowing everything.
    Senator Schumer. And how were you so successful in bringing 
people of different views who were pretty fractious when you 
walked in? Because I understand it was hard to get faculty 
appointments because one part of the faculty would always 
object to the other.
    How did you get to bring them together into a body that was 
at least from all reports, much more cohesive and happier as a 
result of your tenure there?
    Ms. Kagan. Well, Senator Schumer, I think everybody did it. 
I don't think I did it. I think everybody did it. I think all I 
did was try to encourage people to work together and I think 
that once that started happening, people just understood that 
working together brought great benefits to the institution. It 
was a little bit of a kind of virtuous circle, you know, 
because once it started, it just kept on going. The ball kept 
on rolling because people saw some of the good things that it 
brought.
    Senator Schumer. This relates to something I have given a 
lot of thought about and still haven't come to any firm 
conclusions.
    What is the role of pragmatism in judging in this sense? 
This is a key question I have wrestled with. What happens when 
the law seems to lead to a result that just doesn't make any 
sense? I have occasionally read decisions at every level. They 
could be local level and individual stuff.
    The judge seems to be following the law and then the actual 
result just in the real world doesn't make any sense. Do judges 
have a responsibility to interpret a statute in a way to make 
sense when it is actually applied?
    Ms. Kagan. Well, Senator Schumer, I think that if the text 
of a statute is clear, it would be wrong for a court to say 
well, the text says X but I don't think X makes sense, so I'll 
choose Y.
    I don't think that a court should do that. If the text says 
X, the text is the best evidence of Congress' intent and the 
text might say X for a variety of reasons. Even if you think 
gee, what sense does that make and how is that consistent with 
the broad purposes of the statute?
    In fact, the legislative process is a messy thing and 
people make compromises along the way and a legislative text is 
the result of all that deliberation and all those compromises.
    To the extent that the text says something clear about a 
statute, the court should stick with that and stick with it 
even in the court's view that is not what makes sense.
    Now, sometimes there is ambiguity in statutes and then the 
question is well, what do you do? How do you clarify that 
ambiguity?
    One of the things to do is to look to Congress' purposes in 
enacting a statute and try to figure out, you know, if Congress 
knew that this result would happen, is that result consistent 
with Congress' purpose or not? That's a very sensible thing for 
a court to do because in the absence of textual guidance, and 
maybe in the absence of any structural guidance, one, you know, 
good and appropriate approach is to look to the purposes of the 
statute and to try to figure out which interpretation of the 
statute is more consistent with that Congressional purpose.
    One way to do that is to say well, what would that 
interpretation of the statue actually do in the world and is 
that consistent with what Congress thought ought to be done.
    Senator Schumer. Right. OK. Let me go to a couple of 
specific cases. One case, recent case was Gross versus FBL. 
There the court said that in an age discrimination case, the 
statute passed by Congress requires the plaintiff to prove that 
the employer's only motive was discriminatory, even though for 
years courts have recognized that only employers have access to 
the evidence of their own motivation.
    It almost said to a plaintiff who thought that he or she 
was discriminated against, we're going to sort of put you in a 
Catch 22. You have got to prove that the only motive was 
discriminatory and you can't, which seems to me just in line 
for what you said. Congress never would have intended that 
because it is impractical and the law had some I think latitude 
in terms of interpretation.
    I'm not going to ask you to comment because it is a 
specific case, but at least I'd like to throw that one out.
    The second one which I do want to talk about a little bit 
is Citizens United which has been talked about here before. It 
is a confounding and deeply troubling opinion for a whole lot 
of reasons. I'm going to start with some basics of First 
Amendment law.
    My colleagues and I may have some philosophical differences 
about campaign finance. While I disagree with Buckley v. Voleo, 
it certainly undertook a lengthy First Amendment analysis. Yet 
as we know, no amendment is absolute. The First Amendment isn't 
absolute and there are countless cases related to liable, 
related to imminent danger, you can't scream fire in a, falsely 
scream fire in a crowded theater. So there are limitations on 
the First Amendment like there are limitations on every 
amendment.
    The Heller case recently in a case that was decided 
yesterday certainly said there could be limitations on the 
Second Amendment even if it applied to the states in the way 
the courts did.
    Do you agree with that principle that no amendment is 
absolute and there are reasonable limitations, balance tests on 
every amendment?
    Ms. Kagan. The First Amendment has not been thought to be 
absolute. I think that the last Justice who thought that was 
maybe Justice Black. I think almost all Justices have 
understood.
    Senator Schumer. Right. He wrote a lot of descents.
    Ms. Kagan. You know, you yell fire in a crowded theater or 
you yell into a cardiac victim's ear, nobody is going to 
protect that under the First Amendment.
    Senator Schumer. Right. So then the correct question is 
when is law tailored enough to address a specific action and 
how strong is the government interest behind that law?
    In the McCain/Feingold law, Congress as you talked about a 
little bit some of my colleagues here, studied and considered 
the effect that special interest money had on campaigns. 
Congress came to the common sense conclusion that these 
expenditures had a poisonous effect on our democracy.
    But the five Justice to majority ignored Congress' 
judgment. We won't go into the fact that they went out of their 
way to find the case, and undermined Congress' powers to pass 
laws based on Congress' collective judgments.
    I think some of my colleagues on the other side of the 
aisle missed the mark of what McCain/Feingold, what was at 
issue about McCain/Feingold in Citizens United. With respect to 
my good friend Orrin Hatch's earlier points, it wasn't about 
banning books or about restricting who can speak, it was about 
Congress making its best judgment on limits on how much can be 
spent and what are the appropriate limits to protect our 
electoral process.
    Congress tried to tailor its approach with respect to 
speakers and speech and McCain/Feingold sets limits very high 
up. It's not about publishing a pamphlet. It is about putting 
an ad on for the 4,111th time and is that the same right as 
saying it initially.
    Corporations, let's remember, corporations always, could 
always spend money on politics. They had to do it through 
packs, Congress made the determination that unlimited spending 
by corporations could create corruption and the appearance of 
corruption.
    So I don't agree with how this case has been characterized 
by some of my colleagues. In fact, the court many times has 
upheld Congress' right to pass anti-corruption campaign finance 
laws.
    In 2003, the court said prevention corrupting activity 
clearly qualifies as an important governmental interest and yet 
just 7 years later with the addition of Justices Roberts and 
Alito, the court completely reversed itself.
    The majority wrote this court now concludes that 
independent expenditures including those made by Corporations 
do not despite huge Congressional findings to the contrary in 
what seems to me to be common sense, do not give rise to 
corruption or the appearance of corruption. Those two holdings 
clearly are not consistent, right?
    Ms. Kagan. Well, Senator Schumer, I argued the case before 
the court. I focused quite heavily on the Congressional record 
that had been put together before McCain/Feingold. I argued 
that the court should give deference to that Congressional 
record.
    Now, the court disagreed. The court said use the compelling 
interest standard which I think everybody agreed was the right 
standard but said that standard had not been met.
    Senator Schumer. And what about, what do you think if you 
could comment generally, I'm not asking about the Roberts 
concurrence in which he distinguished Austin as an abhorration. 
What do you think of that?
    Ms. Kagan. Oh, I'm sorry. Senator Schumer, the government 
argued that it was not an abhorration and this was very much an 
issue in this case. This was certainly the theory of the other 
side and it was adopted by the court and specifically discussed 
in the Chief Justice's opinion that the chief Justice said that 
Austin itself had been contrary to prior precedent.
    The government argued that it had not been. That it was 
consistent with a line of precedent and with a historic 
understanding of appropriate role of----
    Senator Schumer. And there had been a broad line, the 
government argued that there had been a broad line of cases 
that had been consistent with Austin, isn't that right?
    Ms. Kagan. Yes. That's correct.
    Senator Schumer. And the government argued that moving, you 
know, distinguishing, moving away from Austin was the 
abhorration, right?
    Ms. Kagan. The government certainly argued that moving away 
from Austin would be a disruption of the system, especially 
given the reliance that Congress and that the states had placed 
on Austin.
    Senator Schumer. Right. OK. I'd like to move on here. Just 
one little thing on these revered judges. This was about the 
Israeli justice Barak. I'd just like to ask you.
    You said you introduced a whole lot of people. You said 
you'd do a very nice introduction for any of us which we 
appreciate.
    Here is something you wrote about Judge Posner who clearly 
doesn't have the same ideology, the same views as Justice Barak 
or of many, of me for sure.
    But you wrote Judge Posner is a prober. He is constantly 
asking why the problems before him have arisen. What features 
of the world are responsible for the party's conflict and their 
inability to resolve them. He is always exploring why legal 
documents are the way they are, behind the boilerplate 
statements and string citations provided by the litigants, what 
purposes and goals the law is seeking to serve.
    Should I because you wrote something so nice about Judge 
Posner think that you have the same views that he does?
    Ms. Kagan. I think that that's a pretty good description of 
Judge Posner, but no I don't think you should think that.
    Senator Schumer. The same as with Judge Barak, right?
    Ms. Kagan. The same as with Judge Barak.
    Senator Schumer. OK. And we could probably find you wrote 
glowing tributes to all kinds of people of many different 
ideologies. So it would be impossible for you to agree with all 
of them, right?
    Ms. Kagan. One of my greatest introductions was to Justice 
Scalia.
    Senator Schumer. There you go. Good.
    Ms. Kagan. Whom I in fact have the greatest admiration for.
    Senator Schumer. Thank you for that. Let's go a little to 
foreign law which came up a few times here.
    Some of your critics have implied that you will improperly 
consider foreign law and sources in cases before you. They cite 
your inclusion of international law into the first year 
curriculum, shame on you, as an indication that you don't 
sufficiently respect the autonomy of the U.S. from foreign law.
    Just so the record is clear 100 percent, what do you 
believe is the appropriate role, if any, of foreign law in U.S. 
courts?
    Ms. Kagan. Senator Schumer, the American constitution is an 
American document with an American history with American 
precedence. The fundamental way in which courts should approach 
interpretation of that document is by looking at that document 
and the American sources that interpret it.
    Now, there may be instances such as some of the ones that I 
suggested where international law or foreign law is relevant, 
you know, the meaning of Embassador, the interpretation of the 
authorization for the use of military force were two instances 
I gave.
    But in general, this is an American constitution which 
needs to be interpreted by American judges using American 
sources.
    Senator Schumer. All right. Just tell us why you put 
international law into the curriculum at Harvard. Is it because 
as some of the critics I have seen in some of the blogs and 
other places, is it as some of these critics suggested because 
you believe it is more important than U.S. constitutional law?
    Ms. Kagan. No, Senator Schumer. It is what I said to 
Senator Grassley. U.S. constitutional law is basic, it is 
fundamental, but I do believe that law graduates in our world 
today need to have some understanding of the laws beyond 
American shores to do international litigation, to do 
international transactions.
    We live in an interconnected world, we live in a 
competitive world and if our lawyers don't understand that 
world, quite honestly we are going to be at a competitive 
disadvantage.
    Senator Schumer. Do you know any law school that doesn't 
have some kind of international law course in its curriculum?
    Ms. Kagan. I think that that would be unthinkable.
    Senator Schumer. OK. And of course when an American judge 
considers, they consider many non-binding sources when they 
reach a determination.
    I asked this of Judge Sotomayor because it came up then. 
Judge Roberts' prominent citation in a voting rights act case 
decided last year, Justice Roberts, he cited an article by NYU 
Professor Samuel Isacaroff published in the Columbia Law 
Review.
    Would you agree that Law Review articles are not binding on 
American judges even though they might be cited by some?
    Ms. Kagan. Some law professors would like them to be 
binding, but no. I agree, Senator Schumer, that the way they 
are cited in these decisions are just, this isn't binding, this 
isn't precedent, but this is a person who had a good idea and 
the decision in some sense cites or reflects that.
    Senator Schumer. And it sure wasn't improper of the Chief 
Justice to consider such sources in reaching his decision, was 
it?
    Ms. Kagan. Absolutely not.
    Senator Schumer. And how about Justice Scalia? He has a 
well known regard for dictionary definitions in determining the 
meaning of words or phrases and statutes being interpreted by 
the court.
    In one case, MCI versus AT&T, Justice Scalia cited not one 
but five different dictionaries to establish the meaning of the 
word ``modify'' in a statute. Would you agree that dictionaries 
are not binding on American judges?
    Ms. Kagan. That's correct.
    Senator Schumer. OK. But was it improper for Justice Scalia 
to consider dictionary definitions?
    Ms. Kagan. Of course not.
    Senator Schumer. Right. So in conclusion, wouldn't you 
agree that American judges of all ideological stripes keep 
their minds open to sources and ideas other than those that are 
directly binding on them under the constitution and the laws of 
the United States?
    Ms. Kagan. I do think that that's right, Senator Schumer, 
that judges should keep their minds open, should learn from a 
variety of sources that are not binding, that do not have 
precedential force.
    Senator Schumer. Thank you. Mr. Chairman, I will yield back 
my remaining time.
    Chairman Leahy. Thank you very much. Of course I encourage 
any Senators who want to do that. We will stand in recess for 
approximately 10 minutes. Everybody will get a break. How are 
you doing?
    Ms. Kagan. I'm good.
    Chairman Leahy. I'm enjoying some of the ethnic humor here. 
Wait until I talk about the Italian side and the Irish side of 
my family and the French Canadian side of my wife's family. We 
will have something going. We stand recessed.
    [Recess 4:35 p.m. to 5 p.m.]
    Chairman Leahy. The only reason I don't stop the 
photographers immediately, they have the one job that I wish I 
had if I wasn't in the U.S. Senate, and that's being a 
photographer. So out of sheer envy, I can't stop them.
    We're going to see how far we can go. Senator Cornyn, 
you've been waiting patiently here for a day and a half. Please 
go ahead.
    Senator Cornyn. Thank you, Mr. Chairman.
    Ms. Kagan, you had an interesting and refreshing exchange 
with Senator Graham a little earlier about Miguel Estrada, who 
as you know was nominated to the D.C. Circuit Court of Appeals. 
I would say that your friendship and mutual admiration is 
apparent. But I'm curious. During the time that he was 
nominated to the Circuit Court of Appeals, did you ever speak 
out publicly or talk to him privately about his nomination and 
the fact that he was filibustered seven times?
    Ms. Kagan. You know, I--I--I don't think that we--we--we've 
sort of been in and out of touch during those years. I'm not 
actually sure that we talked during that time. We might have, 
I'm just not sure.
    Senator Cornyn. And I gather you did not have any public 
comment about the filibuster of his nomination?
    Ms. Kagan. Senator Cornyn, I would have done whatever he 
asked me to do because I think he's a great lawyer, as I said, 
and a great human being. I don't think he ever asked me. There 
was a time when I was dean when I didn't do any letters of that 
kind. Before I was dean, I wrote letters of that kind for 
Michael McConnell and for Peter Keissler. I think if I didn't 
with Miguel, it's because he never asked me to do so.
    Senator Cornyn. You've had a very interesting questions-
and-answers session with Senator Specter, who asked you about 
cameras in the courtroom. I happen to agree with him, and you, 
that that would be a great educational opportunity for the 
American people. I know from experience that cameras can be 
placed unobtrusively in an appellate court and no one really 
pays any attention to them, but it's a great opportunity for 
people to watch and learn, just as I hope they are watching and 
learning something about our judiciary and the Supreme Court as 
a result of these hearings.
    While I agree with you on that point, I confess to be 
troubled still about the exchange that you had with Senator 
Sessions over banning military recruiters at Harvard, and I 
expect we'll come back to that at a later point.
    But I'd like to go back to where I started in my opening 
statement, talking about the traditional concept of the role of 
a judge as opposed to the role of an activist, as I try to 
define it. Traditionalists who feel bound to a written 
Constitution and written laws and precedent as opposed to 
judges who believe that there is--that there--whether it's 
their empathy, as the President has talked about it, or a 
living Constitution which has no fixed meaning, that's what I 
mean by the activist role.
    In an earlier exchange with Senator Leahy, you stated that 
there are two ways to change the Constitution. Obviously by 
Article 5. You said, secondly, by court decision, and I want to 
ask you a little bit about that. You cited Brown v. Board of 
Education as an example of a court decision that changed the 
Constitution, stating that the Framers of the Fourteenth 
Amendment believed it allowed segregation in schools.
    I believe, and I think a number of prominent legal scholars 
agree, that Brown did not change the Constitution. Rather, I 
believe Brown affirmed and restored the original meaning of the 
Fourteenth Amendment by overturning the repugnant and 
unconstitutional separate but equal regime sanctioned by Plessy 
v. Ferguson. So I support Brown on originalist grounds.
    I would just refer you to Senator Charles Sumner, a leading 
framer of the Fourteenth Amendment, who said, ``It's easy to 
see that the separate school, founded on an odious 
discrimination and sometimes offered as an equivalent for the 
common school, is an ill-disguised violation of the principle 
of equality.''
    Between 1870 and 1875, both Houses of the U.S. Congress 
voted repeatedly, by significant majorities, in favor of 
legislation premised on the theory that segregation in the 
public schools is unconstitutional.
    So in light of this history, I believe that Brown did not 
change the Constitution, but rather realigned the 
interpretation of the Fourteenth Amendment with the intentions 
of the Framers of the Fourteenth Amendment.
    So on this, you and I may disagree, but let me----
    Ms. Kagan. If I could, Senator Cornyn.
    Senator Cornyn. Sure.
    Ms. Kagan. I think I didn't say that Brown changed the 
Constitution. I think I said that Brown interpreted the 
Constitution in a different way than it had been interpreted 
theretofore. I do think it's hard to make the case that school 
desegregation was thought of as commanded by the Fourteenth 
Amendment in 1868, and I think that there are a variety of 
other practices that similarly were countenanced in 1868 that 
are not now. That doesn't mean that the Constitution has 
changed.
    In fact, the Constitution's Equal Protection Clause is a 
quite general provision. It speaks in broad terms. It lays down 
a general principle of equality. And in writing the provision 
that way, I think that the drafters of the Constitution knew 
exactly what they were doing. They didn't mean to 
constitutionalize all of their practices in 1868. They meant to 
set forth a principle of equality that would be applied over 
time to new situations and new conditions, and I think that 
that's exactly what has occurred.
    Senator Cornyn. I appreciate your answer. What I'm trying 
to figure out is whether you and I agree or disagree about how 
the American people can change their Constitution. Do you think 
the courts can change the Constitution or do you agree with me 
that Article 5 has the sole means by which the Constitution can 
be modified--that is either by Congress proposing a 
constitutional amendment or by a constitutional convention 
proposing constitutional amendments which are later ratified by 
three-quarters of the States?
    Ms. Kagan. I think the Constitution is a timeless document, 
setting forth certain timeless principles. It's the genius of 
the Constitution that not everything was set forth in specific 
terms, but that instead certain provisions were phrased in very 
general terms that enabled people, that enabled the courts over 
time to apply the principle to new conditions and to new 
circumstances.
    I think that that's the continuing obligation of the Court 
to do that, to ensure that the Constitution does apply 
appropriately and that the timeless principles set forth in the 
Constitution do apply appropriately for our posterity.
    Senator Cornyn. Do you believe in the idea of a living 
Constitution, that the Constitution itself has no fixed 
meaning?
    Ms. Kagan. You know, I think that--I--I don't particularly 
think that the term is apt, and I especially don't like what 
people associate with it. I think people associate with it a 
kind of loosey-goosey style of interpretation in which anything 
goes, in which there are no constraints, in which judges can 
import their own personal views and preferences. And I most 
certainly do not agree with that.
    I think of the job of constitutional interpretation the 
courts carry on as a highly constrained one, as constrained by 
text, by history, by precedent, and the principles imbedded in 
that precedent. So the courts are--are--are limited to 
specifically legal sources. It's a highly constrained role, a 
circumscribed role.
    So to the extent that that term is used in such a way as to 
suggest that that's not the case, I don't agree with that. But 
I do think, as I just indicated, that the Constitution, and 
specifically--not the entire Constitution, but the general 
provisions of the Constitution, that the genius of the drafters 
was--was to draft those so that they could be applied to new 
conditions, to new circumstances, to changes in the world.
    Senator Cornyn. So I'm clear, do you agree or disagree that 
the Supreme Court of the United States can change the 
Constitution?
    Ms. Kagan. The Constitution does not change. The 
Constitution is a--you know, unless by amendment. The 
Constitution is a document that--that--that does not change, 
that is timeless, and--and timeless in the principles that it 
embodies. But it of course is applied to new situations, to new 
facts, to new circumstances all the time. In that process of 
being applied to new facts and new circumstances and new 
situations, development of our constitutional law does indeed 
occur.
    Senator Cornyn. And so do you agree that honoring the 
Constitution means respecting the ability of only the people to 
change it through constitutional amendment under Article 5?
    Ms. Kagan. Senator Cornyn, Article 5 gives the--the only 
way to actually amend the text of the Constitution. That is the 
only way to amend the text of the Constitution. But I also want 
to say again the sort of second half of this, that the text of 
the Constitution has to be applied to new circumstances, to new 
conditions, to new developments in the world, and that it's the 
job of the courts to do that.
    Senator Cornyn. And I can't disagree with what you just 
said. But to me, when you interpret the Constitution, and how 
it applies to a given set of facts, that does not, to my way of 
thinking, imply that you're changing the Constitution, but 
rather interpreting and applying the Constitution to that set 
of facts. Do we agree?
    Ms. Kagan. I think that's right. The Constitution is the 
Constitution, but it is interpreted and it applies to new facts 
as they come up, new cases as they come up, new circumstances 
as they come up.
    Senator Cornyn. As I've----
    Ms. Kagan. Just to, you know, give a concrete example of 
this, and it goes to----
    Senator Cornyn. Let's--let's move on, because I think you 
and I agree so far. But let me challenge it a little bit more. 
As I've defined the term ``judicial activism,'' it is the 
belief that there is no such thing as a fixed meaning of the 
Constitution and laws, but rather that judges possess some sort 
of power to--to create constitutional rights out of whole 
cloth. Do you believe that that kind of judicial activism, as 
I've tried to define it, is ever justified?
    Ms. Kagan. I think that judges are always constrained by 
the law. They're constrained by--you know, I mean, sometimes 
the text speaks clearly and then they're constrained by the 
text alone. Where the text doesn't speak clearly, they look to 
other sources of law. They look to original intent, they look 
to continuing history and traditions, they look to precedent 
and the principles embodied in those precedents. But they're 
always constrained by the law. It's law all the way down.
    Senator Cornyn. Let's change the topic slightly and talk a 
little bit about Federalism. Millions of Americans believe that 
the Federal Government is simply out of control today because 
they were taught, as perhaps all of us were taught, that the 
Federal Government is one of enumerated powers and that all 
powers not delegated to the Federal Government are retained by 
the people and by the States. That's paraphrasing the Tenth 
Amendment, of course.
    Under the Framer's Constitution, the Supreme Court has an 
important role in limiting the reach of the Congress, which in 
my experience, and by my observation, knows no limits to its 
own power. The only way Congress is going to be restrained is 
by one of two ways. Either the Court is going to say ``you've 
gone too far,'' which occasionally they've done, or the people 
will amend the Constitution, either through the Congressionally 
proposed constitutional amendment process or through the 
constitutional convention process, proposing amendments which 
are then ratified.
    But do you agree with me that Supreme Court cases in recent 
decades have largely eliminated the important role of the 
Supreme Court in checking the size and scope of the Federal 
Government?
    Ms. Kagan. Senator Cornyn, I guess I actually think that in 
recent decades the Court has suggested that there are some 
limits on the scope of the Federal Government, so if you go 
back to the earliest days, Chief Justice Marshall and Gibbons 
v. Ogden, that was the first case that--at least the first 
important case that interpreted the scope of the Commerce 
Clause, and there Justice Marshall wrote a fairly expansive 
opinion, talking about the interconnectedness of the United 
States and the need for the Nation to function as a Nation.
    Now, over time the Court imposed very significant limits on 
Congress' power. This was basically until about 1935, imposed 
very significant powers--limits on Congress' power under the 
Commerce Clause. At that point, a switch took place and--and 
the Supreme Court determined that the old jurisprudence really 
wasn't working, that the distinctions that the Court had set up 
between direct and indirect effects on Congress wasn't working, 
that the distinction that the Court had set up between 
manufacture and commerce wasn't working. And the Court also, I 
think, realized--and this was really the great recognition of 
those New Deal years--was that deference to Congress was 
appropriate in this area.
    Senator Cornyn. How about--how about today? You talked 
about some legal history that I'm vaguely familiar with. But 
today--let me give you an example. I'm not going to ask you to 
tell us how you would decide the case, but, for example, many 
Americans are concerned by the fact that the Federal 
Government, in the recent health care legislation that was 
passed, has imposed an individual mandate on health coverage 
and imposed a penalty, a financial penalty, if you don't 
purchase government-approved health insurance. To my knowledge, 
that would represent an unprecedented reach of Congress' 
authority to legislate under the Interstate Commerce Clause, 
under the guise of regulating interstate commerce.
    But again, the Tenth Amendment, which I think most people 
sort of popularly view as an expression of our Federal system 
and the fact that the States and individuals retain power 
that's not been delegated to the Federal Government, has 
largely, in my opinion, been rendered a dead letter by Supreme 
Court decisions.
    Now, I grant you that the Rehnquist court, in the Lopez 
case and others, did begin to work a little bit around the 
edges, but if Congress can force people who are sitting on 
their couch at home to purchase a product and penalize them if 
they don't purchase the government-approved product, it seems 
to me there is no limit to the Federal Government's authority, 
and we've come a long, long way from what our Founders 
intended. Do you agree?
    Ms. Kagan. Well, I think the current state of the law is to 
grant broad deference to Congress in this area, to assume that 
Congress knows what's necessary in terms of the regulation of 
the country's economy, but to have some limits. The limits are 
the ones that were set forth in the cases that you mentioned, 
the Lopez case and the Morrison case, which are where the 
activity that's being regulated is not itself economic in 
nature and is activity that's traditionally been regulated by 
the States.
    But to the extent that Congress regulates the channels of 
commerce, the instrumentalities of commerce, and also to the 
extent that Congress is regulating things that substantially 
affect interstate commerce, there the Court has given Congress 
broad discretion.
    Senator Cornyn. And would you agree with me that if the 
Supreme Court of the United States is not going to constrain 
the power grabs of the Federal Government and constrain 
Congress in terms of its reach down to people's everyday lives, 
that there remain only two constitutional options available: 
one is either to pass a constitutional amendment, for Congress 
to propose it, and then to have that ratified by three-quarters 
of the States, or for a constitutional convention to be 
convened for purposes of proposing constitutional limits on 
Congress, which would then have to be ratified by three-
quarters of the States. Do you agree with me, that's the only 
recourse of the people to a limitless reach of the Federal 
Government, assuming the Supreme Court won't do it?
    Ms. Kagan. Well, I do think that there are limits on 
Congress' commerce power. They're the limits that were set 
forth in Lopez and Morrison, and they're basically limits 
saying that Congress can't regulate under the Commerce Clause 
where the activity in question is non-economic in nature. I 
think that that's the limit that the Court has set. But within 
that, you're quite right that Congress has broad authority 
under the Commerce Clause to act. To the extent that you or 
anybody else thinks that Congress ought not to have that 
authority under the Commerce Clause to act, an amendment to the 
Commerce Clause would be a perfectly appropriate way of 
changing the situation.
    Senator Cornyn. Under Article 5 of the Constitution?
    Ms. Kagan. Under----
    Senator Cornyn. In other words, the amendment process?
    Ms. Kagan. Yes, yes, yes.
    Senator Cornyn. Either through----
    Ms. Kagan. I mean, any--any----
    Senator Cornyn.--a constitutional amendment proposed by 
Congress----
    Ms. Kagan. You know, any part of it.
    Senator Cornyn.--or a constitutional convention----
    Ms. Kagan. Any part of the----
    Senator Cornyn.--proposed by the States.
    Ms. Kagan. Any part of the Constitution can be amended 
through Article 5.
    Senator Cornyn. I was--I was pleased to hear you say that, 
once decided by the Supreme Court, even by a 5-4 margin, that 
cases like Heller, McDonald, and Citizens United are--are the 
law of the land and entitled to--entitled to deference by 
succeeding Courts, even if you may disagree with the outcome. 
Did I state that correctly?
    Ms. Kagan. Yes. Surely. The entire idea of precedent is 
that you can think a decision is wrong, you can have decided it 
differently if you had been on the Court when that decision was 
made, and nonetheless you are bound by that decision. That's 
the--if--if--if--if the doctrine of precedent enabled you to 
overturn every decision that you thought was wrong, it wouldn't 
be much of a doctrine.
    Senator Cornyn. I would just distinguish that from 
Congress. The rules, I guess, dating back to Parliament in 
England, that no Congress, no Parliament, could bind a 
succeeding Parliament. So this Congress can pass a law and the 
next Congress can essentially repeal that act. That's entirely 
appropriate, should Congress decide to do that. Correct?
    Ms. Kagan. That's quite right, Senator Cornyn. It's a 
really fundamental difference between the legislative process 
and the judicial process. The reason that the doctrine of 
precedent has developed--or I suppose many reasons. One is just 
the incredible importance of stability in the system, but also 
just a notion of humility, that no judge should look at a case 
and say, oh, I would have decided it differently, I'm going to 
decide it differently, that a judge should--should view prior 
decisions with a great deal of humility and deference.
    Senator Cornyn. Well, it would be--it would be a strange 
system indeed if succeeding Supreme Courts--in other words, 
once you're confirmed to the Supreme Court and you're sitting 
there it would be a strange situation if then the litigants 
could bring the same case back that was decided in McDonald or 
Heller and, because you happen to disagree with it, that you 
could change the meaning of the Constitution more or less at 
will. That would not be a good system of jurisprudence, would 
it?
    Ms. Kagan. I do believe that, Senator Cornyn. I think 
when--when the Court looks as though it's flipping around and 
changing sides just because the justices have changed, that 
that's bad for the credibility of the institution and it's bad 
for the system of law.
    Senator Cornyn. Let me talk a little bit more about guns. I 
was--I was--I kind of chuckled when I saw a notation in some of 
the records we got from the Clinton archives, that you referred 
to some of the gun--gun advocates as ``gunners.'' But I really 
didn't take that too seriously. I just thought it was kind of--
it made me chuckle a little bit.
    Ms. Kagan. You know, I just don't know what you're 
referring to, Senator Cornyn. I've not seen that ever.
    Senator Cornyn. OK. Well, maybe I'll show that to you 
sometime.
    But I just want to----
    Ms. Kagan. You know, gunners is a kind of law school term 
of art.
    Senator Cornyn. Well, basketball, law school, whatever, you 
know.
    But let me just ask you, isn't it true that in the McDonald 
case, as in the Heller case, that the Court did not touch a 
number of permissible prohibitions on gun ownership and gun 
possession? For example, concealed weapon prohibitions, 
prohibitions on possession of firearms by felons or persons who 
are mentally ill, carrying guns in government buildings, and 
the like. In other words, just by recognizing that individual 
right to bear and keep arms, the Supreme Court didn't touch 
those prohibitions on gun ownership under a number of those 
circumstances, wouldn't you agree?
    Ms. Kagan. Senator Cornyn, I've not yet had a chance to 
read the McDonald opinion that came out yesterday, but I know 
that in Heller the Court specifically says that nothing in the 
opinion is meant to suggest the unconstitutionality of a number 
of kinds of provisions. I think the kinds of provisions listed 
in Heller are felon and possession laws, are laws regulating 
the possession of guns in certain sensitive places, and I think 
that there's one dealing with various commercial activities 
regarding guns.
    Senator Cornyn. Right.
    Ms. Kagan. So the Court said that really nothing, in its 
opinion, is meant to in any way cast doubt on the 
constitutionality of those longstanding laws.
    Senator Cornyn. I would just--and in McDonald v. Chicago, 
Justice Alito, on page 39 and 40 of the slip opinion, 
reiterated the same assurances that you just talked about in 
Heller that they would apply after the McDonald case was 
decided as well.
    Ms. Kagan, one of the things that you've heard a lot of us 
talk about, is obviously you've had a very distinguished career 
and we all congratulate you for the great honor of being 
nominated to the United States Supreme Court. But since you 
haven't been a judge--and no, that's not a disqualifier, we all 
know that--we don't have a judicial record, for example, like 
we had with Judge Sotomayor by which to sort of see what her 
track record looked like when it came to deciding cases. And so 
we've been trying to get everything we can to understand where 
you're coming from, how you would perform your duties as a 
judge. I congratulate you on your testimony here today. I think 
you've done a good job of explaining from the witness chair how 
you would decide cases.
    But one of the things that--that makes me a little 
skeptical sometimes is, for example, during the confirmation 
hearings of Judge Sotomayor, she said--we were talking about 
the right to keep and bear arms--She said: ``I understand how 
important the right to bear arms is to many, many Americans. In 
fact, one of my godchildren is a member of the NRA, and I have 
friends who hunt. I understand the individual right fully that 
the Supreme Court recognized in Heller.'' Let me read that last 
sentence again: she said, ``I understand the individual right 
that the Supreme Court recognized in Heller.''
    But on Monday, in the dissenting opinion filed by Justice 
Sotomayor, along with Justices Breyer and Ginsburg, that 
dissenting opinion said: ``The Framers did not write the Second 
Amendment in order to protect a private right of armed self-
defense.''
    I don't know how you reconcile those two statements, that 
there is an individual right, and then to conclude later, in 
the context of McDonald, that the Framers did not write the 
Second Amendment in order to protect a private right of armed 
self-defense.
    Justice Sotomayor went on and said, ``I can find nothing in 
the Second Amendment's text, history, or underlying rationale 
that would warrant characterizing it as fundamental insofar as 
it seeks to protect the keeping and bearing of arms for private 
self-defense purposes.''
    Now, it is disconcerting, to say the least, where what 
appears to me--I think, and in fairness, does appear to be--a 
direct contradiction of what Judge Sotomayor said in her 
confirmation hearings with what she has decided in the first 
opportunity to decide a case on that same subject.
    And so you understand why members of the Committee are 
careful to understand not just a nominee's qualifications, 
background, and experience, but also the judicial philosophy 
and approach of the nominee, so that we can have some 
reasonable assurance that the way the nominee testifies is--not 
in deciding individual cases, but generally speaking--going to 
be honored and respected once they receive a lifetime 
appointment.
    Let me just ask you, do you believe that the Second 
Amendment guarantees a fundamental individual right to keep and 
bear arms for law-abiding Americans?
    Ms. Kagan. Senator Cornyn, I think that Heller is settled 
law, and Heller has decided that the First--excuse me, that the 
Second Amendment confers such an individual right to keep and 
bear arms.
    Senator Cornyn. And do you believe like the majority in 
McDonald--do you agree with that decision that the Second 
Amendment is fully applicable to the States, has full stare 
decisis effect? And is there any reason that you know of why it 
would not be controlling?
    Ms. Kagan. There is no reason I know of, that McDonald, as 
well as Heller, as settled law and entitled to all the weight 
that precedent usually gets.
    Senator Cornyn. OK. Well, in the minute and 35 seconds we 
have remaining for this round, let me just ask you, take you 
back again to Citizens United. I think a number--in the opening 
statements you heard a number of differences of opinion on the 
part of this Committee about--about the decision.
    But I would ask, something you said that the Court would 
look at in determining the constitutionality of restrictions on 
free political speech, that I think I heard you say that the 
Court could look at the motives of the people advocating for 
those restrictions. Did I understand that correctly?
    Ms. Kagan. I don't think so. I'm not sure what I--what I 
said that you might have gleaned that from. I actually did 
write an article about this during my years as a law professor 
at the University of Chicago. It was not that the Court should 
look to the motives of the legislature, it was really that 
First Amendment doctrine--a lot--quite a number of the rules of 
First Amendment doctrine were understood as reflecting a 
concern about governmental motive, but that the rules were set 
up so that the court never had to make that underlying inquiry 
about governmental motive.
    Senator Cornyn. Let me ask you one last question in the few 
seconds we have. Assuming that a majority party, let's say 
Democrats who enjoy a very large majority in both Houses of the 
legislature, decide to suppress the speech of political 
supporters of the minority because they have the votes in order 
to do so, in effect trying to put a thumb on the--on the scales 
in terms of political speech. Do you think a court can look at 
those kinds of motives--seeking advantage, picking winners and 
losers in the course of restricting political speech?
    Ms. Kagan. Senator Cornyn, I think that the Court does it, 
but not by looking directly at motive. The--the most--one of 
the most important doctrines of the First Amendment is the 
near-complete ban on viewpoint discrimination, that viewpoint 
discrimination is held to the highest constitutional standard.
    And that's because of a concern that the majority is 
attempting to suppress the speech of a minority, and the 
classic example is very much along the lines that you gave, is 
a legislature saying there will be no speech by Republicans or 
there will be no speech by Democrats. And the way that the 
Court would view that is that that's a classic example of a 
viewpoint discrimination and is pretty much presumptively 
prohibited.
    Chairman Leahy. Thank you.
    Senator Durbin.
    Senator Durbin. Thank you, Mr. Chairman.
    Ms. Kagan, welcome. You are probably aware of the fact that 
about 12 years ago, then-Majority Leader Tom Daschle began a 
tradition--thank goodness, it became a tradition--that every 2 
years the Senate would join the justices of the Supreme Court 
for a dinner at the Supreme Court building. It's one night out 
of 2 years and the only time when we come into direct contact 
with justices on the Supreme Court in a social setting. And 
most of us look forward to it and wonder which Supreme Court 
justice we'll draw at our table to have a chance for 
conversation.
    And this last time that we got together I was sitting with 
Justice Kennedy, and we talked about a lot of things. And I 
said to him at one point, it appears that I'm going to be 
chairing the Crime Subcommittee of the Senate Judiciary 
Committee, and what kind of issues do you think I ought to 
consider? And he said, well, I'll tell you what I think and 
I'll tell you, most Supreme Court justices would probably agree 
with me. He mentioned an issue which has not been raised during 
the course of this hearing. It related to the system of 
incarceration and corrections in the United States.
    He felt--and I agree--that our system is broken, badly 
broken. Today in the United States, more than 2.3 million 
people are in prison. We have the most prisoners of any country 
in the world, as well as the highest per capita rate of 
prisoners in the world, and African-Americans are incarcerated 
at nearly six times the rate of white Americans.
    One of the highlights of Justice Sotomayor's confirmation 
hearing last year was Senator Sessions, who told Wade Henderson 
of the Leadership Conference on Civil Rights, ``We're going to 
do that crack cocaine thing.'' Many people joked about Senator 
Sessions' choice of words, but I heard him and followed up on 
it because I was glad to hear that he shared my interest in 
this important issue.
    He was referring to the crack/powder disparity in 
sentencing in the United States, which is one significant cause 
for our record levels of incarceration and racial disparity in 
our system. It takes 100--under current law, it takes 100 times 
more powder cocaine than crack cocaine to trigger the same 
mandatory minimum sentences. Possessing 5 grams of crack 
cocaine carries the same 5-year mandatory minimum sentence as 
selling 500 grams of powder cocaine.
    Senator Sessions is a man of his word. Earlier this year, 
the Committee unanimously passed legislation to reduce the 
crack/power disparity from 100:1 to 18:1. Some of us had hoped 
for 1:1 or some other configuration, but this was, in fact, a 
wholesome, bipartisan agreement that was reported favorably 
with an overwhelming vote from this committee, and then passed 
on the floor with a voice vote, now sitting in the House, which 
I hope they'll soon address.
    You were involved with this issue during your time in the 
Clinton White House. In 1997, you and your colleague Bruce 
Reid, who I believe was with you yesterday, recommended that 
President Clinton support a 10:1 crack/powder ratio, and you 
wrote, ``Precisely because it takes a middle position . . . 
this recommendation offers the best hope of achieving 
progress.'' Perhaps if you'd been advising this Committee we 
could have taken action on the issue even earlier.
    Some have argued that you demonstrated your far left 
political views during your time in the Clinton White House, 
but I think this example, and many others, prove them wrong. 
Can you give me your views on this crack/powder ratio 
disparity, why you thought 10:1 was a reasonable alternative? 
And if you could, address this general question that Justice 
Kennedy raised about what's happening in America when it comes 
to our prisons and corrections system.
    Ms. Kagan. Senator Durbin, the crack cocaine ratio is the 
part of our sentencing system that I've had most to do with as 
a policy matter. When I was in the Clinton White House and when 
I was serving as a policy aide to the President, we did deal 
with this issue and suggested that the ratio be reduced to 
10:1. I think at that point some of us felt that it might go 
down even further, but thought that 10:1 was the practical 
approach to take, that it was conceivable.
    Now, in the end it wasn't. That was--that--that--that--the 
Clinton administration did not manage to make progress on that 
issue. I know that the Attorney General whom I serve, and the 
President, President Obama, has stated that their view is that 
it should go down all the way to 1:1, that in fact there's no 
real rational distinction between crack and powder cocaine 
for--for sentencing purposes.
    The--and that--and that that--the distinction that does 
exist is a distinction that has a great deal of racially 
disproportionate impact. I know that Congress has--has 
struggled with this issue. It is a policy issue, 
quintessentially. It's one, you know, that Justice Kennedy--he 
could have said, well, this is a good idea, or that's a good 
idea, but it really is one for Congress. There's--there's 
nothing that the Supreme Court, or that any court, can do about 
it.
    It's really one that Congress has to decide, what the 
sentencing rules ought to be with respect to--to crack and 
power cocaine. As a policy aide to President Clinton, and 
President Clinton felt strongly that it should go down. I tried 
to the best of my ability to implement his policy view on that 
question. President Obama believes the same. But as a judge--as 
a judge, the only thing that would matter would be the actual 
statute and--and unless and until Congress changes that 
statute, the--the current sentencing system would be the system 
that any judge should apply.
    Senator Durbin. So go to the broader issue for a moment. 
And I understand what you're saying. We write the laws and, as 
a judge, you need to follow those laws. As you step back, 
looking at this system, I mean, in light of your training in 
the law and all you've done, when you look at our system of 
corrections and incarceration in this country and you see the 
dramatic incarceration of minorities in our country, for 
example, does it suggest to you that we truly have equality 
under the law?
    Ms. Kagan. Senator Durbin, the crack/powder distinction is 
the one that I've dealt with most. There--there are many that I 
have not dealt with as a policy matter. I have seen some 
sentencing issues with--in my time as Solicitor General, but I 
have tried very hard during that time to apply the law that 
exists and to take appeals in the way that--that--that 
appropriately implements that law.
    So, you know, I think this--I think justices of the Supreme 
Court are appropriately interested in these kinds of questions. 
I know Justice Kennedy has taken a deep interest in sentencing 
issues. I think that that's much to his credit, but it's a kind 
of interest that I think has to be advanced in conversations of 
the kind that he had with you, because when a justice sits on 
the bench the justice can only apply the law that Congress is--
that Congress gives him or her, and it really is up to Congress 
to decide whether the system that we have is the correct one or 
whether to change it.
    Senator Durbin. I'd like to take this line of questioning 
to the next level, the ultimate criminal penalty: the death 
penalty. Because what I found interesting--I'm such a fan of 
John Paul Stevens. If you look back at his political origins, 
we came out of different branches of the Illinois political 
tree, that's for sure. But in the time that he served on the 
court, I've really come to respect him so much and the role 
that he plays, the important role that he plays there.
    And what I find interesting is a parallel outcome in 
judicial careers. The first was from Justice Harry Blackmun. 
Linda Greenhouse wrote this book that I've quoted from before. 
And Justice Blackmun, at the end of his career, near the time 
of his retirement, made an observation about the death penalty 
which he had supported throughout his term on the Supreme 
Court.
    A case came along and he had this famous sentence, oft-
quoted: ``From this day forward,'' Justice Blackmun wrote, ``I 
no longer shall tinker with the machinery of death.'' He 
basically had reversed his position on the death penalty after 
more than 30 years of service on the bench, when he concluded 
that it could not be applied fairly based on his experience in 
all the cases that had come before him.
    Justice Stevens had a similar epiphany in the case of Baze 
v. Rees. He went through this long analysis of the death 
penalty and concluded as well that it was cruel and unusual and 
he basically said, though, it wouldn't affect the ruling in 
this particular case, that he believed that at this point in 
his career he could no longer support the death penalty.
    You've had questions asked of you from this Judiciary 
Committee, when you came before us for Solicitor General, about 
your position on the death penalty. I think I know what your 
answer's going to be, and I'm going to give you a chance to put 
it on the record again. But then I would like to ask a follow-
up question about Justices Stevens and Blackmun at the end of 
their judicial careers.
    For the record, would you state your position on the death 
penalty?
    Ms. Kagan. Well, you're exactly right, Senator Durbin, that 
this was asked me during my Solicitor General hearing and in 
the written questions that followed, and I said then what I 
will repeat today, which is that the constitutionality of the 
death penalty generally is established law and entitled to 
precedential weight.
    Senator Durbin. You----
    Ms. Kagan. I think somebody also asked me whether I had 
moral qualms about imposing the death penalty. This was in 
connection with my Solicitor General nomination, so I think 
that the concern was whether, in any work as Solicitor General, 
I could appropriately make decisions. And I said that I had no 
such moral qualms and that I could conscientiously apply the 
law as it was written.
    Senator Durbin. Now I'll ask you to reflect on what 
happened at the end of the judicial careers of Justices 
Blackman and Stevens, where, after considering all of these 
death penalty cases throughout their time on the bench they 
came to the conclusion that we could not apply this law in a 
fair way without creating an unfair result. What do you think 
led them to that at that point in their careers?
    Ms. Kagan. I don't know, Senator Durbin, and I would be 
reluctant to speak for either one of them. This is obviously a 
difficult area of the law, an area in which there are great 
stakes and where people and judges feel their responsibilities 
is very heavy, and appropriately so. As I suggested to you, I 
do think that the constitutionality of the death penalty 
generally is settled precedent. I think even Justice Stevens 
agreed with that. He--in those comments that he made, he 
suggested that he did not think it was appropriate to do what 
Justice Brennan and Justice Marshall had done, which was to 
dissent in every death penalty case. He thought that that was 
inappropriate because of the weight of the doctrine of 
precedent.
    Senator Durbin. When you clerked for Justice Marshall, his 
views on the death penalty were well-known. Can you recall 
conversations with him on the subject when you were his clerk?
    Ms. Kagan. Well, they were well-known and Justice 
Marshall's clerks had, as a kind of special responsibility, and 
Justice Brennan's clerks as well--clerks carry out the vision 
of the people whom--with--for whom they work, and Justice 
Marshall and Justice Brennan did believe that the death penalty 
was unconstitutional in all its applications, but more 
specifically, I think, viewed themselves as having a special 
role in each death penalty case to make sure that there were no 
special problems in the imposition of a death penalty, and if 
there were, to bring those problems to the attention of the 
rest of the court to make sure that those issues would not be--
would not be missed or overlooked. And the clerks for Justice 
Marshall and Justice Brennan, of whom I was one, that was a 
significant part of the job.
    Senator Durbin. And for the record, I mean, your position 
as you view this issue, if you are confirmed and become the 
Supreme Court justice, would be different than that of Justice 
Marshall?
    Ms. Kagan. Senator Durbin, it would be because I do believe 
that the constitutionality of the death penalty is settled 
precedent going forward and--and--and Justice Marshall did not 
believe that.
    Senator Durbin. General Kagan, you've been nominated to 
replace Justice Stevens, who led the Supreme Court's efforts to 
reign in the Bush administration's claims of executive power. 
The American people, I think, need to have confidence that you, 
too, will stand up for our basic constitutional rights if you 
come to conclude that the President has overreached.
    The Bush administration took the position that the 
President has constitutional authority as Commander-in-Chief to 
indefinitely detain an individual who provides support to a 
terrorist organization, even if the person didn't know or 
intend to support terrorism. The administration infamously 
argued that a little old lady in Switzerland can be held 
indefinitely without trial for innocently making a donation to 
a charitable organization that she did not know was actually a 
front for a terrorist organization.
    You discussed at length with Senator Graham earlier, and 
Senator Feinstein as well, as Solicitor General you've argued 
the Obama administration position, that the AUMF, Authorization 
for Use of Military Force, permits the detention of someone who 
provided substantial support to the Taliban, Al Qaeda, or 
associated forces, even if this individual is not on the 
battlefield and has not directly participated in hostilities.
    This is obviously a change or improvement on the Bush 
administration position because it's based on constitutional 
authorization, not Presidential dictate. But I am still 
concerned that it is inconsistent with some of our treaty 
obligations, which only permit the military detention of 
battlefield combatants.
    A non-battlefield combatant who provides support for 
terrorism should be prosecuted and not subject to military 
detention. You have argued the Obama administration's position 
on detention authority as Solicitor General, but does this 
necessarily represent your personal opinion or how you would 
rule on its legality as a Supreme Court justice?
    Ms. Kagan. Senator Durbin, I think in general the positions 
that I've taken as Solicitor General do not necessarily 
represent positions that I would take as a justice, and I 
appreciate your actually suggesting that point in case I 
haven't emphasized it enough. The positions that I've taken as 
Solicitor General are positions for the U.S. Government.
    Senator Durbin. Advocacy.
    Ms. Kagan. And--and are--I have a client and I'm the best 
advocate I possibly can be for that client. And the role of a 
judge is--is different from the role of an advocate, and it's 
important to recognize that.
    Senator Durbin. And in this particular area, the Supreme 
Court has not ruled on the legality of detaining an individual 
for providing material support to terrorism. Is that not right?
    Ms. Kagan. The Supreme Court, in Hamdi, discussed only the 
detention of enemy belligerants who are picked up on the 
battlefield.
    Senator Durbin. And in Hamdi, Justice O'Connor famously 
said that a ``state of war is not a blank check for the 
President'', and the Supreme Court held that, with certain due 
process protections, the U.S. may detain individuals who fought 
against the United States in Afghanistan as part of the 
Taliban. The Supreme Court has not upheld military detention in 
the war on terrorism for anyone other than this narrow class of 
battlefield detainees, as I understand it. Is that the way you 
understand it?
    Ms. Kagan. Yes. Your understanding is mine, that Hamdi 
talked only about enemy belligerants who are picked up on the 
battlefield.
    Senator Durbin. That was one of the concerns I had with the 
nominations of Justices Roberts and Alito in terms of their 
interpretation of the law in this particular area. As an 
appellate court judge, in Hamdan v. Rumsfeld, John Roberts held 
that President Bush's military commissions were legal, even 
though they were created without congressional authorization, 
and allowed the use of evidence obtained by torture. The 
Supreme Court reversed Judge Roberts--then--Judge Roberts, 
holding that the military commissions violated the law. 
Incidentally, Justice Stevens was the author of that opinion.
    The Hamdan case, while it was pending, there was an 
extraordinary effort in Congress to force the Supreme Court to 
dismiss the case by retroactively stripping the right to habeas 
corpus from Guantanamo detainees. As dean of Harvard Law 
School, you, along with the deans of Georgetown, Stanford, and 
Yale Law Schools wrote a letter opposing that legislation. 
Could you tell me about that position and why you took it at 
that point?
    Ms. Kagan. Senator Durbin, I did write that letter and it 
was a letter that urged Congress to--really the principle point 
that were making in that letter was that the adjudications made 
by military commissions ought to be reviewed in Article 3 
courts. And as Senator Graham and I discussed earlier, Congress 
did indeed do exactly that, that the initial amendment was re-
crafted into the Graham-Kyl-Levin amendment, and it was really 
an extraordinary act of bipartisanship that occurred to--I 
think it was--the vote was 85:14.
    And one of the things that that piece of legislation did 
was exactly what--I'm not--I'm not remotely suggesting cause 
and effect, but the letter urged that there be Article 3 
review, and the Kyl-Graham-Levin amendment provided Article 3 
review of military commission determinations.
    Senator Durbin. I bring this up because it's come up during 
the course of this hearing, raised by Senator Kyl, and then in 
your discussion with Senator Graham. And there's one other 
element that should be mentioned. In Boumediene v. Bush, the 
Supreme Court agreed with your conclusion in that letter. It 
held that it violates the U.S. Constitution to deny Guantanamo 
detainees the right to habeas.
    Justice Kennedy wrote for the majority and said ``the laws 
and Constitution are designed to survive, and remain in force 
in extraordinary times.'' Justice Stevens was the fifth vote in 
the cases; no surprise, Chief Justice Roberts and Justice Alito 
dissented. So, even before the passage of this legislation by 
84:14, the Supreme Court had agreed with the conclusion in that 
letter that you sent, which I think is pretty good validation 
of the point that you were making.
    I'd like to ask about one other area that's come up here a 
couple of times. My friend Senator Cornyn has left, but I know 
that his position is shared by many others on the other side of 
the table, on this whole question that comes up at virtually 
every hearing about this notion of activism and the role of a 
judge and the Constitution, particularly a Supreme Court 
justice and the Constitution. And it strikes me, there's 
something missing in this conversation. This notion of a 
mechanical court and robot judges just doesn't seem to me to 
reflect the reality of our system of justice and our history on 
the court.
    I will acknowledge, and I certainly wouldn't question, 
Justice Cornyn's conclusion that he thinks Brown v. Board of 
Education had been well hidden in the Fourteenth Amendment for 
a long time and was discovered in 1954, that it really was the 
original intention. But for at least 60 years, or close to 60 
years, Plessy was the controlling case on this and said 
separate versus equal was acceptable in the United States when 
it came to our schools.
    I listened carefully to your answers, and it sounds as if 
you agree with the concept that we have to stick within the 
Constitution, but you understand that within that Constitution 
different conclusions could be reached. Certainly that's what 
Brown teaches us, that in that same Fourteenth Amendment they 
came to the opposite conclusion of Plessy. So can you--for my 
sake, could you clarify the questioning of Senator Cornyn in 
light of that precedential case in Brown?
    Ms. Kagan. Well, Senator Durbin, I think I guess I would 
like to make two points and insist that they're not 
inconsistent with each other. The first point is that judges 
are always constrained by law and that the only sources that 
judges can appropriately look to are legal sources, that judges 
can't import their own personal preferences or their political 
preferences or their moral values, that it would be 
inappropriate to do so. The role of a judge is to determine, as 
best that person can, what the law requires and then to do that 
thing. That's the first proposition.
    But the second proposition is that there are hard legal 
cases where people struggle with these issues, where people 
struggle with what the text, and the structure, and the history 
of the Constitution, and the precedents that apply that the 
Constitution requires in a given case. And--and that can happen 
in--in cases of the kind that you suggested in Brown, but it 
happens really all over the place. It happens--it happens not 
infrequently, I would say, at the Supreme Court level. Just 
because the Supreme Court is dealing with cases in which lower 
courts have disagreed, so usually the cases the Supreme Court 
hears are the hardest cases.
    Now, sometimes the lower courts disagree, and in fact the 
case is not so hard, the Supreme Court decides 9:0, and it's 
all easy. But there are some very difficult cases which involve 
clashes of constitutional principles.
    Senator Durbin. So if I could follow through on one that 
I've not been able to raise, and don't know how often it's come 
up here: the Griswold case. Griswold v. Connecticut, in the 
1960s, when the State of Connecticut was basically regulating 
the availability of family planning and birth control. This 
case challenged that law as to whether Connecticut had that 
right.
    Basically, the Supreme Court found a word in this 
Constitution which we can't find, privacy, and said that we 
have a right to privacy in our homes and families. Some who 
have analyzed it took a look at Justice Douglas' opinion, 
writing for the court. We're kind of stunned to see that he 
even went to the Third Amendment, to say that that guaranteed a 
right to privacy, the right to privacy in our homes. The Third 
Amendment talks about quartering soldiers, but he referred to 
it during the course of that opinion.
    So could you put that decision of Griswold and privacy in 
the context of this explanation you're giving me?
    Ms. Kagan. Well, Senator Durbin, I actually think that 
the--that Griswold and that the holding in Griswold does have 
grounding in the constitutional text, and the way most justices 
have thought about this is that the Fourteenth Amendment, the 
Due Process Clause of the Fourteenth Amendment guarantees 
liberty and that it guarantees--when it guarantees such liberty 
it means more than freedom from physical constraints, and it 
also guarantees more than procedural protections, that there is 
some substantive protection of liberty that's incorporated 
within the Fourteenth Amendment of the Constitution, and I 
think most justices on the Supreme Court believe that to be the 
case.
    Now, there are still very hard questions about what that 
liberty consists of. I think most justices of the Supreme Court 
do, at this point, fully accept the Griswold holding, which 
suggested that a couple's ability to use contraceptives ought 
to be up to that couple, that the government could not 
appropriately interfere with that decision, consistent with the 
Fourteenth Amendment's protection of liberty. But the Liberty 
Clause of the Fourteenth Amendment surely does give rise to 
some real disagreement in other cases, the extent to which that 
sphere extends. Those are one, but not the only kind of cases 
in which there are hard questions to be determined by the 
court.
    Just another very different kind of case which raised this 
to me recently--I mean, it shows the varying contexts in which 
these difficult questions involving constitutional principles 
can occur--is a case that I argued recently called Holder v. 
The Humanitarian Law Project, which involved this question of 
the application of the material support statute that Congress 
passed to combat terrorism as to certain kinds of expressive 
activities, certain kinds of--assistance to terrorist 
organizations that took the form of speech.
    And when I was arguing that case I was subject to 
questions, and the opposing lawyer also was subject to 
questions from all the justices, that all the justices clearly 
thought that this was an incredibly hard case because it 
involved very hard, but competing, legal values: the value of 
free speech on the one hand and the value, really, of 
protecting and defending our country on the other.
    And, you know, that's a case in which the--this clash of 
constitutional principles can occur, in which--in which 
reasonable judges could reasonably disagree about the results. 
So--so to say that something is law all the way down, which is 
absolutely the case, that it would be completely improper for a 
judge to import personal, or moral, or political preferences 
into the occasion. But that's not to say that law is robotic. 
It's not to say that everything is easy in the world of 
constitutional law, or indeed of statutory law.
    Senator Durbin. Thank you very much, Ms. Kagan.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you very much.
    Senator Coburn.
    Senator Coburn. Thank you. Am I next-to-last, Mr. Chairman, 
or last? What's our plans?
    Chairman Leahy. Well, let's see how we go.
    Senator Coburn. All right. Thank you.
    Well, it's been a long day for you. Thanks for being here.
    Chairman Leahy. And I'm concerned about the witness and her 
stamina. Mine is----
    Senator Coburn. Her reputation says she's tough as nails. 
She can make it.
    [Laughter.]
    Ms. Kagan. If you say so.
    Senator Coburn. First of all, you do get the Arthur Murray 
award. You are dancing a little bit, much to my chagrin. I 
would rather you not win. Maybe you should be on ``Dancing With 
the Stars'', or something. I want to go, first, to a couple of 
areas.
    One of the people that I respect most in the Senate is 
somebody that's a polar opposite of me. His name is Russ 
Feingold, and he unabashedly stands for his liberal positions, 
defends them, doesn't run away from them, talks about them, and 
stands up and beats his chest because he thinks he's right. And 
I've never walked away from my conservative positions. I don't 
apologize for my social conservativism or my fiscal 
conservatism.
    One of the things I told you, I want America to know who 
you are. You've kind of not allowed us--you know, I don't know 
what a liberal progressive is. I know what a liberal is, and I 
think you're a liberal. I think you're proud enough to defend 
that. And as Senator Graham said, there's nothing wrong with 
that.
    But the point is, is you have a very different belief 
system than most of the people who come from where I come from. 
And it's not wrong to have that belief system. It doesn't mean 
mine's right and yours is wrong. But it is wrong for us not to 
know what you believe about a lot of things. You're very pro-
Choice. You believe in a woman's right to choose. You believe 
in gender-mixed marriages, or gay marriage. You believe that 
States ought to recognize those throughout. If I say something 
that is inappropriate, please tell me.
    Ms. Kagan. Well, Senator Coburn, I suppose what I would 
want to say at this point is that the way I would vote as a 
legislator with respect to any or all of those issues is----
    Senator Coburn. I'm not trying to--I'm not trying to label 
as a judge. I'm just saying it's important. I'm not saying you 
are not going to have the capability to separate those 
positions. I'm not saying that. But it is important. I mean, 
you've told this Committee that you think it's--that there is 
appropriate time to use foreign law. You told this Committee 
that in your Solicitor General testimony in terms of answers to 
questions.
    Ms. Kagan. Can I interrupt you on that one, too?
    Senator Coburn. Well, I'll give you a chance.
    You're for--you--you--you have made statements for assisted 
suicide, in terms of that being an appropriate thing. So I'm 
not saying that that will limit your ability to make great 
decisions as a jurist, and I want to separate that right now. 
But I don't want us to--the American people have a right to 
know, what makes up Elena Kagan? There's all these other 
characteristics, too: smart as all get-out, super-accomplished, 
tough as nails.
    I believe you're tough as nails. I would not want to be a 
Supreme Court justice with you. I think I'd get run over. You 
know, I believe you have the intellect--superior intellect--and 
ability to reason, and I've listened to a lot of it here. But--
and again, there's nothing wrong. I love Ross Feingold to 
death, but we're totally different. That's one of the things 
that makes our country great. But it's not something that I--I 
don't want you to run away from that.
    That's who you are. That's what you--you've fought for a 
lot of causes in your life and--and those are a part of who you 
are. And a part of who you are will, in some small instances, 
influence your--I don't know one judge that can 100 percent 
separate themselves from who they are as they make a decision, 
and I don't think anybody knows a judge that can do that. So 
it's not unfair to say who you are. And it's not a slam at all, 
it's just, you're different than me and you're different than 
many of the people that I represent.
    So I wanted to established that and I wanted to give you a 
chance. If you want to say something in response to that, I'll 
be happy to give you that chance right now. But, you know, I'm 
a proud conservative. I'll fight anybody on the--you know, I'm 
for it. I'll debate anybody about what I believe and why I 
believe it, and I think you would do the same, and that's one 
of the reasons I have admiration for you.
    Do you have a comment about what I've said?
    Ms. Kagan. Well, I suppose a few comments, Senator Coburn. 
Let me take on just a couple of the particulars, and then maybe 
make a more general comment. You said, as Solicitor General, I 
advocated the use of--of foreign law in some circumstances. I 
do just want to make clear that what I said in those--those 
questions----
    Senator Coburn. Here's your quote exactly.
    Ms. Kagan--[continuing]. Was--was that, because there are 
justices on the Supreme Court who believe in the use of foreign 
law in some circumstances, that I would think it was 
appropriate, as an advocate, to argue from foreign law or to 
cite foreign law in any circumstance----
    Senator Coburn. Well, but that isn't what you said here.
    Ms. Kagan. Well, I think, Senator Coburn, with all respect, 
that if you look at the question and you look at the answer, I 
was speaking in my role as an advocate, saying that the primary 
consideration of an advocate is to count to five and to try to 
do the best the advocate can to ensure that the position that 
the advocate has taken will prevail.
    Senator Coburn. But it's not your position, because some 
other justices are using foreign law, you have the authority to 
do that as well.
    Ms. Kagan. As an advocate, to the extent that I think that 
foreign law arguments will help the government's case, then I 
will use those foreign law arguments, is what I----
    Senator Coburn. All right. Let me read something to you. As 
is obvious, I'm not a lawyer. OK. It's pretty obvious. But 
Article 3, Section 2 says this: ``The judicial power shall 
extend to all cases in law and equity arising under this 
Constitution, the laws of the United States, and the treaties 
made.''
    Nowhere--nowhere--in our Constitution does it give the 
authority for any judge, chief justice of the Supreme Court, 
any jurist on the Supreme Court, or any other court, to 
reference foreign law in determining the interpretation of what 
our statutes or our Constitution will be. So this is an area 
where we have grasp, where our judicial majority, much like the 
Israeli judge, we start reaching beyond the Constitution. You 
said it was all law. You said the determination will always be 
law. It's down to law, law, law, the earliest questions that 
you were asked in this hearing. Well, this is the founding 
document of what the law is. Nowhere that I can find, in this 
writing or in these guys' writing, says anything about using 
foreign law.
    So please explain to me why it's OK sometime to use foreign 
law to interpret our Constitution, our statutes, and our 
treaties.
    Ms. Kagan. Senator Coburn, I think for the most part I 
wouldn't try to convince you of that because I don't think that 
foreign law is appropriate as precedent or as an independent 
basis if support, you know, in the vast majority of legal 
questions. Now, I suggested to you a few that specifically 
might reference international considerations, such as, you 
know, the right to receive Ambassadors or something like that. 
Even there, I think the citations would not be a precedent. 
They would not have binding weight of any kind. But they might 
be relevant to interpretation of----
    Senator Coburn. Relevance is about getting knowledge and 
gaining knowledge, but you have a different guide. The oath 
that you'll take as a justice of the Supreme Court is to uphold 
the Constitution and our statutes.
    Ms. Kagan. Well, I think I agree with you on that, 
Justice--Senator Coburn.
    [Laughter.]
    Senator Coburn. Don't worry, I will never get there.
    [Laughter.]
    Senator Coburn. All right. Let me move on then, if I--if I 
may, if I can keep playing.
    One of the things that you said today really concerned me, 
and let's see if I've got the--you were being asked a question. 
You said, ``But in other cases, original intent is unlikely to 
solve the question, and that might be because the original 
intent is unknowable or might be because we live in a world 
that's very different from the world in which the Framers 
lived. In many circumstances, precedent is the most important 
thing.'' Is this precedent more important than original intent?
    Ms. Kagan. Well, Senator Coburn, let me give you an 
example. I'm not sure if it was an example I used before or 
not, but in the First Amendment context, which is a context 
I've--I've--I've written about a good deal, it's fairly clear 
that the First Amendment doctrine that's been established over 
100 years departs significantly from the original intent of the 
Framers. And here's one example, is that I think that the 
Framers would never have dreamed that the First Amendment would 
in any way protect people against libel suits, that the First 
Amendment had anything to do with libel.
    So when the court said, in New York Times v. Sullivan, that 
a public figure could not sue the New York Times and claim 
damages for libel without meeting a very high bar, without 
meeting the so called ``actual malice'' standard, I think that 
was something that the Framers would not have understood.
    Senator Coburn. Why don't you think they wouldn't have 
understood that? I mean----
    Ms. Kagan. Well, I think that their----
    Senator Coburn. I mean, they had--they had print back then. 
I mean, we didn't start that early in terms of formation of our 
country.
    Ms. Kagan. I think the--I'm sorry for interrupting. I think 
that the historic evidence is very clear that the Framers 
didn't think that the First Amendment at all interfered with 
libel suits. Now, over time, as--as--as courts have applied the 
First Amendment to different contexts, to different 
circumstances, have seen different factual problems, have had 
to consider different cases, I think that the court sensibly 
thought that the principles that are embodied in the First 
Amendment could not be protected unless the decision in New 
York Times v. Sullivan was issued, unless the----
    Senator Coburn. So--so let me go forward with that. Who can 
change precedent?
    Ms. Kagan. Well----
    Senator Coburn. Let's have a little law lesson here. Who 
can change precedent?
    Ms. Kagan. Well, the court can, but it's a very high bar.
    Senator Coburn. OK. I know, but they can, right?
    Ms. Kagan. It--the court can change, can overturn a ruling, 
but it's a very high bar. The precedent----
    Senator Coburn. What does the high bar mean to the average 
person watching this hearing today?
    Ms. Kagan. Well, that--that--that it has to be a very 
extraordinary circumstance or a very unusual circumstance for a 
court to overturn a precedent, and the usual circumstances that 
are mentioned are where the precedent has become completely 
unworkable, where it's clear that the precedent just is 
producing massively inconsistent results or----
    Senator Coburn. So, for example, Brown v. Board of 
Education. That upset precedent, Plessy v. Ferguson, on its 
ear, didn't it?
    Ms. Kagan. It did, Senator Coburn. I think that----
    Senator Coburn. So what was the purpose in changing the 
precedent?
    Ms. Kagan. You know----
    Senator Coburn. Was it to change Plessy v. Ferguson or was 
it to go back to original intent? That's--that's--that's why 
I'm having trouble with what you said, because, you know, I 
know our Framers weren't perfect, but I think their motivations 
were really pure. And for us to have a justice that says 
precedent is more important than original intent is going to 
give a lot of people in this country heartburn, because what it 
says is our intellectual capabilities are better than what our 
original founding documents were, and so we're so much smarter 
as we've matured that they couldn't have been right. That's 
dangerous territory for confidence in the court.
    Ms. Kagan. Senator Coburn, I think what I'm trying to say 
is that courts appropriately look to both kinds, both keys to 
constitutional interpretation, that courts appropriately look 
to original intent, that courts appropriately look to 
precedent, and that it depends on the provision of the 
Constitution, it depends on the case, it depends on the issue 
as to whether--which--as to which one of those is most helpful, 
and that it's a pragmatic approach, looking case by case, to 
try to figure that question out.
    And I think what I'm saying--I would say two things about 
it: it's both extremely descriptive of what the court has done, 
that the court in----
    Senator Coburn. Historically speaking.
    Ms. Kagan. Historically speaking and currently. The second 
point I would make is that, in fact, when the chief justice was 
sitting here, Chief Justice Roberts, he stated the same thing, 
the same principle that I'm trying to state, is that one should 
approach the question of constitutional interpretation 
pragmatically, without a single, over-arching theory, without 
something that says you always look to the specific original 
intent, or you always look to something else, that sometimes 
the original intent controls and other times it may be 
unknowable or it may be far removed from the current problems 
we face.
    Senator Coburn. But that's a--but that's a judgmental 
decision, correct? You're going to--you're going to make a 
judgment about whether original intent doesn't apply or is 
unknowable, and what may seem to be unknowable to you may seem 
to be knowable to another judge. Correct?
    Ms. Kagan. Senator Coburn, I don't disagree with you that 
judging requires judgment.
    Senator Coburn. Yes.
    Ms. Kagan. And----
    Senator Coburn. Well, that's the whole basis of why we're 
having this hearing, is where's the judgment going to come 
from, because it takes me to the next thing that you said that 
I have heartburn with. ``I have great difficulty in the ability 
to take off my advocate hat and put on my judge's hat.'' And my 
question to you is, I would have the same problem. I will tell 
you, how are you going to take off your political hat?
    What are the processes with which Elena Kagan is going to 
take off this advocacy of a liberal position in this country as 
she becomes a justice of the Supreme Court so that that 
advocacy hat is gone and only the judgment hat is left? How are 
you going to do that? You've already admitted you're going to--
you have trouble doing that now just from a Solicitor General 
standpoint.
    Ms. Kagan. Senator Coburn, my--the advocate's hat that I 
was referring to was not a political hat, it was the hat that I 
wear as Solicitor General of the United States, representing 
the interests of the United States. That has nothing to do with 
my own political views. It has to do with a long and historic 
tradition that the Solicitor General's Office has of 
representing the long-term interests of the U.S. Government.
    Senator Coburn. Then let's move back to your political hat. 
How are you going to take that off?
    Ms. Kagan. Senator Coburn, that hat has not been on for 
many years.
    [Laughter.]
    Ms. Kagan. Senator Coburn, I know that, you know, some 
people have said, oh, she's a political person. I've had a 25-
year career in the law. Of that 25-year career, 4 were spent in 
the Clinton White House. This was a period of time that I am 
proud of and that I feel as though, you know, I helped to serve 
the American people for President Clinton.
    But this is by no means the major part of my legal career. 
The major part of my legal career has been as a scholar and 
teacher of constitutional and administrative law, has been, you 
know, teaching, by this point, many thousands of students, has 
been writing about constitutional and administrative law 
issues.
    Senator Coburn. Let me ask you another question, then, on 
it. This is to inquire--this is softball. OK. What do you say--
--
    Ms. Kagan. You promise?
    Senator Coburn. I promise.
    [Laughter.]
    Ms. Kagan. Because it's getting late.
    Senator Coburn. I told you, you're terrific. What do you 
say to people who are worried that your political positions 
would influence your judicial opinions? What do you say to the 
average American that's sitting here watching this right now? 
What assurance, other than knowing Elena Kagan, that we know 
who you are, we've met you, we've read about you, both positive 
and negative? What are the assurances that you would tell the 
American people, that you can trust me to make a pure jurist 
decision, that I'm not going to be biased? What is it that you 
would tell them?
    Ms. Kagan. Well, I hope that they would listen to this 
hearing and come away with that view, come away with a person 
who believes that it's--it's all about law when you put on a 
judge's robe. It's not about politics, it's not about policy, 
it's all about law and making your best judgments about what 
the law require.
    And that is the pledge that I said was the only pledge that 
I would make yesterday and--and--and I'll make it again now. 
But I think it's consistent with--with--with the way I've 
approached my life, in a fashion that respects the rule of law, 
in a fashion that's temperate and respectful of other people's 
views, and, you know, with respect, which I don't think is 
partisan in the kinds of ways that a few people have suggested.
    Senator Coburn. You can understand why some of us, when 
Justice Sotomayer told us--I mean, her words were, ``I think I 
agree with you, Senator Coburn, we shouldn't use foreign law,'' 
and then in one of her opinions she's embracing the use of 
foreign law in a decision. You know, we become skeptical 
because--and as I said earlier and as I said on the floor 
speech about these hearings, is, you know, it really isn't 
going to matter what you said, because once you're there you're 
there and we have very little ability to change it.
    So when we see histories and then we see statements that 
don't coincide, and quite frankly, you haven't done that to us 
that I know of yet today, but you can understand the skepticism 
we might have, and especially in the fact that many on the 
other side of the aisle, the implication has been that the same 
thing by Aleto and Roberts, that they weren't straightforward, 
that in fact they didn't keep their word on stare decisis.
    So you understand what we're battling with, and that's why 
I'm not even sure the hearings are a great thing. I think we 
ought to do it the way we used to do it, is sit down and talk 
and spend a lot of time with you and get a comfort level to 
where we feel like we really get to know you and what you 
believe and what your actions will be.
    Let me go to one other thing. Senator Cornyn attempted to 
ask this, and I think it's a really important question. If I 
wanted to sponsor a bill and it said, Americans, you have to 
eat three vegetables and three fruits every day, and I got it 
through Congress and it's now the law of the land, you've got 
to do it, does that violate the Commerce Clause?
    Ms. Kagan. Sounds like a dumb law.
    [Laughter.]
    Senator Coburn. Yes. I've got one that's real similar to it 
I think it equally dumb. I'm not going to mention which it is.
    Ms. Kagan. But I think the question of whether it's a dumb 
law is different from whether the question of whether it's 
constitutional, and--and--and I think that courts would be 
wrong to strike down laws that they think are--are senseless 
just because they're senseless.
    Senator Coburn. Well, I guess the question I'm asking you 
is, do we have the power to tell people what they have to eat 
every day?
    Ms. Kagan. Senator Coburn, I think----
    Senator Coburn. I mean, what is the extent of the Commerce 
Clause? We have this wide embrace of the Commerce Clause, which 
these guys who wrote this never, ever fathomed we would be so 
stupid to take our liberties away by expanding the Commerce 
Clause this way. Matter of fact, let me spend just--I've got a 
little time. Let me just read you what they said, because they 
actually said if the executive branch and the judiciary branch 
wouldn't enforce their limited view of the Commerce Clause, 
that in fact we needed to change the Members of the Congress so 
that they would. And let me read it to you: ``If it be asked, 
what is to be the consequence of the----''
    Ms. Kagan. I'm sorry, Senator. Where is this from that 
you're reading? I'm sorry.
    Senator Coburn. This is the Federalist Papers.
    Ms. Kagan. OK.
    Senator Coburn. OK. This is number 44. I presume you've 
read this book?
    Ms. Kagan. I have.
    Senator Coburn. I thought you might have.
    Ms. Kagan. It's a great book.
    Senator Coburn. It is. Actually, I hope you'll read it a 
lot as a justice, if you become one. ``Constitution exercise 
powers not warranted by its true meaning.'' They're sitting 
there warning us to not do things. ``What are you going to do 
about it? And I answer, the same as if they should misconstrue 
or enlarge any other power vested in them as if the general 
power had been reduced to particulars and any one of these were 
to be violated. The same, in short, as if the State legislature 
should violate their respective constitutional authorities. In 
the first instance, the success of the usurptation will depend 
on the executive and judiciary departments.'' In other words, 
you become complicit in not slamming it down and saying, 
Congress, you're going the wrong way.
    I would make the case today that we find ourselves in 
trouble as a Nation because the judiciary and the executive 
branch has not slapped Congress down on the massive expansion 
of the Commerce Clause. ``Which are to expound and give effect 
to the legislative acts, and in the last resort a remedy must 
be obtained from the people, who can, by the election of more 
faithful representatives, annul the act of the usurpers.''
    So I go back to my original question to you: is it within 
the Constitution for me to write a bill, having been duly 
elected by the people of Oklahoma, to say, and get it signed by 
the President, that you have to eat three fruits and three 
vegetables every day?
    Ms. Kagan. Well, Senator, first, let me say about the 
Federalist Paper quote that you read, that it is absolutely the 
case that the judiciary's job is to, you know, in Marbury v. 
Madison's famous phrase, to say what the law is and to make 
sure--I think I've--I've talked about it as policing the 
constitutional boundaries as--and making sure that Congress 
doesn't go further than the Constitution says it can go. It 
doesn't violate individual rights and also doesn't act outside 
its enumerated authorities. We live in a--in a--in a government 
in which Congress--Congress' authorities are enumerated in 
Article 1 of the Constitution, and Congress can't act except 
under one of those heads of authority.
    Now, as I talked about with Senator Cornyn, the Commerce 
Clause has been interpreted broadly. It's been interpreted to 
apply to regulation of any instruments or instrumentalities or 
channels of commerce, but it's also been applied to anything 
that would substantially affect interstate commerce.
    It has not been applied to non-economic activities, and 
that's the teaching of Lopez and Morrison, that the court--that 
the Congress can't regulate non-economic activities, especially 
to the extent that those activities have traditionally been 
regulated by the States, and I think that that would be the 
question that the court would ask with respect to any case of 
this kind.
    But--but I do want to sort of say again, you know, we can 
come up with sort of, you know, just ridiculous-sounding laws, 
and the--and the--and the principle protector against bad laws 
is the political branches themselves. And I would go back, I 
think, to Oliver Wendell Holmes on this. He was this judge who 
lived, you know, in the--in the early 20th century. Hated a lot 
of the legislation that was being enacted during those--those 
years, but insisted that if the--if the people wanted it, it 
was their right to go hang themselves.
    Senator Coburn. OK.
    Ms. Kagan. Now, that's not always the case, but--but--but 
there is substantial deference due to political----
    Senator Coburn. I'm running out of time. I want to give you 
another condition. What if I said that eating three fruits and 
three vegetables a day would cut health care costs 20 percent? 
Now we're into commerce. And since the government pays 65 
percent of all the health care costs, why isn't that 
constitutional?
    Ms. Kagan. Well, Senator Coburn, I--I feel as though the 
principles that I've given you are the principles that the 
court should apply with----
    Senator Coburn. Well, I have a little problem with that 
because if we're going to hang ourselves, as our founders--
three of the critical authors of our Constitution thought the 
judiciary had a--had a reason to smack us down. And as Oliver 
Wendell Holmes, if we want to be doing stupid stuff we can do 
stupid stuff. I disagree.
    I think--you know, and that's not activism, that's looking 
at the Constitution and saying, well, we're going to ignore it 
even if it does expand the Commerce Clause, because the 
Commerce Clause is what has gotten us into a place where we'll 
have a $1.6 trillion deficit that our kids' future has been 
mortgaged, that we may never recover from. That's not an 
understatement at all. In 25 years, each of our kids are going 
to owe $1.113 million and pay interest on that before they do 
anything for themselves or their kids.
    So the fact is that we have this expansive clause and we 
have to have some limit on it. And if the courts aren't going 
to limit it within the original intent, instead of continuing 
to rely on precedent of this vast expansion of it, the only 
hope is, is that we have to throw out most of the Congress.
    But the point is, the original intent is that you wouldn't 
ignore their original intent. What we found ourselves today on 
the Commerce Clause is that, through a period of precedent-
setting decisions, we have allowed the Federal Government to 
become something that it was never entitled to become, and with 
that a diminishment of the liberties of the people of this 
country, both financially and in terms of their own liberty.
    Ms. Kagan. Well, Senator Coburn, I--I guess, a few points. 
The first, is I think that there are limits on the Commerce 
Clause of the ones I suggested, which are the ones that are 
articulated, were articulated by the court in Morrison and in 
Lopez, which are primarily about non-economic activity and 
Congress not being able to regulate non-economic activity.
    I guess the second point I would make, is I do think that 
very early in our history, and especially I would look to 
Gibbons v. Ogden, where Chief Justice Marshall did, in the 
first case about these issues, essentially read that clause 
broadly and provide real deference to legislatures and provide 
real deference to Congress about the scope of that clause. Not 
that the clause doesn't have any limits, but that deference 
should be provided to Congress with respect to matters 
affecting interstate commerce.
    And I guess the third point is just to say that I think the 
reason for that is--is that $1.6 trillion deficit may be an 
enormous problem. It may be an enormous problem, but I don't 
think it's a problem for courts to solve. I think it's a 
problem for the political process to solve.
    Senator Coburn. You missed my whole point. We're here 
because the courts didn't do their job in limiting our ability 
to go outside of original intent on what the Commerce Clause 
was supposed to be. Sure, you can't solve the problem now, but 
you help create it as a court because you allowed something 
other than what our original founders thought was a legitimate 
role for the Federal Government.
    Chairman Leahy. If the--if the----
    Senator Coburn. I thank the Chairman. I will yield back and 
I'll follow up on the next round.
    Chairman Leahy. You will yield back. Your time is up. I 
didn't know if you wanted to respond to that.
    Did you want to take a break before we go to some of the 
others, or----
    Ms. Kagan. Some of the others?
    [Laughter.]
    If it is some of the others, I definitely want to take a 
break. If it is one of the others, we can do that.
    Chairman Leahy. I'll tell you what, let's go one of the 
others and see where we stand after that. Senator Cardin. 
You're doing such a great job, we don't want you to leave.
    [Laughter.]
    Senator Cardin. Solicitor General Kagan, I'm one of the 
others. Let me welcome you to the Committee.
    I have been amazed and disappointed as to how the brilliant 
trail-blazing legal career of Thurgood Marshall has been 
portrayed by several of my colleagues. Justice Marshall came 
from Baltimore, Maryland, the city where I was born, in the 
State of Maryland that I have the honor of representing in the 
U.S. Senate. Justice Marshall was one of the great Americans 
that have come from Maryland. We are very proud of what he's 
meant to this country.
    It's interesting that this week on July 2nd we'll celebrate 
his 92nd birthday. And I must tell you, we've had a great deal 
of discussion about background. As you know Justice Marshall 
was the great grandson of a slave. And he grew up in a 
segregated country.
    I talked during my opening statements about how I remember 
attending segregated public schools in Baltimore City. I also 
remember swimming pools and theaters and amusement parks that 
were restricted as to who could attend, who could be there. So 
we talk a lot about empathy, we talk a lot about background, we 
talk about how important that is, but on behalf of the millions 
of Americans who have benefited from Thurgood Marshall's public 
service, I'm glad he brought his real world experiences to 
public service. He helped make a more perfect union and made a 
real difference in the lives of Americans.
    I agree with the NAACP Legal Defense Fund in their release 
where they say, simply put, Thurgood Marshall helped make our 
union more perfect. And the legacy illuminates the highest 
possibilities for all Americans, yesterday, today and tomorrow.
    Yesterday I talked about how we can assure that the public 
understands how important the decisions of the Supreme Court 
are in their lives. And how I want American citizens to 
understand just how important your role will be on the Supreme 
Court of the United States. I just one more time express this 
concern about following legal precedent and activism. I 
listened to Senator Coburn and I must tell you, I think his 
definition of original intent reminds me of some of my 
colleagues' definition of activism. They use it for a 
particular purpose. Judicial activism is OK if you agree with 
the results. And I think it's the same thing with original 
intent. It's OK if that's the result that you want.
    But I want a Justice who is going to follow legal 
precedent. I want a Justice who believes that it's up to 
Congress to legislate, not the courts. I want a Justice that is 
going to follow in the best traditions of protecting 
individuals against the abuses of government and special 
corporate interests. That's what I'm looking for.
    It's very difficult for us to legislate--to pass 
legislation to expand rights. It's extremely frustrating when 
we finally get it done and then see the courts reverse legal 
precedent, reverse our Congressional intent and take away those 
rights that affect people of our nation.
    So, when we look at our Constitution and when it was 
created, citizens were defined very differently than they are 
today. Women and African-Americans were excluded from the 
definition of ``we the people.'' But the real triumph of our 
Constitution is that we've overcome these faults.
    Chief Justice Roberts said, ``I think the Framers, when 
they used broad language like `liberty', like `due process', 
like `unreasonable' with respect to search and seizures, they 
were crafting a document that they intended to apply in a 
meaningful way down through the ages.'' This is the same point 
that you have raised before this Committee about how times 
change and how does the Constitution apply to current 
circumstances.
    The strength of our Constitution and the Supreme Court is 
that it advances rights envisioned by the Framers to current 
times.
    Now, it's been a bumpy road on Civil Rights. We've made 
progress and we have moved in the wrong direction. We've talked 
a lot about Plessy v. Ferguson. It might have been a pragmatic 
decision by the Court in its time, but it was fundamentally 
flawed. There is nothing equal by separate and we know that 
today.
    Then came Brown v. Board of Education, one of the proudest 
moments in the history of the Supreme Court and indeed one of 
the proudest moments in the history of the United States. The 
Supreme Court decision had real impact on real people's lives.
    Your opening statement gives me comfort that you will 
follow in the best traditions of the Supreme Court in meeting 
the challenges of change. You talked about a fair shake for 
every American. I'm going to mention that a couple times during 
our questioning. You also talked about the Supreme Court, of 
course, which has the responsibility of ensuring that our 
government never oversteps its proper bounds or violates the 
rights of individuals. The fundamental opportunities of America 
depend upon those goals. Your grandparents and mine came to 
this country because of the opportunities this country 
enshrined in our Constitution.
    In preparation for this hearing I came across a Supreme 
Court case involving educational opportunity that you happened 
to be the clerk for the Justice who wrote the dissenting 
opinion, Justice Marshall. In Kadrmas v. Dickinson Public 
Schools, Justice Marshall said--and I'm quoting, ``Today the 
Court continues to retreat from the promise of equal 
educational opportunity by holding that a school district's 
refusal to allow an indigent child who lives 16 miles from the 
nearest school to use a school bus without paying a fee does 
not violate the Fourteenth Amendment's equal protection 
clause.''
    Now, I mention that because I think Justice Marshall was 
looking at factual circumstances that were not present 10, 15, 
20 years ago. But he was trying to use current circumstances 
under our law to advance what we all believe was the Framers' 
intent of ``we the people.'' How do you believe the Framers 
intended the Constitution to provide for the protection of 
people against abuses of government or special corporate 
interests?
    Ms. Kagan. Well, Senator Cardin, I think that the 
Constitution is a kind of genius document in that while certain 
of its provisions are quite specific and, you know, it just 
doesn't matter how times and circumstances change. We still 
have a Senate and we still have a House of Representatives and 
they're still elected the same way and all manner of things 
like that that the Framers and then in subsequent amendments 
and especially with respect to the Civil War amendments, the 
Fourteenth--Thirteenth and Fourteenth and Fifteenth Amendments 
wrote some provisions broadly, generally. And this goes back to 
what Chief Justice Roberts said in that quote that you 
mentioned.
    And I think actually if I remember it correctly, Chief 
Justice Roberts said, ``it would be wrong to give general 
provisions a crabbed interpretation.'' That the point of these 
general provisions is to ensure that the principles that the 
Framers held so dear or that the ratifiers of the Fourteenth 
Amendment held so dear, that those principles would continue to 
apply throughout the ages for our posterity.
    And that's so with respect to, you know, a number of ways 
in which the government can deprive people of equal protection 
of the laws or violate people's liberty.
    Senator Cardin. Well, I agree with that comment. Last year 
the Supreme Court chipped away at the existing precedent in 
Brown v. Board of Education. So these are real concerns. I 
think the Framers of our Constitution would have been proud of 
Brown v. Board of Education even though at that time, as you 
know, African-Americans were not included in the Constitution 
in the full sense. But in that case of Parents v. Seattle 
School District, the Court held that voluntary integration 
programs were unconstitutional. Chipping away at Brown v. Board 
of Education, Justice Breyer writing the dissent said, ``what 
has happened to stare decisis? .''
    I noted Senator Cornyn talked about following legal 
precedent. Well, Justice Breyer was concerned about that. He 
said, ``to invalidate the plans under review is to threaten the 
promise of Brown. The plurality position, I fear, would break 
that promise. This is a decision that the Court and nation will 
come to regret.''
    Do you believe that decisions like Brown v. Board of 
Education are still relevant today, and are precedent for the 
Court to carry out what that Court did in advancing we the 
people for all?
    Ms. Kagan. Senator, I hope and I know that Brown v. Board 
of Education and the principles that Brown v. Board of 
Education set forth are still relevant today and they're the 
principles that the Equal Protection Clause has set forth. And 
the idea of equality under law is a fundamental American ideal, 
a fundamental American value or fundamental American 
constitutional value. And one of the Court's most important 
missions is to ensure that that value remains strong over time.
    Senator Cardin. Well, let me move on from education to 
voting rights on the Civil Rights agenda. It took a long time. 
A lot of people worked hard, people gave up their lives in 
order that we have the right to vote and expanded the right to 
vote. It took constitutional amendments and even the Civil 
Rights Act of 1964 failed to address the hurdles that people 
used to exclude black voters and poor white voters, but 
Congress passed the Voting Rights Act of 1965. So it was 
difficult for us to expand voting rights. And we have 
challenges today as to whether we can do what we have done.
    There was just recently a Supreme Court decision of 
Northwest Austin Mud that didn't directly deal with the issue 
of whether Congress has the right to continue the covered 
jurisdictions with preclearance. But it raises the question as 
to whether Congress has the constitutional power to protect 
minority voting rights.
    So my question to you is, you have said several times 
without reference to this specific issue, that you will give 
due deference to Congress. I want to put it in context to where 
we believe there is need to expand protection under our 
Constitution. And will you give due deference to Congressional 
actions where Congress is pretty clear. This is not where 
Congress is saying X, and you know what X, this is not 
substituting a Y for an X, which I heard you say you don't 
believe is right. Will you give due deference to Congress where 
we are expanding protections under the Constitution?
    Ms. Kagan. Senator Cardin, you raised the question of the 
scope of Congress's Section 5 power; Section 5 of the 
Fourteenth Amendment which gives Congress the ability to 
enforcement the Fourteenth Amendment. And the scope of that 
power has been an issue in several recent cases. In the case of 
Bernie, which I believe Senator Specter referred to earlier, 
the Court said that it wanted to distinguish between Congress's 
ability to enforce--to remedy Fourteenth Amendment violations 
and also to prevent Fourteenth Amendment violations on the one 
hand, which was appropriate, and on the other hand what the 
Court found in Bernie was not appropriate, was that Court 
acting under that Section Five power to change that 
constitutional rights that had been found by the Court. So 
that's the line that the Court has developed in Bernie and 
subsequent cases which is, Congress clearly has the authority 
to remedy and to prevent Fourteenth Amendment violations, but 
doesn't have the authority essentially on its own to change the 
meaning of the Fourteenth Amendment.
    Senator Cardin. And I understand the point that was before 
the Court. I guess my point is that voting restrictions today 
still exist. And we who are involved in the political system 
understand that directly.
    Ms. Kagan. And I should say, of course, the Fifteenth 
Amendment has its own enforcement provision and the Voting 
Rights Act was passed under that enforcement provision. I think 
it's undeniable that the Voting Rights Act has been a major 
historic achievement for this nation.
    There, of course, may be a case that will come before the 
Court on the question of the constitutionality of certain 
provisions or the Voting Rights Act generally. That case--that 
issue was potentially before the Court last year. The Court did 
avoid it and resolved the case on statutory grounds. It was a 
case that the Solicitor General's Office filed a brief on in 
strong support of the Voting Rights Act. But it's not likely to 
be the last time that the Court will consider those issues. And 
Congress clearly has an important role in this area and the 
exact scope of that role is going to be addressed in future 
cases.
    Senator Cardin. Thank you for that response. I find that 
comforting. I'd just point out that we live through the 
election procedures and we see obstacles in the way of voters. 
And my own election in 2006, it was undeniable that the lines 
in the predominantly African American voting places were three, 
four, five times as long as other communities. That there was 
targeted information sent out to tell voters in minority 
districts to vote on Wednesday rather than Tuesday. There were 
direct efforts made to diminish minority voting. It exists 
today. And Congress is trying to take action in this area. I 
just urge you, because voting is so fundamental to our system, 
that when Congress acts to try to expand rights, the statements 
you've made about deference to the Congressional branch, I 
think are particularly important.
    Let me move to--I just want to cover very quickly because I 
know Citizens United has been covered over and over again here. 
But to me it's a fundamental question because voting doesn't 
mean much unless you have fair and open elections. And 
President Lincoln said, over 100 years ago, ``I see in the near 
future a crisis approaching that unnerves me. It causes me to 
tremble for the safety of my country. Corporations have been 
enthroned and an era of corruption in high places will follow. 
And the money power of the country will endeavor to prolong its 
reign by working upon the prejudices of people until the wealth 
is aggregated in a few hands and the republic is destroyed.''
    So I do worry about the impact of corporate contributions 
to the integrity of our election system. I chair the Helsinki 
Commission which monitors human rights internationally. One of 
our principal objectives is to make sure we have free and fair 
elections in Europe, North America, and Central Asia, while my 
colleagues are now monitoring U.S. elections. They want to make 
sure, as we have signed on to the accords, that our elections 
are free and fair. My point is that Citizens United to many of 
us is a step backwards. And once again Congress has acted in 
this area and there's legal precedent. And I know this is a 
case that's already been decided and we're taking action, but I 
just want to weigh in to say that I think it's critically 
important that we--that you follow, when you can, legal 
precedent and Congressional dictate.
    Let me just change to a different subject that is on 
everyone's mind today and that's what's happening in the Gulf 
of Mexico. As a Senator from a coastal state of Maryland, I am 
deeply concerned about the damages that have been caused to our 
environment, to business, individuals, the loss of life in the 
Gulf of Mexico. Congress has passed environmental laws. Again, 
they weren't easy. We passed the Clean Air Act, the Clean Water 
Act, the National Environmental Policy Act, the Endangered 
Species Act, the Safe Drinking Water Act, and SuperFund.
    Senator Feinstein questioned you as to the legislative 
intent to have certain areas covered in our wetlands, in which 
the Rapanos Supreme Court case was a huge step backwards, 
again, rejecting Congressional intent.
    Then in Exxon v. Baker we saw a restriction on the full 
coverage of damages in the Exxon Valdez matter. In my view the 
Court has weakened environmental protections that were hard 
fought here in Congress.
    Do you agree that the Federal Government working with the 
states has a unique role in protecting our environment and that 
the government must hold public lands and waters in trust for 
future generations? And will you give deference to Congress as 
we attempt to carry out that mandate?
    Ms. Kagan. Well, Congress certainly has as broad authority 
under the Constitution to enact legislation involving 
protection of the environment. And I think that when Congress 
enacts such legislation the job of the Courts is to construe it 
consistent with Congressional intent.
    Senator Cardin. Thank you. I also want to cover some 
employment cases because I think, again, we're seeing a 
chipping away of the rights. A couple of my colleagues have 
talked about the Gross case which the Court rejected the long-
standing tests to deal with age discrimination in the 
workplace. I could also talk about the Ledbetter case in which 
the Court on gender discrimination took the test, which I find 
incredible to believe, that Lilly Ledbetter was supposed to 
know about her discrimination even though it was impossible to 
discover it and she was barred by Statute of Limitations.
    Now, we've corrected the Lilly Ledbetter case by further 
Congressional action. But you talk about how we can make sure 
that every American gets a fair shake. How do I explain to a 
50-some year old woman with a couple children who is fired 
after 25 years in the workforce because the employer wants to 
hire someone half her age and pay one-third the salary? How is 
she getting a fair shake when the Supreme Court changes the 
tests in order to avoid the current protections we thought we 
had in law against age discrimination?
    Ms. Kagan. Well, Senator Cardin, I've pretty consistently 
said that I don't want to, you know, grade, or give a thumbs-up 
or a thumbs-down on particular Supreme Court cases. I do think 
that with respect to any statute, discrimination statutes, or 
any other, that the job of the Court is to construe the 
legislation as Congress meant for the legislation to be 
construed. And that's difficult sometimes, but that's the goal 
is to make sure that the Court is not doing, you know, deciding 
a case in a way in which, you know, it would like the statute 
to read, that the Court is deciding the case according to the 
way Congress wanted the statute to be applied.
    Senator Cardin. Well, thank you. I think that was a pretty 
complete answer. And, by the way, I just really want to thank 
you for the complete answers you're giving us. In response to 
Senator Graham, you gave us high grade, I want to give you high 
grades on being responsive to the questions. I think you've 
been very direct where you can be and I thank you for that 
openness to the committee.
    I want to cover one other area of inclusion on ``we the 
people'' including all. Right now in 30 states an individual 
can still be fired for their sexual orientation where he or she 
has no recourse. An alarming 39 percent of the self-identified 
LGBT workers in American have reported some form of workplace 
harassment or discrimination. And yet they have no legal 
recourse in nearly two-thirds of our states. This is contrary 
to the legal expectation of fairness, or as you say, a fair 
shake for all Americans. And Congress has an obligation to stop 
this discrimination.
    The state of Maryland has taken action and I congratulate 
our legislature and Governor for acting in this area. We have a 
similar effort pending in the Congress of the United States and 
it has the support of 202 cosponsors in the House of 
Representatives and 45 cosponsors in the Senate and I'm proud 
to be an original cosponsor that would provide protection in 
the workplace for LGBT.
    My reason for bringing this up is that we expect to pass 
this bill. It's not going to be easy, but we expect to get this 
protection passed. I am certain there will be a legal 
challenge. We usually find that the case. Once, again, do you 
believe that to clarify the definition of ``we the people'' so 
that all Americans are included in that and have protection of 
law and, again, will you give deference to Congress as we try 
to create a more perfect union?
    Ms. Kagan. Well, the policy decision, Senator Cardin, is up 
to Congress. And the questions that might come before the Court 
are questions if they're statutory in nature, they would be 
appropriately addressed by the Court asking what Congress 
intended.
    Senator Cardin. Thank you. I wanted to save about 5 minutes 
at the end for somewhat easier rounds of questions so you can 
catch your breath a little bit. You've been going all day. So I 
want to talk about pro bono.
    And I want to congratulate you for your work at Harvard in 
expanding clinical experiences for your students. But I want to 
tell you the challenges that we have. According to recent Legal 
Service Corporation studies, each legal aid attorney serves 
over 6,800 people. There is one private attorney for every 525 
people in the nation. This is not equal justice under the law.
    Recent studies have shown that for every person who 
receives free legal assistance at least one person is turned 
away due to lack of resources at the agencies. And this has 
only gotten worse as our economy has gotten worse. Many of the 
resources which legal aide bureaus depend upon are the IOLTA 
funds which, as you know, have become much more difficult for 
legal service agencies to get. So unfortunately today many low-
income individuals are denied the opportunity for legal 
services, which is hardly equal justice under the law, which is 
what I think we all want to achieve.
    And the type of cases they handle are like pregnant women 
who are being battered by their husbands, helping homeowners 
facing foreclosure by allowing them to stay in their homes, 
helping employees who are discriminated against in the 
workplace due to race or gender or religious preference, 
helping people with disabilities and those types of cases.
    During my years I chaired the Maryland Legal Services 
Corporation and I helped to establish the clinical programs at 
Maryland Law School which I found to be very helpful in 
training new lawyers who are sensitive to public service but 
also providing a great deal of services for people who needed 
help. So now looking around the country, 36 law schools have 
pro bono or public service requirements.
    As Dean Kagan, I know that you instituted major 
improvements of expansion in the law school clinics while at 
Harvard. Harvard law students must perform at least 40 hours of 
law-related public interest work including working on behalf of 
people who cannot afford to pay for legal services. Can you 
tell us just briefly a little bit about your experiences at 
Harvard Law School to expand the number of students 
participating in clinical programs and what impact that had on 
providing help to people who otherwise would not have received 
adequate representation?
    Ms. Kagan. Senator Cardin, this is one of the things I 
worked hardest on at Harvard along with a great many other 
people. And I think we had some significant successes which is 
good because the need is so vast in this area that there is so 
much need for legal services, you know, of all different kinds. 
Of people who have housing problems or have employment 
problems, or who have problems accessing health care in ways 
that they need it, in all kinds of ways in which a lawyer can 
help them and, you know, in which this country should be able 
to work out a system in which such help can be provided.
    And as you said, we very much expanded the clinical 
programs at Harvard during the time of my deanships. We also 
expanded the other kinds of pro bono opportunities open to 
Harvard Law School students. I think the numbers are more than 
double the number of clinical placements during the time that I 
was dean. And the pro bono work that was done by Harvard Law 
School students more than doubled during that time as well. So 
that 40-hour a week requirement that you mentioned--40-hour by 
graduation requirement that you mentioned, we had students who 
had performed 2,000 hours of pro bono by the time they 
graduated. And I think that the average amount of pro bono that 
was done by our students by the time they graduated was 
something like 500 hours, sort of ten times the amount that we 
required of them.
    And I think that that's because what they discovered was 
this incredibly meaningful part of being a lawyer that you can 
provide real services to people who need them that you can make 
a difference in the world, that you can make a difference in 
the lives of ordinary human beings. And I think, you know, 
sometimes you can sit in the law school classroom and not know 
exactly how it all matters in the world. And then you get into 
one of these clinics and you do this kind of work and you see 
how it matters and you see how lawyers can truly benefit 
people.
    Senator Cardin. The University of Maryland, I believe, is 
attracting a much higher-level student today because of its 
clinical programs. Students want these opportunities. And I'm 
proud that you--I'm proud that we've instituted it in Maryland 
and I think what you have instituted at Harvard also gives you 
a better diversity of student body that will help in the 
mission at the law school.
    One last question, just very briefly, the ABA requires, as 
part of our legal ethics, to participate in pro bono. How well 
do you think that we're doing as a legal profession on pro bono 
work and what can you do as a Justice to help advance these 
issues?
    Ms. Kagan. Well, we can surely do better. And I think the 
Justices--you know, the question of what the Justices say, and 
how the Justices approach these big questions about the legal 
profession is something that I would want to talk with my 
colleagues about if the Senate sees fit to confirm me. But I 
think that there's got to be a role for Supreme Court Justices 
given the positions that they have, given the visibility that 
they have to try to work for appropriate--to try to make sure 
that the practice of law, the legal profession really lives up 
to the ideals that it has.
    Senator Leahy. Thank you. Thank you, Senator Cardin.
    Solicitor General Kagan, I've been involved in hearings 
either as a member or conducting them for 35 years of various 
judicial nominees. I can't remember when anybody's been asked 
such a wide variety of questions or answered them as 
forthrightly as you have. And I know it's been a long and 
tiring day. I think the best thing to do for us is to break 
now, come back--unless you want to override that?
    Ms. Kagan. No, that's good.
    [Laughter.]
    Senator Leahy. I was looking there, I was going to say, 
don't call my bluff right now, I want to go home too.
    [Laughter.]
    Senator Leahy. We will come back in here at 9 tomorrow 
morning. I've had a lot of discussions with Senator Sessions 
who is actually wonderful to work with. I mean, he has to 
protect, on his side, but we really do try to work on 
schedules. We, because of the death of Senator Byrd and the 
changes that's made, it's also making in changes in what we 
might do. It's one of the reasons why we went as late as we 
did. And I thank my colleagues on both sides of the aisle for 
being responsive to that.
    So, please get a good night's rest. I'm going to try to do 
the same. Senator Sessions, I hope you can too. And we stand in 
recess.
    [Whereupon, at 7:05 p.m., the Committee was recessed.]


THE NOMINATION OF ELENA KAGAN TO BE AN ASSOCIATE JUSTICE OF THE SUPREME 
                       COURT OF THE UNITED STATES

                              ----------                              


                        WEDNESDAY, JUNE 30, 2010

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9 a.m., in room 
SH-216, Hart Senate Office Building, Hon. Patrick J. Leahy, 
Chairman of the Committee, presiding.
    Present: Senators Leahy, Kohl, Feinstein, Feingold, 
Specter, Schumer, Durbin, Cardin, Whitehouse, Klobuchar, 
Kaufman, Franken, Sessions, Hatch, Grassley, Kyl, Graham, 
Cornyn, and Coburn.
    Chairman Leahy. All right. Back to my day job.
    [Laughter.]
    Chairman Leahy. Yesterday the nominee answered our 
questions over the course of 10 hours. This morning we will 
complete the first extended round of questioning in which all 
19 members of the Committee, Republicans and Democrats, ask 
questions for 30 minutes each, and I would hope after that 
Senators and the American people have a better sense of the 
nominee. I know I do.
    Yesterday we saw her demonstrate her knowledge of the law 
as well as her patience and good humor. She consistently spoke 
of judicial restraint, her respect for our democratic 
institutions, and deference showed to Congress and judicial 
precedent. So I urge Senators to consider what additional 
questions they may feel they need to do in a second round. I 
have had several Senators tell me they will not need their 
whole time, and I do appreciate that because we have a lot to 
do if we want to complete the nominee's testimony today. And I 
realize I have been pushing the schedule very hard. I 
appreciate the nominee's forbearance, but I also appreciate my 
good friend Jeff Sessions and his willingness to work on this, 
because we have the memorial services for Senator Byrd that are 
scheduled on Thursday, Friday, and Saturday, and we have to 
figure out how we take those into account.
    Jeff, did you want to add anything?
    Senator Sessions. Well, I know that you do have some 
challenges in working through the schedule. I want to work with 
you. We do not want to and cannot in any way curtail the 
essence of this hearing. But we will definitely do what we can 
to be accommodating, and I hope we can complete a full day 
about this in an effective way.
    I do hope that we can learn more about the nominee. We see 
her gifts and graces in many different ways. Those are 
revealed, and her humor and her knowledge. But I think some of 
the critics who are saying, ``Who is this nominee? Exactly what 
do you believe? '' might find it from the testimony difficult 
to know, Ms. Kagan, whether you would be more like John Roberts 
or more like Ruth Bader Ginsburg.
    So I think we need to know a little bit more what we can 
expect of you as a judge, and I hope today as we go forward 
maybe that will come through a little clearer.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you very much.
    Senator Whitehouse, you are recognized for 30 minutes.
    Senator Whitehouse. Thank you, Mr. Chairman.
    Ms. Kagan, good morning.

  STATEMENT OF ELENA KAGAN, TO BE AN ASSOCIATE JUSTICE OF THE 
               SUPREME COURT OF THE UNITED STATES

    Ms. Kagan. Good morning.
    Senator Whitehouse. Welcome back.
    Ms. Kagan. Thank you.
    Senator Whitehouse. The questions that we ask judicial 
candidates usually begin with a description of what I view as 
the role of the judge, and I would ask you to agree or 
disagree, if you would. I think that a Justice of the Supreme 
Court, for instance, must decide cases on the law and the facts 
before them; that they must respect the role of Congress as the 
representative body representing the American people; that they 
must not prejudge any case but listen to every party that comes 
before them; and that they must respect precedent and limit 
themselves to the issues that the Court must decide.
    Do you agree that those are the proper roles of a Justice 
of the Supreme Court?
    Ms. Kagan. I do agree with that, Senator Whitehouse. It is 
what I tried to express in my opening statement on Monday and 
in much of my testimony yesterday.
    Senator Whitehouse. And on this matter of precedent, does 
precedent have an institutional role in the Court in terms of 
the separation of powers and the balance of power in the 
Constitution? Is it a means by which the Court restricts itself 
from taking steps outside of proper bounds in areas best left 
to the more political branches of Government?
    Ms. Kagan. Senator Whitehouse, I think that is said very 
well. The doctrine of precedent is in large part a doctrine of 
constraint that ensures that improper considerations, improper 
factors will not come into judicial decisionmaking, that 
ensures that courts will decide every case on the law. It is 
also a doctrine of humility. It says that even if a particular 
Justice might think that a particular result is wrong, that 
that Justice actually should say to herself, ``Maybe I am 
wrong,'' and maybe the greater wisdom is the one that has been 
built up through the years by many judges in many cases.
    So precedent is a doctrine of humility, and it is very much 
what you said it is, a doctrine of constraint, a doctrine that 
binds courts and judges to the law.
    Senator Whitehouse. And important within our notion of 
separated powers, since the other branches operate under the 
check of the United States Supreme Court, that the United 
States Supreme Court as a court of final appeal has no check on 
itself. And the question who watches the watchman is very much 
pertinent to the Supreme Court or to any court of final appeal. 
And it is in that context, is it not, that respect for 
precedent takes on this limiting, separated powers, 
constraining function in the very structure of our democracy?
    Ms. Kagan. Senator Whitehouse, that is correct. Respect for 
precedent and judicial restraint more generally are necessary 
for the reason you said, that the courts themselves have not 
been elected by anybody. There is no political accountability 
from the American citizenry. And there are precious few ways in 
which the legislature and the President can or should interfere 
with their function. They ought to be independent. But that 
places on them a responsibility which is also to be restrained.
    Senator Whitehouse. So if you look at some of the big 
decisions that have been controversial and contentious--and I 
suppose one of the first would be Brown v. Board of Education, 
which created massive change across the country in our 
education system, directed to take place with all deliberate 
speed, long overdue by many measures, but certainly a massively 
important decision in the lives of people across the country, 
that was decided by a Court that was unanimous. Roe v. Wade has 
perhaps been the most controversial decision the Court has ever 
rendered. That was decided by a 7-2 Court. In both of those 
cases, Republican appointees and Democrat appointees joined the 
majority and supported the decision.
    And yet when you get to the recent Court, you see a 
different posture emerging. If you look at the Leegin decision 
as an example of a statutory case, that was the one you talked 
about yesterday where the antitrust laws were changed by the 
Court. The law did not change at the time, nor did the 
precedent. Correct?
    Ms. Kagan. As far as I know, the precedent had not changed 
under Leegin, but, Senator Whitehouse, you will excuse me, I am 
not an antitrust expert, so I do not know whether there was any 
lead-up to Leegin.
    Senator Whitehouse. But your testimony was that a new 
economic theory yesterday----
    Ms. Kagan. I think that that is mostly----
    Senator Whitehouse.--had driven the change.
    Ms. Kagan.--what Leegin was based on.
    Senator Whitehouse. And I agree with that. I do not contest 
that. What is interesting, though, is that it threw out 96 
years of precedent, and it did so 5-4 with that group of five 
Republican-appointed judges driving the 5-4. And, again, if you 
look at Heller, the Second Amendment had not changed. The 
precedent by definition had not changed. Heller changed the 
law, creating for the first time in 220 years a private right 
to bear arms that no previous Supreme Court had ever noticed. 
And, again, that decision was done 5-4 with Republican 
appointees only driving the law in a different direction by the 
narrowest possible margin.
    So I guess I want to ask you what you think about all these 
5-4 decisions and what effort the Court should make to return 
to a collegial environment at the Court where even these highly 
contentious decisions, like Brown v. Board of Education and Roe 
v. Wade, are driven either by unanimous or massive majorities 
of the Court rather than the slenderest possible majority and 
to try to reach across the partisan divide on the Court so it 
is not just Republican appointees acting together. Should there 
be any desire or motivation on the part of that group of five 
to reach their scope a little bit more broadly for the sake of 
the Court, for the sake of the country, for the sake of 
stability in the law, and not be so content with 5-4 decisions?
    Ms. Kagan. Senator Whitehouse, it is a hard question you 
pose because, on the one hand, every judge, every Justice has 
to do what he or she thinks is right on the law. You would not 
want the judicial process to become in any way a bargaining 
process or a log-rolling process. You would not want people to 
trade with each other, you know, ``You vote this way, and I 
will vote that way, and then we can get some unanimous 
decisions.''
    Senator Whitehouse. But on the other hand----
    Ms. Kagan. Every judge has to do what he or she thinks the 
law requires. But, on the other hand, there is no question, I 
think, that the Court is served best and our country is served 
best when people trust the Court as an entirely non-political 
body, when people look to the Court as doing what we know it 
ought to be doing, which is deciding cases that come before it 
on the best possible reading of the law. And I think----
    Senator Whitehouse. And the Court is capable of framing the 
decision that it makes in a narrower or more incremental way to 
attract a broader base of support on the Court without 
necessarily engaging in log-rolling or any of the behaviors 
that you think are inappropriate, and I do not contest that. 
But there are ways to get to a larger majority without engaging 
in those, are there not?
    Ms. Kagan. Well, one of the benefits of narrow decisions 
generally--and there are a number of them, but one of the 
benefits of narrow decisions is that they enable consensus to a 
greater degree than broad, far-reaching decisions. And that is 
generally a benefit for the judicial process and for the 
country as a whole to try to reach consensus on what it is 
possible to reach consensus on consistent with the law.
    Senator Whitehouse. By definition, if the Court were to 
reach beyond the group of five that has driven so many of these 
recent decisions, they would be less able to move the law as 
dramatically as they have. That is just obvious, is it not?
    Ms. Kagan. Senator Whitehouse, I want to make it clear that 
I am not agreeing to your characterizations of the current 
Court. I think that that would be inappropriate for me to do.
    Senator Whitehouse. I understand that.
    Ms. Kagan. And I am sure that everybody up there is acting 
in good faith. I do believe that one of the benefits of narrow 
decisions, of approaching one case at a time and in each case 
trying to think of the narrowest way to decide the case, is to 
enable consensus. And consensus is in general a very good thing 
for the judicial process and for the country.
    Senator Whitehouse. And the reverse of that is also true, 
which is that if you reach for a larger base of support in the 
Court, you constrain yourself a little bit in how rapidly you 
are able to move the law in a particular direction. Correct?
    Ms. Kagan. And I think what a judge should do is not to 
think about--you know, ``Over the long haul, I want the law to 
move in this direction.'' I think what a judge should do is to 
take one case at a time and----
    Senator Whitehouse. I know that is what you think.
    Ms. Kagan. Well, I can only tell you what I think.
    Senator Whitehouse. That is right. But if you were looking 
for a signal from the Court over what its intentions are, one 
very practical signal is that over and over again it is a Court 
that is willing to make very important decisions by a 5-4 
majority rather than roll its decisions back, be a little bit 
more modest in the way it goes in its direction, and reach for 
a broader consensus on the Court. That is simply factually 
true, isn't it?
    Ms. Kagan. Senator Whitehouse, I am going to insist again, 
I am not characterizing the Court or any of the Justices on the 
Court, and just to say what I think is the right approach to 
judicial decisionmaking. And I think it is--the right approach 
is to take one case at a time, to not be looking down the road 
and trying to figure out in what direction the law generally 
should go and how that case is going to lead to another case 
or----
    Senator Whitehouse. But, hypothetically, if judges were 
there with a larger purpose or on a mission to direct the law 
in a particular direction, clearly one of the indications of 
that--or at least it would be consistent with that if there 
were a lot of 5-4 decisions, wouldn't it? Just as a matter of 
logic.
    Ms. Kagan. Well, I do not think that--what I am most trying 
to make clear is that I do not think that any such agendas are 
the way anybody should conduct their business.
    Senator Whitehouse. And I agree.
    Ms. Kagan. And----
    Senator Whitehouse. Let me change the topic a little bit. 
What is the proper role of a court of appeal, a court of final 
appeal in particular, with respect to making findings of fact? 
Whose province is making findings of fact?
    Ms. Kagan. Well, findings of fact are usually made in the 
district court, in the trial court, or with respect to other 
kinds of cases, of course, fact finding can be done by 
Congress. But appellate courts do not make findings of fact, do 
not have the competence to make findings of fact, so for the 
most part rely on the findings of fact made in other 
institutions.
    Senator Whitehouse. That was my thought as well. I have 
spent some time doing appellate work, and my understanding was 
that particularly appellate courts do not do and particularly 
Supreme Courts do not do findings of fact. They have a record 
before them, and that is the record that they have to follow, 
and it is the courts below that make the findings of fact. So I 
was surprised in the Citizens United decision when the Court 
concluded that--and this is a quote--``independent 
expenditures, including those made by corporations, do not give 
rise to corruption or the appearance of corruption.'' And why 
do you suppose the Court was willing to engage in that finding 
of fact, which I think all of us who have had any political 
experience at all, not only find to be odd in the sense of it 
is a finding of fact being made by a Supreme Court, but also it 
is a finding of fact that in everybody's experience who has 
been near an election is actually wrong?
    Ms. Kagan. Well, I talked before about my argument in 
Citizens United, and, of course, I approached that argument as 
an advocate for the U.S. Government, defending that statute and 
trying to defend it as vigorously as I possibly could. And 
certainly a large part of my argument was to urge the Court to 
defer to Congress' very extensive fact finding on this subject. 
And it was extensive. It occurred over many years, and----
    Senator Whitehouse. And it ran exactly contrary to this 
particular finding of fact made by the Supreme Court, did it 
not?
    Ms. Kagan. I think that what the Court was saying on the 
other hand was that this was a case in which political speech, 
paramount speech entitled to paramount First Amendment 
protection was involved, and that the Government had failed to 
show that there was a compelling state interest that was 
narrowly tailored to the restriction----
    Senator Whitehouse. I understand that. That was the holding 
of the Court. But my focus is on this particular finding of 
fact that they made, which was, A, unusual and I think peculiar 
from a Supreme Court; B, factually wrong in everybody's 
experience who has been around an election; and, C, actually, 
as you pointed out, directly contrary to the findings of fact 
that Congress had made in the 100,000-plus-page record that had 
been developed in prior cases.
    So it is just interesting that they would make that finding 
of fact. Clearly it is the core--analytically the core finding 
of fact necessary to take the step that they made to say that 
Congress has no business limiting corporate spending in 
elections and corporations can spend as much as they please. If 
you want to go that way, this is the kind of finding of fact 
one would have to make.
    So it concerns me that it is there, and I would hope that 
if you get to the Court you are more restrained in terms of 
making findings of fact at the Supreme Court level, 
particularly those that appear to diverge from the actual facts 
and from the Congressional record that is the ordinary way in 
which these facts get to the Court. And I assume that you would 
agree that to be modest with respect to findings of fact as 
well.
    Ms. Kagan. Senator Whitehouse, I do think Congressional 
fact finding is very important and that courts should defer to 
it. It does not mean that fact finding is either necessary or 
sufficient. Sometimes Congress can make no findings of fact at 
all, and the Court should still defer to Congress. And, on the 
other hand, sometimes Congressional fact finding cannot save a 
statute, but in very significant measure, the courts should 
defer to Congressional fact finding, and they should do so 
because they should realize that it is Congress rather than 
courts that has the competence to engage in that kind of fact 
finding, to develop evidence, to call witnesses----
    Senator Whitehouse. The rule, in fact, is nearly absolute. 
I mean, really the only time when it is OK for a court to make 
a finding of fact is when it goes to the point where a court 
can take judicial notice of something as a completely 
uncontested baseline fact. Isn't that the law on this?
    Ms. Kagan. Courts in general have neither the competence 
nor the legitimacy to do fact finding in the way that Congress 
can do fact finding.
    Senator Whitehouse. So to go back to my premise, which you 
do not accept--and, you know, I understand that that is the 
frame of our discussion--that there may be judges on the Court 
who have a particular mission right now and are selectively 
knocking out precedent that does not coincide with their 
ideological views, if one wished to continue to do that--
assuming my premise to be true. I know you do not accept it, 
but assuming my premise to be true, if there were judges who 
had that point of view and were on a mission to move the law in 
a particular direction and wanted to continue to do it, it 
strikes me that one way that they would try to continue to do 
that would be to try to create an analytical method or 
analytical machinery that supported the continuing effort. And 
in that regard, I was interested in Chief Justice Roberts' 
concurring opinion in Citizens United where he talks about 
precedent that actually impedes--this is his quote--''actually 
impedes the stable and orderly adjudication of future cases.''
    I think through the whole hearing we have had sort of a 
baseline premise in our discussions with you that precedent is 
what precedent is. It has been decided. You do not have an 
opinion as to whether you like it or not. It is the precedent 
and you are bound by it. But here is the Chief Justice saying 
that some precedent ``actually impedes the stable and orderly 
adjudication of future cases.'' And here is how you find out 
what that precedent is, according to the Chief Justice in his 
concurring opinion: when the precedent's validity is so hotly 
contested that it cannot reliably function as a basis for a 
decision in future cases.
    Now, if that is a theory of precedent, does that not allow 
a determined group of judges on the Court to hotly contest 
precedent that they do not like and gradually undermine it 
until it reaches the point that it is so hotly contested that 
it cannot reliably function as a basis for a decision and they 
can now topple that precedent as impeding the stable and 
orderly adjudication of future cases? Analytically, setting 
aside the fact that you disagree with my premise, analytically 
isn't that the way that works?
    Ms. Kagan. Senator Whitehouse, I think that the Chief 
Justice was not the first in that opinion to make the argument 
that if a precedent is hotly contested, in his words, has been 
subject to very continuing disagreement and dispute, that that 
weakens it as a precedent.
    Now, other courts at other times have said the opposite, 
that that should not function as a reason to weaken the 
precedent. So I think that there is--even prior to the Chief 
Justice's statements, I think that there are competing 
statements, competing views on this question.
    I think----
    Senator Whitehouse. I understand that, but my point is that 
if you were a judge who wished to go out and selectively 
undermine and topple precedent that you did not agree with 
because you had a particular point that you wished to drive the 
law toward, isn't this a very useful doctrine because you are 
now in a position to hotly contest the precedent that you do 
not like and use your own disagreement with it to undermine it 
and take it down? Isn't it in that sense a doctrine that we 
should regard with some caution, given the role of precedent as 
a limiting factor in the separation of powers and the very 
balance of power of our Government?
    Ms. Kagan. I do believe, Senator Whitehouse, that it should 
be regarded with some caution. I think that the stronger 
reasons and the reasons that the Court more frequently relies 
upon to reverse precedent has to do with its workability and 
has to do with whether either legal doctrine or empirical facts 
have eroded the precedent. I do think that the Chief Justice 
made some points with respect to those issues as well in his 
concurring opinion. But in any event, I think that those are 
the two--the two more standard bases for deciding that a 
precedent really does have to be reversed.
    Senator Whitehouse. I think it was Senator Cornyn on the 
other side who said that, to use his words, ``I think it would 
be a strange system indeed if our system allowed for precedent 
to be disrespected and become not binding any longer.'' And it 
strikes me that this system where judges on the Court can 
continue to hotly contest precedent they do not like, undermine 
it, and topple it meets that ``strange system indeed'' 
standard.
    Let me turn to the question of the jury. I spoke about that 
in my opening remarks briefly. Again, back to the Constitution, 
if you set up the various institutions of Government, here we 
are the Senate, one of the institutions of Government, engaged 
in our advice and consent to a nomination by the President of 
the United States, another institution of Government, for a 
nominee to the Supreme Court, a third institution of 
Government. Another institution that is repeatedly referenced 
in the Constitution and Bill of Rights, three times total, is 
the jury.
    Could you comment on the extent to which the jury was seen 
by the Founders as an institution of Government, as what de 
Tocqueville called a mode of the sovereignty of the people?
    Ms. Kagan. I think it was, Senator Whitehouse. You know, we 
learn about the separation of powers system and how the three 
branches of Government are designed to check each other. But 
the Framers also had a very strong view that there was another 
check in the system, and that check was the people and that the 
institution that the people often functioned as part of was the 
jury. And to the Framers, the jury was an extremely important 
mechanism in checking the other branches of Government.
    Senator Whitehouse. Because they had seen corrupt colonial 
Governors and were suspicious of executive power, were they 
not?
    Ms. Kagan. That is my understanding, Senator Whitehouse.
    Senator Whitehouse. And they had seen the power of the 
early legislatures. I think Thomas Jefferson said, ``We have 
traded in one tyrant for 237,'' once he saw the Virginia 
Assembly begin to act, and that is why they had to go back and 
design the balanced system of powers. And they were sympathetic 
to press attacks, so they could imagine an individual who the 
Governor was predisposed against, who was in the pockets of the 
enemy of this individual. They could imagine the individual 
being on the wrong side of the General Assembly or the 
legislature. They could imagine an individual who the owners of 
the paper had turned on and were marshalling public opinion 
against. And I believe that they wanted to create one last 
sanctuary where all of that money, power, influence, and public 
opinion would not hold sway. And that is why they established 
the jury, with regular citizens, and we protect it with laws 
that make tampering with a jury a crime. Do you agree?
    Ms. Kagan. I think, Senator Whitehouse, that the jury was 
an extremely important mechanism to the Framers, and it was a 
mechanism designed to check other institutions of Government.
    Senator Whitehouse. As sort of a last--when everybody else 
is gone, you can still get a fair hearing in court before the 
jury.
    Ms. Kagan. I think certainly the Framers believed in an 
independent judiciary generally, and there is no question that 
within the judicial branch they thought that the jury played a 
very significant role.
    Senator Whitehouse. So when the Supreme Court threw out the 
Exxon punitive damages award of $5 billion, just 1 year's 
profits for Exxon, when they ran the tanker aground in Prince 
William Sound, and did so on the basis, in part, of 
predictability for corporations, there was a clear value 
judgment there with considerable history and constitutional law 
and original intent surrounding the jury on the one side of 
that equation and the convenience and predictability for 
corporations on the other side of that equation. Correct?
    Ms. Kagan. Well, I do think the Court in Exxon was 
struggling with values on both sides. I would agree with that.
    Senator Whitehouse. And in that particular case, the 
institution of the jury lost, and the predictability for 
corporations won.
    Ms. Kagan. In that particular case, the Court held under a 
kind of maritime common law that punitive damages could go----
    Senator Whitehouse. No higher than compensatory damages.
    Ms. Kagan--[continuing]. No higher than compensatory 
damages.
    Senator Whitehouse. Because, otherwise, it became 
unpredictable for corporations.
    Ms. Kagan. It became unpredictable that there was no 
civility in the system.
    Senator Whitehouse. Correct. Thank you for our time 
together. I wish you well. And I appreciate how well and with 
what good humor and how openly you have answered all of our 
questions through this long ordeal.
    Ms. Kagan. Thank you, Senator.
    Senator Whitehouse. Thank you, Mr. Chairman.
    Chairman Leahy. Thank you, Senator Whitehouse, and thank 
you for the time you have spent on this.
    Senator Klobuchar.
    Senator Klobuchar. Thank you very much, Mr. Chairman.
    Solicitor General Kagan, you had an incredibly grueling day 
yesterday and did incredibly well, but I guess it means you 
missed the midnight debut of the third ``Twilight'' movie last 
night. We did not miss it in our household, and it culminated 
in three 15-year-old girls sleeping over at 3 a.m. So I have 
this urge to ask you about the famous----
    Ms. Kagan. I did not see that.
    Senator Klobuchar. I just had a feeling. I keep wanting to 
ask you about the famous case of Edward versus Jacob or the 
vampire versus the werewolf.
    Ms. Kagan. I wish you wouldn't.
    Senator Klobuchar. I will refrain--well, I know you cannot 
comment on future cases, so I will leave that alone.
    I read a few weeks ago this article that I thought was good 
in the Washington Post by Donald Ayer, who is the former Deputy 
Solicitor General in the Reagan administration, and he talks a 
lot about what he thinks these hearings should be about, but he 
also makes some references to the balls and strikes analogy. 
And as you know, when Chief Justice Roberts was nominated to 
the Supreme Court and sat in the seat you are currently in, he 
famously told this Committee that judges are like umpires. 
Umpires do not make the rules. They apply them. He said that it 
was his job to call balls and strikes. And I was wondering if 
you could just talk about that metaphor. Do you think the balls 
and strikes analogy is a useful one? And does it have its 
limits?
    Ms. Kagan. Senator Klobuchar, I think it is correct in 
several important respects, but like all metaphors, it does 
have its limits. So let me start with the ways in which I think 
it is an apt metaphor.
    The first is kind of the most obvious, which is that you 
expect that the judge, as you expect the umpire not to have a 
team in the game--in other words, not to come onto the field 
rooting for one team or another. You know, if the umpire comes 
on and says, you know, I want every call to go to the Phillies, 
that is a bad umpire. Is that your team?
    [Laughter.]
    Senator Klobuchar. Not exactly. The Twins.
    Ms. Kagan. I was pointing to Senator Kaufman. I am sorry.
    And the same for the judge. So, you know, to the extent 
that what the umpire suggests that there has got to be 
neutrality, that there has got to be fairness to both parties, 
of course, that is right.
    The second thing that I think is right about the metaphor--
and I think that this is what the Chief Justice most had in 
mind, if I remember his testimony correctly--is that judges 
should realize that they are not the most important people in 
our democratic system of Government. They have an important 
role. Of course, they do. We live in a constitutional 
democracy, not a pure democracy. And judges have an important 
role in policing the constitutional boundaries of our system 
and ensuring that governmental actors, other governmental 
actors do not overstep their proper role. But judges should 
recognize that that is a limited role and that the policymakers 
of this country and the people who make the fundamental 
decisions for this country are the people and their elected 
representatives, whether in Congress or in the executive 
branch. And I think that that is right, too, as I have tried to 
say on many occasions throughout these hearings.
    I suppose the way in which I think that the metaphor does 
have its limits--and I believe that this is in line with what 
Mr. Ayer was talking about--was that the metaphor might suggest 
to some people that law is a kind of robotic enterprise, that 
there is a kind of automatic quality to it, that it is easy, 
that we just sort of stand there and, you know, we go ``ball'' 
and ``strike'' and everything is clear-cut and that there is no 
judgment in the process. And I do think that that is not right, 
and it is especially not right at the Supreme Court level, 
where the hardest cases go and the cases that have been the 
subject of most disputes go.
    As to that, I think that there is--judges do in many of 
these cases have to exercise judgment. They are not easy calls. 
That does not mean that they are doing anything other than 
applying the law. I said yesterday on a couple of different 
occasions it is law all the way down. You know, you are looking 
at the text, you are looking at structure, you are looking at 
history, you are looking at precedent. You are looking at law 
and only at law, not your political preferences, not your 
personal preferences. But we do know that not every case is 
decided 9-0, and that is not because anybody is acting in bad 
faith. It is because those legal judgments are ones in which 
reasonable people can reasonably disagree sometimes. So in that 
sense, law does require a kind of judgment, a kind of wisdom, 
and there are frequently clashes of constitutional values. 
Senator White House talked about one such clash, but there are 
many of them. And judges have to, you know, listen to both 
sides and cast each argument in the best possible light, but 
sometimes they are not going to agree.
    Senator Klobuchar. And one of the things he says in this 
article, he makes that point and talks about how these hearings 
should actually focus not on what he calls the simple 
cleverness and ability to score debater's points, but of 
greater relevance when you look at the whole universe of trying 
to make decisions between plausible alternatives on different 
cases. He said, ``The greatest relevance for a nominee is a 
demonstrated history of good judgment and prudence in life as 
in legal work.'' And he makes the argument that that should be 
the focus of those hearings.
    So along these lines, I am going to just ask some of your 
work experiences and how you think that they help you to be a 
better judge and what you bring to the bench because of that.
    Senator Schumer had asked you about your work as Dean of 
Harvard Law School, and you said the thing you learned most 
from that was listening. And I wondered how will that 
experience beyond listening even--what will you bring from that 
experience to the bench? And what lessons have you learned that 
will make you a good Justice?
    Ms. Kagan. Senator Klobuchar, I guess I will start by just 
saying that that listening was the most important lesson. I was 
so struck when I read this statement by Justice Stevens about 
understanding before disagreeing, and he had said that about 
the Justice whom he clerked for. And I thought, you know, that 
is about the best thing that you can say about a person, that 
the person does listen and try to understand things from the 
other point of view before deciding to disagree, and, you know, 
maybe deciding not to disagree because of the listening and the 
understanding that has taken place. So that is, I hope, 
something that I had to learn a little bit during my time as 
dean.
    But I guess otherwise--you know, Mr. Ayer said prudence and 
judgment. I do think that when you run an institution with, you 
know, many, many employees, with a big budget, with just, you 
know, lots of the kinds of problems that--any person who runs a 
business or runs an organization just knows the wide variety of 
things that come across your plate every day, and, you know, 
you exercise a lot of muscles when you do something like that, 
and they are muscles that I had never exercised before, and it 
gave me grounding in a lot of things that I otherwise would not 
have had grounding in. And it made me, I think, you know, very 
aware of other people, I think, in a way that maybe I would not 
have been had I been just a professor all my life, because so 
many people come to your office with just life problems, and 
you get exposure to, you know, so many different sorts of 
issues that people are struggling with and that people are 
confronting in their lives, and it becomes a little bit your 
life, too. And, you know, I hope that that made me a better 
person.
    Senator Klobuchar. You know, as the Solicitor General, you 
got to actually argue cases before the Supreme Court. How has 
that experience informed your appreciation for oral argument 
and what you think are good oral arguments, bad, what 
techniques do you think work?
    Ms. Kagan. Well, first I will say that it has very much 
deepened my appreciation of the Court itself, and I hope that 
this was something that I conveyed in my opening statement, is 
that you go up there and you get to the podium, and there are 
nine people, and every single one of them is so prepared to 
talk about the case, so into the case, so engaged, obviously so 
smart, and so, I think, trying to get it right. And so I have 
developed a real appreciation for the Court through those oral 
arguments.
    What do I think is a good oral argument? I think you have 
to answer the judge's questions. I think they are impatient 
when people try to give speeches or when people go up to the 
podium and just try to make their points. I have four points I 
want to make; I am going to make those points again and again 
and again. And the Justices, I think, they have your briefs, 
they have read your briefs, and, you know, the striking thing 
is that they really have read your briefs. They know your 
briefs. So they do not want to hear you repeat your briefs. 
What they want to hear you do is respond to their questions, 
and I think good advocates know that, and they know that even 
if it means going down a road that--you know, their great 
points are in some other direction, but it makes sense to go 
down the road that the Court wants you to go down, because that 
is what the Court is interested in, and it is only if you 
address the Justices' real concerns that you are going to win 
your case.
    Senator Klobuchar. So if you are confirmed, then we will 
consider those tips for those that go before you.
    The other thing I wanted to get to, back to this judicial 
philosophy piece of what we are talking about here, and that is 
this back to the master's thesis you wrote--know it was before 
you were in law school--that you and Senator Grassley 
discussed. But in that thesis, you wrote that, ``Supreme Court 
Justices live in the knowledge that they have the authority 
either to command or to block great social, political, and 
economic change. At times, the temptation to wield this power 
becomes irresistible.''
    What in your character or your experience will help you 
deal with this temptation when you are on the bench?
    Ms. Kagan. Well, I again want to say what I said yesterday, 
is that let us just throw that piece of work in the trash, why 
don't we? You know, that it was something that I wrote before I 
went to law school and did not know much, did not understand 
much about law, and certainly about the way judges should work.
    I just think every judge just has to be committed to the 
kind of principles of restraint that I have tried to talk about 
in this hearing, and every judge has to realize that the people 
of this country get to make the fundamental decisions about 
this country. And I do think that my experience working in 
other branches of Government, in the executive, and working a 
good deal with Congress, will remind me of that if anything 
were needed to remind me of that, because what I did take away 
from those experiences was really a profound respect for the 
political process and for how policy decisions are made. And 
not every single one of them looks pretty, and, of course, no 
single person is going to agree with every result that comes 
out of Congress or any other political institution. But I do 
believe that there is real wisdom in the American people, and 
that wisdom gets channeled through institutions like this one, 
and that in the main we are well served by our political 
institutions, and that even when we are not, it is just not up 
to courts to correct that.
    So, you know, I think that the experiences that I have had 
in government are good reminders of just the importance of the 
democratic branches of our Government in making the fundamental 
policy decisions that affect our country.
    Senator Klobuchar. Very good. The other part of your job 
will be to write opinions, and in a 1996 article on the First 
Amendment you discussed a case actually from my State, RAV v. 
City of St. Paul, and you noted that Justice Stevens criticized 
part of the Supreme Court's approach in that case, 
characterizing it as ``an adventure in a doctrinal 
wonderland.''
    How as Justice Stevens' successor would you work to make 
sure the Supreme Court's opinions are both well grounded and 
accessible to the general public?
    Ms. Kagan. Senator Klobuchar, I should say it is an 
important question, but I will just say I think in the end I 
disagreed with Justice Stevens more than I agreed with him in 
that opinion.
    Senator Klobuchar. Right.
    Ms. Kagan. But I do think it is sometimes a fair criticism, 
the criticism that Justice Stevens made, and it suggests 
something about maybe some decisions' lack of connectedness to 
sort of facts on the ground. And I would say two things about 
that.
    The first is that courts have to be really attentive to the 
facts of a case, that courts cannot be sort of spinning legal 
doctrine irrespective of the facts in a case that have been 
presented to them, because the whole idea of courts in our 
system is that the courts are not deciding abstract legal 
questions. They are not just sort of philosophizing about 
proper legal approaches. They are deciding actual cases and 
controversies. And what it means to decide an actual case or 
controversy is to think about the application of law to facts, 
and what that requires is that you really understand the facts, 
that you really--that you delve through the record, that you 
get your absolute best sense of what the actual conditions and 
circumstances of the parties are. So that would be the first 
point I would make.
    I guess the second thing is actually that even going beyond 
that, that it is often an important part of principled judicial 
decisionmaking to take into account the actual consequences of 
a legal rule. And this appears in a number of different areas. 
I will give you one, which is procedural due process, the 14th 
Amendment. We are more used to talking in these hearings about 
the substantive due process aspect of the 14th Amendment, but 
the procedural due process aspect is very important. It is the 
set of requirements that say when an individual comes and 
challenges the Government, says the Government has denied me 
some benefit that the Government owes me. The question is what 
procedures is that person entitled to to make that challenge. 
And the test the Court uses is a very practical one. It says, 
well, if we gave you more procedures, how much would that 
increase the accuracy of our determinations? And, also, if you 
were wrongly deprived of some benefit, how much would that hurt 
you? And, also, what is the burden that these procedures are 
likely to impose on the Government? What is the actual cost 
that the Government is going to have to incur? And it balances 
those things, and that is an example of how in some areas the 
Court has, and I think appropriately, looked to the real world, 
the practical effects of a particular legal rule.
    Senator Klobuchar. All right. So you are not talking about 
driving a result; you are talking about how the results, 
knowing what the results could be, should be considered.
    Ms. Kagan. Yes. You are totally not talking about driving 
the results. This is anything but a results orientation in the 
way people sort of think, oh, I want this side rather than that 
side to win. That is inappropriate in every and all 
circumstance. But there are places in which the legal doctrine 
and even the constitutional doctrine does take into account 
practical effects.
    Just another quick example is Fourth Amendment search and 
seizure cases, where the Constitution speaks of unreasonable 
searches and seizures. And one of the things that the Court 
takes into account in deciding what is a reasonable search and 
seizure and what is an unreasonable search and seizure is some 
practical impacts on the people who are searched, but also very 
much on the police. You know, how can we create a set of--you 
know, how can we create a doctrine that the police will find to 
be workable so that they will know when to search and when not 
to search, when they have to get a warrant and when they do not 
have to get a warrant.
    Senator Klobuchar. Well, along those lines, last year the 
Supreme Court decided, as you know, Melendez-Diaz v. 
Massachusetts, a case about the Confrontation Clause in the 
Sixth Amendment. And the Court held that it violated the 
Confrontation Clause for a prosecutor to submit a chemical drug 
test report without the testimony of a forensic scientist. It 
was a 5-4 decision. It did not split along ideological lines. 
And I was concerned about the decision just because, again, of 
the practicality of how all this would work for prosecutors, 
and, actually, this year the Supreme Court had another case, 
Briscoe v. Virginia, which raised the same question. And I was 
hopeful that the Court might limit Melendez-Diaz. Twenty-six 
Attorneys General, including the Attorney General of Minnesota, 
chimed in, explaining that it was already negatively affecting 
drug prosecutions in some States. And actually as Solicitor 
General in the Briscoe case, you submitted an amicus brief that 
supported the position of the State. And I thought you could 
discuss this, elaborate on the position and why you think it is 
important, if you look--because I figure you are not going to 
be able to get involved in this case if you are a Justice, but 
just if you could talk about the results and what could happen 
with a case like this.
    Ms. Kagan. Well, I will not be able to get involved in this 
case. I am sure that there are other issues that will be coming 
down the road about the Confrontation Clause. I will try to 
steer clear of that.
    As you say, Senator Klobuchar, the U.S. Government did file 
a brief in that case, and it supported, whatever it was, 26 or 
27 States which were concerned about the effects of the Court's 
prior ruling on law enforcement and particularly were concerned 
about the ability of governments to present evidence--this was 
evidence of drug testing--without going to great expense and 
burden to get every lab analyst into the courtroom.
    Senator Klobuchar. Right. I think in Virginia the statute 
said they could bring them in if there was a question, if it 
was disputed. But if it was not disputed, they did not have to 
bring the lab analyst in. And the Supreme Court decided not 
even to go into that and say, well, that would be fine.
    Ms. Kagan. Yes. I think the Court just remanded the case 
back to the lower courts to decide it, and decided, you know, 
not to say anything more about this issue in that case. The 
Government had urged them to do so because of the kinds of 
practical issues you raise.
    I think the Court's analysis now in this area does not 
focus on those practical questions. The Court's analysis simply 
asks, says, Is the evidence in question testimonial, which an 
affidavit from a drug analyst would be? And if it is 
testimonial, the only way in which it can be admitted in court 
is if the person who has made the affidavit, who has written 
the affidavit is unavailable and was previously subject to 
cross-examination. So it is a pretty bright-line rule, and it 
has had the effects on States that you mentioned. But it is--
the approach is now settled law, and I will say--I will say one 
thing about this. I think it sort of suggests something 
different about the judicial process that is a point I have 
been trying to emphasize.
    I think that the Justice who has been primarily responsible 
for this understanding of the Confrontation Clause. And it is 
an understanding of the Confrontation Clause, you know, that 
works well for criminal defendants.
    Senator Klobuchar. That is a nice way of saying it.
    Ms. Kagan. Criminal defendants love this rule. Prosecutors 
do not like this rule.
    The person who has been most responsible for this approach 
is, I think, Justice Scalia, and I do not think that Justice 
Scalia is any great fan of--you know, if you gave him a 
criminal defendant and gave him a prosecutor and said, 
``Choose,'' I do not--you know, I think we would know which way 
he would choose. It is actually a good example of where a 
person's view of the law comes out a different way from, you 
know, which party they might want to have win. And that is a 
great thing for a judge to do. All judges, that should happen 
in their lives, that their view of the law leads them in a 
direction which, you know, if they were a legislator or if 
they--you know, they would not come out that way.
    Senator Klobuchar. Well, I just hope you will take to heart 
one of the comments written about Justice O'Connor when she 
retired. Someone said, ``On an attentive reading, many of the 
Justice's opinions were infused with a keen sense of what it 
felt like to live inside the shoes of affected litigants and 
ordinary citizens and with an almost urgent need to make 
certain that the outcome of the case, while doctrinally sound, 
was also workable.'' And they went on to talk about her 
approach and a focus on pragmatism.
    And when I think about this Melendez-Diaz case and some of 
the other ones before the Court, in addition to some of the 
other issues my colleagues have raised--and this is not an 
ideological argument. It is just a practical argument of having 
someone that will go in there and think about the effect that 
some of these decisions have on ordinary citizens. So I hope 
you will take that to heart.
    The last thing I wanted to ask as the daughter of a former 
reporter is just about--there has been a lot of talk about the 
First Amendment as it relates to political speech, but I just 
want to talk for a minute on New York Times v. Sullivan. And in 
1993, you wrote a book review and you discussed the Supreme 
Court's decision in that case, which, as you know, was a 
critically important decision for libel law and for the First 
Amendment specifically. And your 1993 piece recognized how 
important the Sullivan decision was for First Amendment 
jurisprudence, but discussed the fact that the actual malice 
standard had been applied in libel cases that differed a great 
deal from those facts in Sullivan back in the 1960s with the 
civil rights movement.
    You wrote in that review, ``The obvious dark side of the 
Sullivan standard is that it allows grievous reputational 
injury to occur without monetary compensation or any other 
effective remedy.'' And you wondered, ``Is an uninhibited 
defamatory comment an unambiguous social good? That is, does it 
truly enhance public discourse? '' you asked. And I wondered if 
you agreed with your past comments on Sullivan and whether or 
not your last few months going through the media focus with 
your confirmation hearing has changed your opinion or 
strengthened it in any way, Solicitor General?
    Ms. Kagan. OK. I think people should be able to write 
anything that they want about me, and I do not think that I 
should be able to sue them for libel.
    [Laughter.]
    Senator Klobuchar. Very good. But how about the case itself 
and with the changing Internet and other, you know, more social 
media and bloggers? I mean, does that affect anything? And how 
about your past comments? Do you want to add to those from the 
book review?
    Ms. Kagan. It has been a long time since I read that book 
review, but I think that the point that the book review was 
making was, on the one hand, what an iconic decision New York 
Times v. Sullivan is, how important it has been to the 
development of our First Amendment law, how vital it is to a 
system of free expression to have newspapers and other people 
who speak--it is not just newspapers, as you suggest. I mean, 
given the way the media has developed, there are so many 
different ways to express thoughts in our world now. And to 
have these speakers insulated from libel suits by people who 
are in this public sphere, who are public officials or who are 
public figures, and to have an extremely, extremely high bar 
before those people can recover for any libel that may have 
been done them.
    I guess the question that I was asking in that review--and 
I continue to think it is a real question--is how far should 
that go in the sense of--we should understand that libel can 
harm people, that reputational harm is real harm, and that 
people can suffer great damage from their reputations being 
inaccurately besmirched through utterly false statements.
    And I guess the question that I asked was whether there 
were some contexts where the person had not put themselves into 
the public sphere in any real way, where the person was, you 
know, a private actor trying to mind his or her own business 
and sort of became dragged into the spotlight and something 
terrible was said about that person in a way that had harmed 
that person. The law actually does treat that person somewhat 
differently in libel law, but the question I was asking was 
whether the balance had been struck appropriately in that sort 
of case, where the values of the First Amendment in uninhibited 
political speech are not so much evident, and where the 
personal harm can be great.
    It has been so many years since I read that article, I am 
not exactly sure how I came out on that question. But I think 
it is a real question, and even as we understand the absolute 
necessity for a kind of New York Times v. Sullivan sort of rule 
and for protection of speakers from libel suits, from 
defamation suits, even as we understand that, you know, we 
should also appreciate that people who did nothing to ask for 
trouble, who did not put themselves into the public sphere, can 
be greatly harmed by--when something goes around the Internet 
and everybody believes something false about a person, that is 
a real harm, and the legal system should not pretend that it is 
not.
    Senator Klobuchar. Well, thank you very much, and thank you 
for putting yourself in the public sphere today. And as I said 
at the beginning, you have done a very good job. I appreciate 
it.
    Ms. Kagan. Thank you.
    Chairman Leahy. Thank you very much, Senator Klobuchar.
    Senator Kaufman, thank you for being here.
    Senator Kaufman. Thank you, Mr. Chairman.
    Good news. When you get to Senator Franken and me, you are 
at the end of the road.
    Ms. Kagan. That is not what they tell me, you know.
    Chairman Leahy. On the first round.
    Senator Kaufman. The first round.
    Some of my colleagues have suggested that you are too 
political because of your service on the Domestic Policy 
Council. Can you talk a little bit about the difference between 
serving on the Domestic Policy Council as opposed to serving on 
the Supreme Court?
    Ms. Kagan. There is a huge difference, Senator Kaufman. In 
the Domestic Policy Council, I was an aide to President 
Clinton. I was carrying out--helping President Clinton to carry 
out his domestic policy goals and objectives. As you know, I 
worked on a variety of issues. I worked on education. I worked 
on public health, particularly tobacco. I worked on anti-crime 
measures. I worked on the measures involved in ending the old 
welfare system. I worked on a number of things. I am very proud 
of my service there. I think I contributed to doing some good 
things for people across this country. But it is an entirely 
different role. I was, you know, not primarily looking--there 
was a period of time in the White House where I was also a 
lawyer, but when I was a policy aide, I was not primarily 
looking at things as a lawyer. And even as a White House 
lawyer, you are a lawyer for a particular administration's 
perspective and a lawyer for a President who is trying to 
achieve a certain set of goals.
    As a judge, you are on nobody's team. As a judge, you are 
an independent actor, and your job is simply to evaluate the 
law and evaluate the facts and apply the one to the other as 
best, as most prudently, as most wisely as you can.
    You know, the greatness of our judicial system lies in its 
independence, and that means when you get on the bench, when 
you put on the robe, your only master is the rule of law. And, 
you know, regardless what political administration you might 
have worked for in the past--and there are many Justices on the 
Court who have worked for--either for Congress or for the 
Executive, but just like all of them have, I would, if I am 
fortunate enough to be confirmed, you know, put on that robe 
and be independent and not favor any political party.
    Senator Kaufman. I mean, some of them--Sandra Day O'Connor 
even was an elected official herself.
    Ms. Kagan. Sandra Day O'Connor was an elected official 
herself. That is true. I will give you another example. It is a 
great example. He is actually one of my favorite figures in 
Supreme Court history, who is Robert Jackson. Robert Jackson 
was such an executive branch man. He had had a series of 
positions in the executive branch, including in my role, 
including as Solicitor General and Attorney General, and he was 
also in a way that very few Justices--well, a few, but he was 
very close personally to Franklin Roosevelt. Even before he had 
occupied this set of positions, they were real friends. And 
Justice Jackson, you know, he got to the Court, and the 
executive branch never counted on his vote. Quite the opposite, 
that he was as independent as they come. And, you know, the 
case that everybody knows about, of course--and it is kind of 
the iconic case--is what he did in Youngstown, where President 
Truman closes the steel mills and says that this is vital for 
the national security of the country, and the question comes to 
the Court. And I think for sure President Truman must have 
thought, Oh, well, you know, Robert Jackson will vote with me. 
And Robert Jackson did nothing of the sort. Robert Jackson 
voted against the ability of the Executive to take an action 
like that and wrote one of the--I think probably the strongest 
opinion ever written on the subject of executive power.
    So, you know, that is the kind of independence that I think 
a judge has to show, and I think--I think it is sort of a 
natural consequence of assuming that position.
    Senator Kaufman. I want to talk a little about Leegin. It 
has been talked about in a number of different places, and both 
sides--everyone on the Committee, I think, practically, has 
talked about precedent and stare decisis at least once in the 
last two or three Supreme Court hearings. So I think it an 
important case because it overturned 96 years of precedent.
    Now, the one point that--if Congress, you know, whether 
Congress has the right to make the facts or Congress has the 
right to make the rules, during this 96 years Congress could 
have changed this rule if they came up with a new economic 
theory, anytime they wanted to. Correct?
    Ms. Kagan. That is true, Senator Kaufman. I will push back 
a little bit, though, and say that the antitrust area is a kind 
of special area with respect to statutory interpretation that 
courts have been considered to have more common law power in 
this area because of the breadth with which and the generality 
with which the antitrust statutes are framed.
    Senator Kaufman. Right, but this is a new--a new economic 
theory is different than a new set of facts or new things we 
learn about as we go along. I am just making the point that 
Congress could have stepped in at any time during those 96 
years if they thought there was a new economic theory that was 
relevant and changed the law.
    Ms. Kagan. Congress surely could have stepped in at any 
point and, indeed, could do so now.
    Senator Kaufman. Right. And in Illinois Brick, another 
Supreme Court antitrust case, Justice White wrote, and I quote, 
``In considering whether to overturn precedent, we must bear in 
mind that considerations of stare decisis weigh heavily in the 
area of statutory construction where Congress is free to change 
this Court's interpretation of its legislation.''
    Do you agree with Justice White on that?
    Ms. Kagan. I think it is a longstanding principle, a very 
well accepted one, and I do agree with it, that stare decisis 
is at its highest in the area of statutory interpretation. And 
the answer is what you just gave, that, look, if the Court got 
it wrong, Congress can change it. And if Congress has not 
changed it, it suggests something, at least, about whether the 
Court got it wrong. And that is a very different kind of 
situation than when the Court makes a constitutional ruling, 
where the Court makes a constitutional ruling and everybody has 
to live with it and abide by it regardless whether it is wrong. 
Nobody can change it. So if it is really wrong or really 
unworkable, it is up to the courts. Not so with respect to 
statutes.
    Senator Kaufman. And Justice Roberts was right when he said 
stare decisis is not always the only consideration, just like 
you said in constitutional cases and other cases stare decisis 
does not overrule everything. But it is a major consideration.
    Ms. Kagan. Stare decisis is a major consideration, and it 
is at its height where statutes are concerned.
    Senator Kaufman. Right. I am concerned about Leegin because 
it seems to me an example--and this has been talked about by a 
number of my colleagues on both sides of the aisle, where you 
have results-oriented decisionmaking, and it just seemed to me 
five Justices decided to overturn precedent simply because they 
did not like the outcome that precedent dictated or the 
economic theory embodied, no matter what the Congress did. I 
mean, that just seems clear to me.
    Without regard to your views on Leegin, please tell us, if 
confirmed, what factors do you consider when you are asking to 
overturn a settled issue of statutory construction?
    Ms. Kagan. Well, I think that the factors would be the same 
as in a constitutional case, but then there would be--you would 
really, really, really have to find those factors. So the 
factors would be the workability of the precedent. If the 
precedent has just proved unworkable in the sense that courts 
struggle to apply the test and come up with widely differing 
results, it produces a kind of erraticism and instability in 
the law. That would be one.
    Another is if the precedent has been eroded over time, and 
that might be because it is eroded by other doctrinal change. 
Let us say one precedent is relied on in three other cases, and 
then two of those other cases have been reversed themselves, so 
the precedent is standing on nothing in the way of doctrine. 
That is an important consideration.
    Still a third is if the facts change such that a precedent 
becomes sort of silly, and the best example I can give you of 
that is in the search and seizure context. There used to be a 
rule that said something was only a search if there was an 
actual trespass on physical property. And then a case came 
along--it was the Katz case--which involved surveillance 
issues. And the Court said, well, wait a minute, why should we 
require a physical trespass on property? We have all these new 
technological ways of essentially invading people's privacy and 
searching them without doing the trespass, the sort of 
technology has overtaken the precedent, and that would be a 
situation in which the Court might reverse a precedent.
    So those are generally the circumstances in which that 
happens--lack of workability or a kind of erosion because of 
doctrinal change or because of change in factual circumstances 
in the world.
    But as I indicated before, you really, really have to be 
sure that one of those things exists, even more than in the 
constitutional context, when you are dealing in the statutory 
realm.
    Senator Kaufman. And how about the length of precedent? 
Would that be a factor----
    Ms. Kagan. I think it generally is. I think it generally 
is, just in the sense that it is at least true that the more 
times that a precedent is affirmed and reaffirmed and 
reaffirmed and nobody has found anything wrong with it, and to 
the contrary, maybe people have specifically reconsidered the 
precedent and said, yes, we think that this is a good 
precedent, that would be a factor.
    Senator Kaufman. I want to talk--another case that has been 
talked about--about Citizens United, and I hope I am going to 
be dealing with new ground based on what I have heard from the 
other questioners. But I think both Leegin, Citizens United, 
Exxon, these are all cases that everyone has been talking about 
in terms of where the Court has gone, and so I would just ask 
you: In the Citizens United case, there were two rounds of 
briefing and second oral argument in that case, right?
    Ms. Kagan. That is correct.
    Senator Kaufman. And who asked for the second round of 
briefing and oral argument?
    Ms. Kagan. Well, the Court did.
    Senator Kaufman. Right. So it was not the parties that 
asked for the thing. What question did the Court direct the 
parties to brief and argue?
    Ms. Kagan. I do not remember the exact phrasing, Senator 
Kaufman.
    Senator Kaufman. No, just in general.
    Ms. Kagan. The question of whether Austin and a part of 
McConnell should be reversed.
    Senator Kaufman. In your experience, is it unusual after 
briefing and argument for the Court to then direct the parties 
to brief and argue a different question, one drafted by the 
Court itself?
    Ms. Kagan. Well, it is unusual. It is not unheard of. It 
has happened in other cases as well.
    Senator Kaufman. But it is unusual?
    Ms. Kagan. It is unusual.
    Senator Kaufman. Is it fair to describe the question posed 
by the Court as a broader question of constitutional 
interpretation compared to questions first presented by the 
parties?
    Ms. Kagan. I think that the question that the Court posed 
had been in the initial complaint but had then been abandoned 
by the party's in the case. In the briefs that had been filed 
in the Court, the question and the argument came back in a few 
paragraphs, but that it was not the focus of the party's 
argument.
    Senator Kaufman. Without regard to this case--and just to 
go a little more into something you talked about with Senator 
Whitehouse, your view about judges choosing pretty narrow 
statutory ground for decision and broad constitutional ground 
for decision, can you just kind of sum up your feeling about 
that?
    Ms. Kagan. Well, I think that there is a longstanding 
rule--it is a sensible rule; it is a good rule for the judicial 
system--that to the extent one can, one should avoid 
constitutional questions, and that means that if one can, one 
should decide a case on statutory grounds.
    Now, that is not always possible.
    Senator Kaufman. Right.
    Ms. Kagan. Sometimes the statute does not allow it. You 
cannot make up a statute or recast a statute to make it mean 
something that it obviously does not mean just in order to 
avoid a constitutional question. But to the extent that it is 
reasonable to construe a statute in a way that avoids a 
constitutional question, it is, I think, a longstanding 
practice of judicial restraint to do so.
    Senator Kaufman. And is it fair to say that the ultimate 
ruling in Citizens United was not consistent with prior 
decisions based on corporate election expenditures?
    Ms. Kagan. Well, it certainly was not consistent with 
Austin or with the part of McConnell that was reversed. There 
was clearly an argument in the case as to what the other 
precedents held----
    Senator Kaufman. Right.
    Ms. Kagan--[continuing]. Whether those precedents were 
themselves anomalous or whether they were a part of a 
longstanding tradition. The Government had argued the latter.
    Senator Kaufman. To me it goes back to the same thing as 
Leegin. I think it is something that I have heard, again, from 
both sides of the aisle, kind of results-oriented judging, kind 
of reaching a decision, and then trying to figure out how to 
make it happen where you take a result and then you figure out 
how to manipulate it. I am not going to ask for your assessment 
on Citizens United and whether it was results-oriented judging. 
But talk a little bit about results-oriented judging.
    Ms. Kagan. Well, I think results-oriented judging is pretty 
much the worst kind of judging there is. I mean, the worst 
thing that you can say about a judge is that he or she is 
resulted-oriented. It suggests that a judge is kind of picking 
sides irrespective of what the law requires and that that is 
the absolute antithesis of what a judge should be doing, that 
the judge should be trying to figure out as best she can what 
the law does require and not going in and saying, you know, I 
do not really care about the law, you know, this side should 
win.
    So to be a results-oriented judge is the worst kind of 
judge you can be.
    Senator Kaufman. So, I mean, we have these issues, like 
results-oriented judging, precedent, stare decisis, where 
everybody on the Committee seems to agree. It is kind of 
remarkable how, when we look at individual cases, they are not 
taken into account. And I am not going to ask you to comment on 
that.
    Senator Hatch was concerned yesterday, I believe, that 
small business owners would not be able to express themselves 
politically without Citizens United. But under McCain-Feingold, 
there would not be any barrier for a small business person--
most of these like S corporations are just individuals. They 
could still give themselves a dividend, take the money and go 
out and spend it in political campaigns. Correct?
    Ms. Kagan. Senator Kaufman, in fact, this question did come 
up at the oral argument in the case, and I was asked a question 
about it, and I responded in a similar kind of way, that they 
could not do it through the--they could not spend through the 
corporation itself, but that they could spend individually.
    Senator Kaufman. The main thrust of this decision and all 
the discussion about this decision were corporations and labor 
unions with massive assets that they could then invest into a 
campaign without any Government supervision, not part of any 
kind of legislation, just spend whatever they wanted on that, 
and that was clear precedent that was not what we want in this 
country.
    Ms. Kagan. Well, it is certainly the way--when I argued the 
case--that I understood the Congressional Record, that when I 
looked at the Congressional Record and tried to portray to the 
Court what the Congressional Record was all about, that it was 
all about larger corporations and trade unions and the way in 
which they could inject money into the political system, and 
thereby change the outcomes of the political system.
    Senator Kaufman. Because really these institutions have 
massive amounts of money. I mean, this is not just--we are not 
talking about some little corporation. These people--these 
large institutions could spend hundreds of millions of dollars 
if they decided it was in their interest to do so and that that 
would completely overtake whatever individual expenditures we 
could have in this country.
    Ms. Kagan. Senator Kaufman, the argument that the 
Government made, which was based on Congress' own record, 
suggested that there was significant potential for corrupting 
influence in that way.
    Senator Kaufman. And the other thing that is key, I think, 
in this is it was not just corruption; it was the appearance of 
corruption. I am not one that thinks there is that much 
corruption----
    Ms. Kagan. Yes, and the appearance of corruption, and that 
has been something that the Court's decisions, Buckley v. Valeo 
has made clear is a compelling governmental interest, 
preventing either corruption or the appearance of corruption.
    Now, you know, the Citizens United Court found that the 
Government had not proved its case sufficiently and it had not 
shown to the high level that is necessary in the political 
speech context that these dangers would exist. And that is 
settled precedent going forward.
    Senator Kaufman. Right, and it really is quite 
extraordinary because I have not met anyone in the last 20 
years who does not think there is at least the appearance of 
corruption in the way we finance our campaigns. Not a single 
person. I mean, as soon as people find out that I teach about 
this or I worked here, they start talking about the 
appearance--they go more than the appearance, most people. So 
the idea that the Court could rule that there was not the 
appearance of corruption is really quite extraordinary.
    Let me talk a little bit about Exxon v. Baker. In Exxon v. 
Baker, the Court limited punitive damages in admiralty cases to 
no more than the amount of compensatory damages. That would 
mean Exxon ended up paying $2 billion less to victims than it 
otherwise would have. Right? Because of the ruling, they did 
not have to pay $2 billion in punitive damages.
    Ms. Kagan. Got it. Yes.
    Senator Kaufman. And because Justice Alito did not 
participate, it is also fair to say that four members of the 
Court voted completely to ban punitive damages, and if Justice 
Alito had voted the same way, that would have been no more 
punitive damages. Is that correct?
    Ms. Kagan. In this class of maritime suit, yes, I believe 
that that is right.
    Senator Kaufman. Which is kind of extraordinary, again, to 
me. I mean, I think that my experience has been--and I worked 
in corporations and the rest of it--that when you are trying to 
make a decision about safety or any other thing, kind of what 
the cost could be has to be a factor in your decision. And so I 
just wonder with the lack of punitive damages, if it had ruled 
in Exxon v. Baker, what kind of impact that would have in the 
gulf or what kind of decision has with British Petroleum or any 
other company trying to decide whether they are going to put in 
the necessary safety requirements to avoid a potential spill 
with liabilities, not just cost liabilities but also punitive 
liabilities.
    Let me talk about regulatory reform authority. As I said in 
my opening statement, I am concerned that in business cases the 
current Supreme Court too often seems to disregard settled law 
and Congressional policy choices, and you talked about that. 
And Congress is about to enact, we hope, an improved financial 
regulatory system. I want to make sure that the system is not 
undermined by judges who may have a different view of the 
proper role of Government regulation.
    Without asking you about that legislation, do you believe 
as a general matter Congress has the constitutional authority 
to regulate financial markets?
    Ms. Kagan. Congress has broad authority under the Commerce 
Clause, and certainly most regulation of financial markets that 
I could think of would substantially affect interstate 
commerce. It does not mean to say that there could not be 
something unconstitutional in this area as in any other, but 
the standard test is whether activity substantially affects 
interstate commerce. There are limits on non-economic activity, 
but presumably the regulation of financial markets would not be 
that.
    Senator Kaufman. Can you talk a little bit about what the 
judge's idea of the wisdom of a statute should play in the 
judge's decision?
    Ms. Kagan. I do not think it should at all, and I think--I 
guess I talked yesterday about Oliver Wendell Holmes, who was 
the Justice who in the early 20th century was most adamant that 
the Court was going down the wrong road in striking down a 
whole series of pieces of economic legislation. And what most 
people, I think, do not know about Justice Holmes is that he 
thought all this economic legislation was dumb. I mean, he was 
not in favor of these various pieces of progressive legislation 
for the most part, and, you know, notwithstanding that, he 
said, look, I might think that this legislation is unwise, but 
this is a choice for the American people; and, you know, if I 
am right and it turns out that they have done unwise things, 
they will correct it.
    And I think that that is what the attitude of judicial 
restraint--judicial deference to the democratic process really 
is. It does not matter whether you like the legislation or not. 
Not to say that courts do not have an important role. Courts do 
have an important role in policing those constitutional 
boundaries. But in fulfilling that role, you know, courts 
should realize that they are not the principal players in the 
game.
    Senator Kaufman. Let me talk about dean at Harvard. When 
you were dean at Harvard, what did you do to promote public 
service?
    Ms. Kagan. Well, I tried to do a lot because I think it is 
one of those things that, you know, public service--it is one 
of those things that, on the one hand, what our students find 
is that they do good for other people and that they also create 
meaningful professional lives for themselves. So working with 
quite a large number of people at Harvard, I think some of whom 
are here in the rows behind me, we tried to very much increase 
clinical opportunities to give people a sense of what it 
actually meant to do public service. I tried to use, you know, 
the bully pulpit whenever I could to talk about the importance 
of these issues. And I think we had good results, that the 
number of students who did clinical work in the law school went 
up very dramatically, that the number of students--I was 
speaking with Senator Cardin yesterday about our pro bono 
requirement, which says you have to do 40 hours of work in 
public service kind of activities, helping people who cannot 
afford legal services to get necessary legal services. You have 
to do 40 hours a week--excuse me, 40 hours by the time you 
graduate. Forty hours by the time you graduate. And students 
were doing an average of 500-some hours, so 10 times what they 
had to do. And I think that that was because they found it 
meaningful for themselves to see how their legal profession--
how their legal training could be used to help real people 
solve real problems, and I think it was great for the 
surrounding community. Harvard Law School is now the second 
largest provider of legal services in the State of 
Massachusetts, and I think that that is something that the 
school can legitimately be proud of.
    Senator Kaufman. Let me ask you--you know, large modern 
corporations are great, they are what make America great, and 
they provide jobs. But they also have vast resources at their 
disposal. What is the role of the Supreme Court in making sure 
that there is a level playing field between major corporations 
and the individual American?
    Ms. Kagan. Well, Senator Kaufman, I think that the role of 
the Court is to provide a level playing field for all 
Americans, and this is what I tried to convey in my opening 
statement, that the greatness of the Court and the greatness of 
the Court historically has been that no matter who you are, 
your arguments are considered with the same kind of respect, 
your arguments are given the same kind of attention, and if you 
are right on the law--and you have to be right on the law. But 
if you are right on the law, it does not matter that your 
opponent has a great deal more wealth or more power than you 
do.
    And one of the things that I found remarkable in my time as 
Solicitor General is I walk into that Court and I represent the 
Government. And people might think that the Government is kind 
of favored in the Court, but anything but. You know, the 
Government is given just as hard a time as every other 
litigant. In fact, I think some Justices actually think it is 
okay to give the Government a harder time. And I think that 
that is fine because the Government does have, you know, a lot 
of resources and a lot of ability up there.
    And so every single person who comes before the Court has 
to be treated equally, and every single claim has to be 
considered fairly, and whether you are a rich person or a poor 
person, whatever your race, whatever your religion, whatever 
your belief, you are entitled to the same kind of respect. And 
I think that the greatness of our court system historically has 
been that you have generally gotten it.
    Senator Kaufman. You spoke yesterday with reverence about 
Justice Marshall's reverence of the American judicial system. 
You have also written about it. I would like to read you one of 
your quotes. ``In Justice Marshall's view, constitutional 
interpretation demanded above all else one thing from the 
courts. It demanded that the courts show a special solicitude 
for the despised and disadvantaged. It is the role of the 
courts in interpreting the Constitution to protect the people 
who went unprotected by every other organ of Government, to 
safeguard the interest of people who had no other champion. The 
Court existed primarily to fulfill this mission.''
    Some of my colleagues have used this statement to attack 
Justice Marshall. Could you elaborate on what you said in that 
tribute and what it means to you as a nominee to the Supreme 
Court?
    Ms. Kagan. Well, what I was trying to say, Senator Kaufman, 
is really what I just said to you, that Justice Marshall lived 
in a time and he lived in a world and he lawyered in a world in 
which many doors were closed to him. And as he was trying to 
eradicate Jim Crow segregation, he was not met with much--you 
know, you could walk into the State houses and you could walk 
into Congress and you could walk into the White House, and 
there were not a whole lot of people who were willing to listen 
to the kinds of claims he was making, just claims for racial 
equality.
    And I think what he--the reason he revered the courts was 
that step by step by step over the years he did find success in 
the courts because the courts were willing to listen to those 
claims in a way that nobody else in the governmental system 
was. And he made great progress and did great justice of going 
to the courts and arguing his cases there and expecting no 
more--expecting no more than that the courts would rule on him 
if he was right on the law and on the meaning of the 
Constitution, but step by step by step, succeeding in that 
mission.
    Senator Kaufman. Thank you very much.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you very much, Senator Kaufman.
    We were just discussing the schedule up here. We will have 
Senator Franken's questions, and then we are going to take a 
very short break. There is a vote, I am told, at noon on 
General Petraeus. We have a couple people who will vote at the 
desk when it starts because we will not stop the hearing for 
the vote. People will go back and forth and vote and keep the 
hearing going. Then we will take a lunch break at an 
appropriate time.
    Senator Franken, you are on, and then we will take a break.
    Senator Franken. Thank you, Mr. Chairman.
    General Kagan, I really liked something you said yesterday 
in your conversation with Senator Kyl. You said that ``one of 
the glorious things about courts is they provide a level 
playing field in all circumstances.'' And that we need to 
``make sure that every single person gets the opportunity to 
come before the Court and gets the opportunity to make his best 
case and gets a fair shake.''
    I want to discuss something that is denying more and more 
working Americans that precious day in court, that fair shake--
and that is mandatory arbitration. Now, arbitration has its 
place, but I am talking about mandatory arbitration.
    Chances are if you have a cell phone or a credit card or if 
you work, you are likely to have signed a contract with a 
mandatory arbitration clause. These clauses basically say if we 
violate your rights, you cannot take us to court. You have to 
take it to an arbitrator. But then the fine print essentially 
says an arbitrator that we pay, who depends on us for work, and 
who makes decisions in secret.
    So a lot of people are denied their opportunity to come 
before the court. Unfortunately, we have seen a series of 
decisions from the Supreme Court that have made it even harder 
for people to get that fair shake, as you put it.
    In 2001, in a case called Circuit City, the Court was asked 
to decide whether workers' employment contracts could be 
subject to mandatory arbitration. This really should have been 
a no-brainer because the Federal Arbitration Act of 1925, the 
law that says which arbitration agreements should be enforced, 
specifically exempts ``contracts of employment of seamen, 
railroad employees, or any other class of workers engaged in 
foreign or interstate commerce.''
    Organized labor had asked for this specific language to be 
included to make sure the Act would not apply to workers' 
employment contracts. In fact, then-Commerce Secretary Herbert 
Hoover said during a Senate hearing, ``If the objection appears 
to the inclusion of workers' contracts in the law's scheme, it 
might well be amended by stating that nothing herein contained 
shall apply to the contracts of employment of seamen, railroad, 
employees, or any other class of workers engaged in interstate 
commerce.''
    Secretary Hoover was saying that if Congress wanted to make 
clear that the Federal Arbitration Act did not apply to 
employment contracts, Congress should put this language in the 
statute. So Congress put the language in the statute.
    But when Justice Kennedy wrote the majority opinion in 
Circuit City, he ignored the history. He wrote, and I quote, 
``We need not assess the legislative history of the exclusion 
provision.''
    Let me repeat that. ``We need not assess the legislative 
history of the exclusion provision.''
    And based on a strained reading of the law, he decided that 
the exception only applied to workers in the transportation 
business, not any class of workers. This means that instead of 
all workers getting their day in court like Congress clearly 
intended, only transportation workers would get it, and that 
excludes the vast majority of American workers.
    General Kagan, I really disagree with this case and the way 
the Court ignored Congress' intent. That is why I was glad to 
hear your response to one of Senator Schumer's questions about 
how the Court should interpret statutes. You said that, among 
other things, ``I think a judge should look to the history of 
the statute in order to determine Congress' will.''
    General Kagan, we spend a lot of time in hearings and on 
the floor debating legislation. How much weight do you think a 
judge should give to the deliberations of Congress and the 
reasons why we passed the law in the first place?
    Ms. Kagan. Well, Senator Franken, the most important thing 
in interpreting any statute--in fact, the only thing that 
matters in interpreting any statute is Congress' intent. 
Congress gets to make the laws under Article I of the 
Constitution, and what the Court should be doing in applying 
those laws is trying to figure out what Congress meant and how 
Congress wanted the laws to be applied. And that is the only 
thing that the Court should be doing.
    Now, sometimes that can be a difficult task. New situations 
come up. The statutory language, it is not clear how the 
statutory language applies to those new situations. Or 
sometimes Congress might simply not have thought of particular 
situations. Language is by necessity inexact. And so there are 
going to be cases which----
    Senator Franken. Do you agree with Justice Kennedy we need 
not assess the legislative history of something?
    Ms. Kagan. Well, I would say this. I would say where the 
text is clear a court should go with the text. Where the text 
clearly covers some situation, the Court should do that. The 
Court should not rewrite the law.
    Senator Franken. But shouldn't the Court assess that, make 
an assessment there?
    Ms. Kagan. Well, I think if the text is clear, Congress 
should not--the Court should not rewrite the law. But where the 
text is ambiguous, which often happens----
    Senator Franken. And wouldn't you have to assess whether it 
is ambiguous?
    Ms. Kagan. Yes. I mean, the first step----
    Senator Franken. So what Justice Kennedy said does not 
quite stand up to that, does it?
    Let me move on on that. We in Congress, we want to make 
sure, all of us, that our intentions are clear so that 75 years 
from now the Supreme Court does not just ignore the purpose 
behind the laws we are passing. How can we do that? How do we 
do that? How do we make it clear to future Justices?
    Ms. Kagan. Well, the Court surely would be helped if 
Congress spoke as precisely and exactly and as comprehensively 
as it could in all situations. You know, there are some 
instances where the Court just has legitimate difficulty trying 
to figure out what Congress intended, and where judges--all of 
whom agree that what they should be doing is doing what 
Congress intended--have difficulty determining that or disagree 
about what that means. And certainly to the extent that 
Congress can make its intentions clear in legislation and can 
specifically spell out how it intends for the law to operate, 
Congress ought to do so.
    And, of course, you know, to the extent that the Court gets 
something wrong with respect to a statute--and this has 
happened, you know, many times in recent years and in prior 
years as well. To the extent that the Court gets something 
wrong, of course, Congress can come back and change it and make 
it clear that the Court got it wrong and also use it as an 
opportunity even to make clear its intentions with respect to a 
general area of law.
    Senator Franken. OK. It is hard to do 78 years from now, 
but we will try.
    Circuit City was a Rehnquist Court decision. Just last 
week, the Roberts Court did Circuit City one better in helping 
employers keep their workers out of court and into arbitration. 
It happened in a case called Rent-A-Center v. Jackson, which 
Senator Feingold noted yesterday. Rent-A-Center had 21,000 
workers and hundreds of millions of dollars in annual profits. 
It also forces its workers to sign a mandatory arbitration 
agreement as a condition of employment.
    Antonio Jackson, an African-American account manager in 
Nevada, had been working for Rent-A-Center for years, but he 
was frustrated because he watched his company pass him over for 
promotions again and again. Instead, they promoted workers who 
had less experience and who were not black. Although Jackson 
signed an employment contract agreeing to arbitrate all 
employment claims, this seemed blatantly unfair, and he sued 
Rent-A-Center.
    But the company argued that only the arbitrator could 
decide whether the arbitration clause was unfair.
    Let me repeat that: Rent-A-Center argued that only the 
arbitrator could decide whether the arbitration clause was 
unfair.
    Last week, the Roberts Court sided with Rent-A-Center. Talk 
about not getting your day in court. Now you cannot get your 
day in court to get your day in court.
    Now, General Kagan, I know I probably cannot ask you about 
whether you think this case--well, I can ask you, but you will 
not answer--whether this case was correctly decided, but I 
would like to ask do you still agree with what you said 
yesterday to Senator Kyl, that ``one of the glorious things 
about courts is that they provide a level playing field in all 
circumstances.'' And that we need to ``make sure that every 
single person gets the opportunity to come before the court and 
gets the opportunity to make his best case and gets a fair 
shake'' ?
    Ms. Kagan. Well, I do agree with that very strongly, 
Senator Franken, and if I might, if I might just return to this 
question of statutory interpretation that you started off with, 
because I did want to make clear that when a text is ambiguous, 
which, you know, frequently happens--which frequently happens--
that I think that the job of the courts is to use whatever 
evidence is at hand to understand Congress' intent. And that 
includes exploration of Congress' purpose by way of looking at 
the structure of the statute, by way of looking at the title of 
the statute, by way of looking at when the statute was enacted 
and in what circumstances, and by way of looking at legislative 
history.
    Now, I think courts have to be careful about looking at 
legislative history and make sure that what they are looking to 
is reliable. But courts should not at all exclude signs of 
congressional intent and should really search hard for 
congressional intent when the text of the statute itself is 
unclear.
    Senator Franken. Good. Then I think you and I agree that 
Justice Kennedy may have been in error when he said that the 
Court does not have to assess the legislative history.
    Ms. Kagan. Well, I suspect that--I do not know the case 
very well. I suspect that Justice Kennedy may have meant that 
he thought that the text was clear and, therefore, the 
legislative history was not something that should appropriately 
be explored. But I am just guessing on that.
    Senator Franken. OK. I think you are guessing wrong.
    Ms. Kagan. OK.
    [Laughter.]
    Senator Franken. General Kagan, you have gotten a lot of 
questions about----
    Ms. Kagan. It is not the first time in my life.
    Senator Franken. Nor the last. We all guess wrong.
    You have gotten a lot of questions about Citizens United. I 
am going to try to bore down a little deeper on this. First I 
want to make it totally clear that a full 80 percent of 
Americans that hear about this case just think it is a bad 
idea. The first problem is the impact it is going to have on 
our communities and our ability to run those communities, 
because the potential for corporate influence on our elections 
under Citizens United is going to dwarf what it is today and 
may very well totally drown out individual citizens.
    Before Citizens United, if a corporation wanted to run an 
ad that said ``Vote for Joe,'' it could only use money from its 
political action committee, or PAC. Those PACs relied on 
donations from employees and executives, individuals in those 
corporations. In the 2008 cycle, all Federal PACs combined 
spent a total of $1.2 billion. Now, after Citizens United, if a 
corporation wants to run an ad that says ``Vote for Joe,'' it 
can use all of its money--its treasury funds, its revenues, all 
of its money. In the 2008 cycle, the combined gross revenue for 
Fortune 100 companies was $13.1 trillion. Now, obviously, they 
are not going to spend all that money on ads or all of it on 
just any election. They would spend a lot--but they can spend 
billions. They could have spent under this law billions when we 
tried--when we passed the law that took the lead out of 
gasoline, when we passed the law that required seat belts, and 
they are going to spend it when we try to protect against oil 
drilling in deep water when we do not have safety precautions 
or Wall Street fraud. They are going to spend their money 
against the consumer and environmental laws that protect our 
families and our homes.
    General Kagan, this is one of the last things that Justice 
Stevens said in his dissent: ``At bottom, the Court's opinion 
is a rejection of the common sense of the American people who 
have recognized the need to prevent corporations from 
undermining self-government since the founding.''
    What do you think that means, General Kagan?
    Ms. Kagan. Well, Senator Franken, when I argued the case, I 
thought that the strongest argument of the Government was the 
very substantial record that Congress puts together, which I 
think reflected the sense of the American people that these 
monies from these actors spent in this form could have 
substantial corrupting effect on the political process. And 
that is the argument that the Government made to the Court.
    Now, as I have indicated before, I approach this case as an 
advocate, not as a judge, and there are certainly strong 
arguments on the other side as well. And in particular, there 
is the fact that political speech is the highest form of speech 
under the First Amendment entitled to the greatest protection, 
and that the courts should be wary of Congress regulating in 
this area in such a way as to protect incumbents to help 
themselves. And I think that those are strong arguments.
    The argument that the Government made in defense of the 
statute as against that was really an argument about the 
strength of the governmental interest involved in this case in 
preventing corruption from this kind of expenditure of money.
    Senator Franken. General Kagan, another problem with 
Citizens United was how it was decided, because it was decided 
in a manner that was really unfair to the American people, and 
let me explain.
    When you go to trial, you make arguments and you introduce 
evidence to back up those arguments. Now, you cannot introduce 
evidence after trial, so if you appeal, you cannot just come up 
with a new argument because the appeals court does not have any 
evidence to decide it on.
    This is why there is an old rule that the Supreme Court 
should not answer questions they are not asked. Or as Justice 
Scalia said to you in your first oral argument on this, ``We 
are not a self-starting institution. We only disapprove of 
something when somebody asks us to.''
    If the Court expands the scope of the question before it--
this is me now--it will not have the evidence it needs to 
decide that question. But that is the opposite of what the 
Court did in Citizens United. In Citizens United, the plaintiff 
argued and presented evidence on this question: Should a 
certain part of McCain-Feingold apply to certain kinds of 
nonprofits? And that is not the question that the Roberts Court 
answered.
    This is how the Roberts Court answered: No, McCain-Feingold 
should not apply to nonprofits or for-profits or unions, and 
neither should a different law that Congress passed 40 years 
ago. In fact, both of those laws are unconstitutional for 
everyone.
    Because the Roberts Court answered a question it was not 
asked, it never got evidence on how McCain-Feingold was 
actually affecting most nonprofits or any for-profit 
corporation or union.
    This is what you said in the case, in your argument--or 
this is what you said actually here in the hearing: ``What the 
Government tried to argue in Citizens United was that Congress 
had compiled a very extensive record about the effects of these 
expenditures by corporations and unions on the political 
process. And what the Congress had found was that these 
corporations and unions had a kind of access to Congressmen, 
had a kind of influence over Congressmen that changed outcomes 
and that was a corrupting influence on Congress. That was a 
many, many thousand page record.''
    So this finding of fact was ignored because it had to be. 
As Justice Stevens said, ``the record is not simply incomplete 
or unsatisfactory. It is non-existent.''
    General Kagan, you were criticized at the beginning of this 
for being outcome-or results-oriented, especially in your bench 
memos to Justice Marshall. How is this for guaranteeing an 
outcome? You wait until the case is out of the trial court. You 
wait until it is too late to submit evidence. You wait until 
the institution that wrote the law can no longer submit 
evidence. You wait until the appeal has been argued in the 
circuit court. You wait until the oral argument before the 
Supreme Court--you wait until the argument, oral argument 
before the Supreme Court. And then you change the issue under 
consideration to get the outcome you want. If that is not 
outcome-oriented, I do not know what is.
    I would love to ask you if you agree, but, you know, I do 
not want to force you to criticize your future colleagues. So 
instead let me see if you agree with some general statements of 
law.
    In general, do you agree with Justice Scalia that the 
Supreme Court is not a self-starting institution that should 
only disapprove of something when somebody asks it to?
    Ms. Kagan. That is certainly true. It is a basic postulate 
of the way we run our judicial system that the Court does not 
issue advisory opinions, that the Court does not issue opinions 
on anything except what is necessary to decide a concrete case 
or controversy before it.
    Senator Franken. OK. How about this? Here is something that 
Chief Justice Roberts said when he was a circuit court judge. 
He said, ``If it is not necessary to decide more, it is 
necessary not to decide more.'' Do you agree with that?
    Ms. Kagan. I do agree with that, Senator Franken. That, 
too, is a basic principle of our legal system. It is a 
requirement of--or it is a foundation stone of judicial 
restraint.
    Senator Franken. Well, I am glad you agree with that.
    Do you agree with Chief Justice Roberts that courts should 
decide matters as narrowly as possible?
    Ms. Kagan. Yes, I do, Senator Franken, in part for the 
reasons I was discussing with Senator Whitehouse, that this 
leads to a kind of restrained decisionmaking in which consensus 
can be most easily achieved and appropriate and restrained 
outcomes most easily reached.
    Senator Franken. OK. I would be the last person to draw 
conclusions from your answers. But----
    [Laughter.]
    Senator Franken. To be honest, in Citizens United I do not 
think Justice Stevens--I am sorry, Justice Scalia or Chief 
Justice Roberts adhered to their own principles. I think they 
were legislating from the bench.
    I want to talk about--a lot of people talked about Exxon, 
but there are a couple of other Supreme Court decisions that 
dramatically weakened our ability to protect the environment. 
Senator Feinstein asked you about one of those cases yesterday, 
the Rapanos case, and you said that you were not familiar with 
it. So let me just summarize it very quickly.
    In Rapanos, the Supreme Court looked at what kinds of 
wetlands are protected in the Clean Water Act. After Congress 
passed the Act in 1972, the EPA and the Army Corps of Engineers 
passed regulations to enforce it. Basically, the Act said that 
it covered navigable waters. But the Army Corps realized that 
to protect those navigable waters, it also had to protect the 
wetlands and streams that fed into or were near those navigable 
waters, you know, because it is water. And so they did.
    The Corps extended coverage to those waters, too, but in 
Rapanos the Court struck down these regulations because it said 
they were too broad even though they had been placed for up to 
30 years and were actually necessary to protect America's 
water. And this water is what people drink, people catch fish 
in, and that our kids swim in.
    Thanks to this case and a similar case known as SWANCC, the 
Clean Water Act now does not cover half of the nation's largest 
polluters, and thanks to these cases, a lot of western 
Minnesota is outside the protection of the Clean Water Act, and 
so is a large part of the Gulf Coast.
    Yesterday you discussed the Chevron doctrine with Senator 
Feinstein. As you explained, Chevron says that the courts 
should generally defer to agencies and their regulations 
because ``Congress would have wanted that the entity with 
political accountability and expertise to make the decision 
rather than the courts.''
    So let me ask you a few questions. General Kagan, can you 
tell me how many of the Supreme Court Justices have a degree in 
the environmental sciences?
    Ms. Kagan. Well, gosh, I do not know, Senator Franken.
    Senator Franken. I do not either. I think it is none.
    Ms. Kagan. Okay.
    [Laughter.]
    Senator Franken. Can you tell me do they have a degree in 
public health? We are going to both guess together.
    Ms. Kagan. I will guess none.
    Senator Franken. That is what I would guess, too.
    Now, of course, the Court has to make decisions in areas 
where they do not have expertise or personal knowledge. But 
when they rewrote the Army Corps of Engineer regulations on 
wetlands, the Roberts Court did not have any special subject 
matter expertise on that issue.
    General Kagan, what does Chevron protect if it does not 
protect regulations issued 30 years ago that were never 
questioned by Congress and were enforced repeatedly during that 
period?
    Ms. Kagan. Well, Senator Franken, Chevron says that where 
there is ambiguity in a Congressional statute--where there is 
not ambiguity, you just go with what the statute says; but 
where there is ambiguity, that an agency's interpretation of 
what Congress intended for a statute to mean should receive 
deference from the courts. And the idea really is that the 
agency is better able to clarify that ambiguity because it has 
a kind of expertise in the area and also because it has real 
political accountability through the President, and the courts 
have neither expertise in one of these various technical 
subjects, nor do the courts have electoral legitimacy. The 
courts are by design cut off from the people.
    So for both competence reasons and legitimacy reasons, 
Chevron says, as between courts and agencies in interpreting 
unclear statutes, you should give the nudge to agencies, that 
courts should defer to their decisions. It is actually a 
Justice Stevens opinion. I think it is one of the most cited 
cases, maybe the most cited case in Supreme Court history.
    Senator Franken. And yet in this case, the Court did not 
give deference to that, did it?
    Ms. Kagan. Senator Franken, as I indicated to Senator 
Feinstein, I have not read this opinion ever. I think that, you 
know, this might be one where----
    Senator Franken. If you trust me on my description of it, 
which is--oh, never mind. Why would you do that?
    [Laughter.]
    Senator Franken. OK. Let us say my description was 
accurate. Does it strike you that maybe they did not give 
proper deference--I know it is a hypothetical, but my 
description would be accurate.
    Ms. Kagan. You know, I have been an administrative law 
professor, and Chevron is actually something that I have 
written a good deal about, and I think I have written about it 
in a--beyond the fact that Chevron is obviously settled law, 
going forward, I have to say if you look at my writings on 
administrative law, you know that I am a sympathizer with 
Chevron for the kinds of reasons that I just suggested.
    Senator Franken. Thank you. Thank you for your indulgence, 
and I have a minute and 15 left. You know what? I am going to 
yield that time.
    [Laughter.]
    Ms. Kagan. That is very good of you.
    Chairman Leahy. We have talked a great deal about precedent 
here, Senator Franken. I hope that is a precedent others will 
follow.
    You know, I am one of these people who is always hopeful. 
Sometimes my hopes are dashed. But, in any event, we will take 
a very brief break, and then we will come back.
    [Recess 11:01 a.m. to 11:24 a.m.]
    [AFTER RECESS]
    Chairman Leahy. We'll have the nominee back and we will--
now Senators will have up to--up to--20 minutes to ask 
questions in the second round. I emphasize the ``up to'', and I 
hope any Senator who feels that they don't--especially as most 
questions have been asked--I realize not everybody's asked 
them--if they don't feel that it's necessary to go and repeat 
some things, they might not use all their time. But we're doing 
this so we can finish with the nominee today, and then we have 
outside witnesses.
    Both Republicans and Democrats have outside witnesses. We 
have to figure out when we can use them. All of this, because 
of the change in the schedule with the Byrd memorial. We've 
been asked not to hold hearings from 10 a.m. to 4 p.m. tomorrow 
when he's lying in repose in the Senate chamber, then of course 
on Saturday, or Friday and Saturday, there are memorial 
services. So I will reserve my time and I yield to Senator 
Sessions.
    Senator Sessions. Thank you, Mr. Chairman.
    Solicitor General Kagan, I enjoyed our conversation 
yesterday, but was disappointed a bit with regard to how you 
describe the situation at Harvard and the blocking to the 
military to have full and equal access to the recruiting 
offices, as required by law.
    I think that the White House has been spinning that story 
inaccurately, and I believe your testimony was too consistent 
with an inaccurate spin and didn't, frankly, set forth what you 
did. I was a bit disappointed at that.
    I'd like to follow up and go in a little different 
direction today. Ironically, and almost amazingly, it fell on 
your lot as Solicitor General to defend that very law, the law 
of the United States, the ``don't ask/don't tell'' law that you 
opposed so much there.
    Let me focus on your responsibility and how you handled it. 
During your confirmation process, you stated that your ``role 
as Solicitor General, however, would be to advance not my own 
views, but the interests of the United States'', and that you 
were ``fully convinced that you could represent all of these 
interests with vigor, even when they conflict with my own 
opinions.'' I think that was the right position, the only 
position, you could take if you were to assume that office.
    And because of your widely publicized opposition to the 
``don't ask/don't tell'' law and to the Solomon Amendment, you 
were specifically asked at the hearing if you would be able to 
defend those statutes as Solicitor General and you said that 
you would. You said that your approach ``to cases involving 
challenges to the statute involving don't ask/don't tell 
``policy would be the same, and that you would ``apply the 
usual strong presumption of constitutionality'' as reinforced 
by the ``doctrine of judicial deference to legislation 
``involving military matters.''
    Now, during your time as Solicitor General, two cases came 
before you challenging ``don't ask/don't tell.'' They came up 
from the Federal Courts of Appeals. One case was from the First 
Circuit in Boston, your circuit, filed by 12 plaintiffs, 
individual different plaintiffs. The ACLU and your former 
colleague, Lawrence Tribe, represented that group.
    A second case, Witt v. Department of Air Force, came out of 
the Ninth Circuit. It was filed by a single plaintiff, and the 
ACLU was the attorney in that case, or one of the attorneys in 
that case.
    So in both cases the plaintiff argued that the Supreme 
Court's recent decision in Lawrence v. Texas meant that the 
``don't ask/don't tell'' law, which says that people who are 
openly homosexual may not serve in the Armed Forces, should be 
struck down as unconstitutional. In the First Circuit case the 
court upheld ``don't ask/don't tell.'' The Plaintiff said the 
law was unconstitutional as applied to them. The court agreed 
that Lawrence v. Texas called for elevated scrutiny, but upheld 
the statute at that time.
    But the Ninth Circuit did not approach it in that way. They 
did not apply the traditional deference to military issues, as 
did the First. The Ninth Circuit invented a new standard of 
review for the substantive due process challenge, requiring the 
government to make detailed individual findings in these cases.
    Most importantly, unlike the First Circuit, the Ninth 
Circuit failed to acknowledge the need for uniformity in 
military policies, and so the court held that the plaintiff was 
entitled to a full trial, and that every plaintiff, apparently, 
would be entitled to a full trial, something that the military 
had been resisting steadfastly for a number of years.
    And so in the First Circuit case, interestingly, 11 of the 
12 plaintiffs didn't ask for review, even though they had lost 
the case. I can only assume it's because they were concerned 
they may lose the case if the Supreme Court took it and had a 
clear view of the law. They had, as you know, upheld the 
Solomon Amendment eight to nothing, and I think, based on their 
history, we could expect the Supreme Court to affirm that 
statute, in my personal judgment.
    So you told the Supreme Court they should not take the case 
up. One plaintiff did ask that it go up. And you contended that 
the Ninth Circuit was a better vehicle, and the Ninth Circuit 
case, shortly before that moment, had already been remanded to 
the trial court to conduct a significant trial that was 
contrary to the position that the Department of Defense had 
been taking. Indeed, it would be difficult, if not impossible, 
to enforce the ``don't ask/don't tell'' law if you have to have 
an individual trial in all of these cases.
    So it was a severe, damaging blow to the Department of 
Defense, and the Ninth Circuit law would control 40 percent of 
America. It's the biggest circuit of all. So the result was, 
neither case was appealed on the law and the position which was 
contrary to the consistent position of the military, and it 
undermined their ability to have, I think, an effective 
enforcement, and even and fair enforcement, of the policy.
    So I guess I would ask you why you made that decision. It 
means it's important to me, based on your representation to the 
court, that I'll understand that you were fully committed to 
vigorously defending that law, because I think that was your 
responsibility. It was an oath you took.
    I'm having a difficult time of understanding why, even 
though it would have been an interlocutory appeal--I know it 
would have been--but it was an interlocutory appeal of the 
Third Circuit case that the Supreme Court took and promptly 
reversed their decision. So I guess I'd just like to hear you 
state, in as much specificity as you can, why you felt it 
necessary not to appeal either one of these cases.
    Ms. Kagan. Sure, Senator Sessions. I think that we have 
acted, I have acted, in the Solicitor General's Office 
consistently with the responsibility, which I agree with you 
very much that I have, to vigorously defend all statutes, 
including the statute that embodies the don't ask/don't tell 
policy.
    So let's take the Pietrangelo case first, which was the 
First Circuit case, where the First Circuit upheld the don't 
ask/don't tell policy. Mr. Pietrangelo brought a challenge to 
that decision. The question was, you know, he was challenging a 
decision that the government very much approved of, which was a 
decision that upheld the don't ask/don't tell policy. And we 
told the court in no uncertain terms not to take the case, and 
we defended the statute vigorously. We told the court not to 
take the case because the statute was constitutional.
    So in that Pietrangelo brief that I filed, and it's a brief 
on which I'm counsel of record, the--the argument is made 
vigorously that the don't ask/don't tell statute is fully 
constitutional given the appropriate standard of review, and 
particularly given the deference that courts properly owe to 
the military.
    So the Pietrangelo brief is a brief--and again, I'm counsel 
of record on that brief--in which the U.S. Government 
vigorously defended the don't ask/don't tell policy--and 
statute, more importantly -and told the court not to take a 
case which challenged a decision upholding that statute.
    Now, as to the second matter, the Witt matter, as--as--as 
you said, the Witt matter is interlocutory in nature. And what 
that means, for people who aren't familiar with these legal 
terms, is that it means that the case is in the middle and that 
the government can, after remand at a later stage, continue to 
defend the don't ask/don't tell statute in this very case.
    Now, we engaged in very serious discussions with the 
Department of Defense about the appropriate approach here in 
order to defend the don't ask/don't tell statute, because I 
agree with you, Senator Sessions, that the Ninth Circuit 
decision undercuts that statute. It makes it harder for the 
government to carry out its policies under that statute.
    And the question that we had to decide was whether to 
challenge that Ninth Circuit decision, which I think does--is 
in real tension with the don't ask/don't tell statute. 
Whether--the question we had to decide was whether to challenge 
that Ninth Circuit decision at an early stage or at a late 
stage of the case. It was a matter of timing. And we talked a 
good deal about this, of course, amongst ourselves, but also 
with the Department of Defense, and we decided that the better 
course was actually to wait on it and to accept the court's 
remand. The case is not at all closed. Instead, the case is on 
remand in the--in the District Court to take that remand, and 
in the event that we didn't win the case on remand or in the 
Ninth Circuit again, in that event, then have the option to, 
and presumably would, take the case to the Supreme Court to 
challenge the Ninth Circuit's holding.
    And when we did this, we wrote a letter to the Judiciary 
Committee. It's called a 530 D letter, which is a letter which 
the Justice Department writes whenever there's a moment at 
which it does not--does--does not contest a decision that is 
inconsistent with a Federal statute. We wrote a 530 D letter to 
the Senate Judiciary Committee and we basically laid out this 
explanation.
    We basically said, we still have the opportunity to 
approach the court and ask the court to take certiorari in this 
case, and we presume that we will use this opportunity if we 
don't get the case dismissed in the District Court, but that we 
think it's actually better to go to the District Court, to take 
the remand, and then to come back to the Supreme Court if it's 
necessary to do so.
    And the reason that that approach was chosen was because we 
thought that it was--it would be better to go to the Supreme 
Court with a fuller record, and with a fuller record about the 
particular party involved, maybe more importantly, with a 
record that would show exactly what the Ninth Circuit was 
demanding that the government do.
    Because what the Ninth Circuit was demanding that the 
government do was, in the government's view and particularly in 
DoD's view, a kind of strange thing where the government would 
have to show, in each particular case, that a particular 
separation caused the military harm rather than to view it in 
general across the statute.
    One reason we thought that the remand would actually 
strengthen the case in the Supreme Court was because the remand 
would enable us to show what this inquiry would look like, what 
the Ninth Circuit's--the inquiry that the Ninth Circuit 
demanded would look like, and to suggest to the Supreme Court, 
using the best evidence there was, how it was that this inquiry 
really would disrupt military operations.
    So that was our decision-making process. It was, as I say, 
a decision-making process that we wrote about to Congress when 
it occurred, and stated specifically that this was a timing 
issue for us, that we were not going to the Supreme Court at 
the earliest possible moment, but instead waiting.
    And I should just put one other factor into the mix which I 
left out along the way, which is that there is a Supreme Court 
presumption that cases should not be taken in an interlocutory 
posture, that instead the Supreme Court ought to--that the 
Supreme Court ought to wait and that parties ought to wait 
before asking the Supreme Court to take a case until the case 
is sort of well and truly over, when it's not in the middle of 
things.
    Now, I don't want to overstate that. That's a presumption. 
It's not a flat rule. It's a presumption against interlocutory 
review, but it was something that we weighed in the balance. 
Here we had a presumption against interlocutory review and we 
had some good reasons for thinking that our case would be made 
stronger if we did not take the case in an interlocutory 
posture, but instead waited for the remand to be completed 
before we went to the court and asked the court to review the 
Ninth Circuit decision.
    Senator Sessions. Well, I appreciate that position. I will 
look at it and review it. It does appear, however, that your 
position was in harmony with the position that the ACLU took, 
who was on the other side of the case. And I see no harm in 
taking and attempting an interlocutory appeal. I do note that 
they took it in the Third Circuit Solomon Amendment case and 
promptly reversed--you know, rendered a decision consistent 
with the government's position.
    I think the last refuge of a big government scoundrel is 
the Commerce Clause, it seems. Everything, when you have no 
other peg to hang your hat on, you claim that it impacts 
commerce. You cited yesterday the Lopez and Morrison case a 
number of times, which seems to defend legitimate--say that 
legitimate regulations defended under the commerce clause must, 
wonder of wonders, deal with economic commercial-type matters.
    I guess, first, have you ever commented--and you cited 
that--to Senator Coburn, I think, and to others, that this 
could have an impact on his question, which dealt with, could 
you tell an individual American how many vegetables they should 
have for lunch every day, or something to that effect.
    What's your view? Have you expressed any opinions 
previously on Lopez and Morrison? They were very controversial 
at the time. And do you agree with those 5-4 decisions?
    Ms. Kagan. Gosh, I don't think that I've expressed any 
views in my academic writing or anything I can think of on 
Lopez and Morrison. You know, I've given a lot of speeches in 
my life, but, you know, I can't think of any place where I 
specifically addressed those issues. I think that they are 
settled law, that they are part of the jurisprudence of the 
Commerce Clause going forward.
    Senator Sessions. Could I ask you about that? You've said 
that it's settled law with regard to the gun case, Chicago, 
McDonald, and Heller. Those were 5-4 cases. Does your 
definition of settled law mean anything more than the normal 
precedent you would give to any of those kinds of 5-4 cases?
    Ms. Kagan. I think I've actually used that phrase with 
respect to a number of cases which people have asked me about. 
Those are a couple, but there are----
    Senator Sessions. I thought you used the phrase 
interchangeably: precedent, which has a certain amount of 
power, and then you've thrown out settled law. To the layman, 
it seems to be a more firm acknowledgement of the power of that 
ruling. But I want to know, do you mean any difference when you 
use those two phrases?
    Ms. Kagan. I don't mean any difference. What I mean to say 
when I use those phrases is, these are decisions of the court. 
They are decisions of the court that are entitled to all the 
weight that any decision of the court has as precedent going 
forward, that I have no thought, no agenda, no purpose, no--you 
know, remotely no plan to--to--to think about reversing any of 
them, that these are cases that I accept as decisions of the 
court going forward.
    Senator Sessions. All right.
    Justice Sotomayor said a similar thing about the Heller 
case, and it didn't bother her one bit being the dissent in the 
McDonald case Monday. So you're not saying that you're binding 
yourself to be a 6-3 vote with now six members of the Supreme 
Court on the gun cases, and you're not binding yourself and 
suggesting you feel bound by Lopez and Morrison, are you?
    Ms. Kagan. Senator Sessions, it wouldn't be appropriate for 
me to bind myself with respect to any future case that came 
before me. It wouldn't be appropriate for me in any case to 
say, oh, I promise that I'm going to take a case like that and 
do X, Y, Z with it. That wouldn't be appropriate.
    Senator Sessions. Well, I think that's what I expected. I 
think any--I think you'll go to the court free to vote either 
way on any of those cases, and we should fully understand it.
    Thank you.
    The Chairman. Thank you very much. I'm still withholding my 
time, but I will take a minute of my time to put into the 
record a letter sent to Senator Sessions and myself, letters of 
support for the Solicitor General. We got this from First 
Lieutenant David Tressler, who's currently deployed with the 
U.S. Army Reserve in the coast region province in Afghanistan. 
First Lieutenant Tressler is a 2006 Harvard Law School 
graduate. He was recruited by the military during Solicitor 
General Kagan's tenure as dean, enlisted in the Army Reserve 
after his graduate. He's now employed at a combat outpost in 
Afghanistan.
    Senator Graham has been in that area, as I have, and 
several others know it. He writes, ``There was a legitimate 
legal debate taking place in the courts over the Solomon 
Amendment. When court decisions allowed in 2004, Kagan made a 
decision to uphold the school's anti-discrimination policy. 
Military recruiters were never banned from the campus. During 
the brief period when recruiters were not given access to 
students officially through the law at the school's Office of 
Career Services, they still had access to students on campus 
through other means.
    Immediately following this period in 2005, more graduating 
students joined the military--more graduating students joined 
the military in any year this decade. ``Her'', meaning you, 
``position on the issue was not anti-military and did not 
discriminate against members or potential recruits of the 
military, nor do I believe that they denied the military much-
needed recruits in a time of war.''
    He continues, ``I've heard the Solicitor General Elena 
Kagan speak several times about this issue. She always 
expressed her support for those who serve in the military and 
encouraged students to consider military service. It was clear 
she was trying to balance the institution's values underlying 
its anti-discrimination policy, whether genuine support for 
those who serve or are considering service in the military. 
Indeed, her sense of DATT injustice seems to grow out of her 
belief in the importance of military--importance and value of 
military service. I remember that she repeatedly said such 
while dean.''
    Then he concludes his letter--remember, this is addressed 
to Senator Sessions and myself--``I urge you to maintain that 
focus for the remainder of the hearings and refrain from 
further hyperbole questioning of Ms. Kagan's support for the 
men and women of the U.S. military. I believe that while dean 
of Harvard Law School she adequately proved her support for 
those who had served, who are currently serving, and all those 
who felt called to serve, including those like me who joined 
upon graduation, as well as those patriots who are not 
permitted to do so under the policy of don't ask/don't tell.''
    I'll put that letter in the record and I reserve the 
balance of my time.
    Senator Hatch, it's over to you.
    Senator Hatch. Well, thank you, Mr. Chairman. Welcome 
again. Happy to see you. Let me just say, some of my colleagues 
and my friends on the other side are really taken aback by some 
of the arguments on Citizens United and some of the other 
cases. I'd just like to kind of set the record straight on some 
of those, the Democrats' efforts to paint the Roberts court as 
a conservative activist court.
    I think those efforts fall short of even the most basic 
factual scrutiny. The rulings in question were firmly grounded 
in the law, the Constitution, and relevant precedent. In fact, 
some of the so-called examples of ``conservative activist'' 
opinions pointed to by Democrats were joined by some of the 
most liberal members of the court. In the most oft-cited case, 
Citizens United, the ACLU sided with the conservatives on the 
court.
    Take the Exxon Shipping Company v. Baker case. This 
decision was written by none other than Justice David Sooner. 
Anita Totenberg of National Public Radio called David ``a full-
fledged member of the court's unabashedly liberal caucus.'' In 
that case, the court merely held that under maritime law, which 
we all know is largely judge-made, punitive damages cannot 
exceed actual damages of $1 billion. You know, I see a lot of 
beating the breast on these things.
    Let's just take the Citizens United case--it's an important 
case--v. Federal Election Commission. The case is usually cited 
in Democrat critiques of the court. This is the only one in 
which the court actually struck down an act of Congress. They 
did so for a simple reason: the law passed by Congress violated 
fundamental law, the First Amendment of the United States of 
America, the U.S. Congress--or Constitution, excuse me. The law 
in question prohibited the broadcast of political speech 
critical of politicians in the run-up to an election.
    In defending the law, I might add, Solicitor General Kagan 
and her office argued that the government had the authority to 
prevent the publication of movies and other forms of political 
speech, such as even books or pamphlets--although General Kagan 
did limit her critique to pamphlets at the time--those movies, 
books or pamphlets that advocated for or against candidates. 
Even the liberal American Civil Liberties Union filed a brief 
arguing that the law was facially unconstitutional and a poorly 
conceived effort to restrict political speech should be struck 
down.
    Now, faced with a law through which Congress exceeded its 
authority, the courts applied the Constitution and struck down 
the law. The majority's opinion in Citizens United was not an 
act of judicial activism, it was an act of correction, 
overruling a 20-year-old case erroneously decided by five 
justices who clearly substituted their policy views on how 
elections should be conducted to the dictates of the First 
Amendment.
    Now, the court simply returned the doctrine it espoused in 
the 1976 case of Buckley v. Vallejo, which said that, ``The 
concept that government may restrict the speech of some 
elements of our society in order to enhance the relative voice 
of others is wholly foreign to the First Amendment.''
    Now, this is an important point I think just has to be 
pointed out. Democrats claims that Citizens United overruled 
100 years of precedent are simply untrue. The 100 years claim 
points to the Tillman Act passed in 1907, which barred 
contributions, namely given to candidates. Citizens United was 
about expenditures, money spent on independent advertising.
    The first Federal law limiting corporate and labor union 
expenditures was not passed until 1947 and was not addressed by 
the Supreme Court until the 1970s. Plus, they put out there at 
least 25 cases that were precedential that Citizens United 
basically backed.
    Now, to get to you, General Kagan, let me just say this. I 
also want to look briefly at another free speech case, and 
that's United States v. Stevens. The defendant argued that the 
Federal statute prohibiting the sale of depictions of animal 
cruelty was unconstitutional. In your brief defending the 
statute you made this argument: ``Whether a given category or 
speech enjoys First Amendment protection depends upon a 
categorical balancing of the value of the speech against its 
societal cost.''
    Now, in his opinion for the court, Chief Justice Roberts 
responded to your theory this way: ``As a free-floating test 
for First Amendment coverage, that sentence wherein you stated 
that whether a given category of speech enjoys First Amendment 
protection depends upon a categorical balancing of the value of 
the speech against its societal costs'', he said that ``as a 
free-floating test, he said, for First Amendment coverage, that 
sentence is startling and dangerous.''
    Now, I know you were representing your client, the United 
States, in this case, but you certainly did not have to make 
that unusual argument. Now, here's what I'm concerned about. It 
sounds a lot like other subjective theories that give judges a 
lot of power that you have discussed in your law journal 
activities.
    Whether it is focusing on hidden subjective motives rather 
than actual objective effects, imposing restrictions based on 
the identity of the speaker, or here, basing freedom of speech 
on an assessment of value and cost, I'm really troubled by how 
much power your arguments and theories appear to give to 
judges. Now, am I wrong to be concerned about this?
    Ms. Kagan. Senator Hatch, I think you are wrong to be 
concerned about it. Let me first talk about the United States 
v. Stevens brief. It's as hard case. Congress had passed a 
statute and it was a statute designed to deal with horrific 
acts of animal cruelty, including these things that I didn't 
know existed, these crush videos.
    Senator Hatch. That none of us would like, that's for sure.
    Ms. Kagan. But it was--it was a statute that was--I 
hesitate to criticize Congress' work, but it was a statute that 
was not drafted with the kind of precision that made it easy to 
defend from a First Amendment challenge. And we thought that 
our best argument, really the only argument that we had, was to 
analogize the statute to other categories of expressive 
activity that the court had held were simply not protected by 
the First Amendment.
    And most notably, the two categories that we used in that--
in that brief were obscenity and child pornography, and those 
are categories where I think the court has done this kind of 
categorical balancing that I spoke of--that, you know, we spoke 
of in the brief, where the court has said, look, when it comes 
to obscenity or child pornography--child pornography is--is an 
especially apt example because the harm that Congress was 
trying to get at here--what Congress was trying to do was to 
turn off the spigot of distribution so that these materials 
would not be made in the first place. That was the theory that 
the court used to say that child pornography could be regulated 
under the First Amendment, that if we shut down the mechanisms 
of distributing and--and this material, nobody would produce 
this material. That's what Congress--that was clearly Congress' 
focus in passing this animal cruelty statute.
    So what we tried to do, was to analogize this statute to 
the child pornography laws that the court had upheld in Ferber, 
and to say that the court should uphold this statute for the 
identical reason that it upheld the child pornography laws, 
that the court should realize the extraordinary harms of this--
of this speech and should realize the way in which this 
regulation was really aimed at stopping the initial production, 
the initial horrific acts that went into the production of this 
speech.
    That was--that was the government's view. It was a view 
that was accepted by Justice Aleto in the case. He was the only 
vote we got, but he essentially accepted that theory. I think 
it was a very hard case because it was--again, I hesitate to 
criticize Congress' work, but another statute would have been 
easier to defend on First Amendment grounds, but we tried to do 
the best we could with it.
    Senator Hatch. You and I agree on that.
    I still have just a couple of questions about the military 
recruiting issue. You said yesterday that ``the only thing that 
was at issue was essentially the sponsoring organizations, 
whether it was the Office of Career Services, or instead the 
Student Veterans Organization.'' Now, it seems to me, though, 
that in addition to who sponsored the recruiters, the real 
question was what they were able to offer.
    Ms. Kagan. I'm sorry. What they were able?
    Senator Hatch. What they were able to offer. The law, after 
all, says nothing about sponsors and it says nothing about 
whether recruiting goes up or down in a particular time period. 
The law requires the same access to campus and students for the 
military as other employers received. The Harvard Law School 
Veterans Association said that they had a tiny membership, 
meager budget, and no office space. All they could do was 
facilitate a few student-initiated contacts with military 
recruiters. All they could do was establish an e-mail account 
to receive inquiries from students.
    Now, is this what you referred to yesterday as ``full and 
complete access to our students'', and did you believe that 
this was an equal substitute for what the Office of Career 
Services provided for all other employers, all other legal 
employers?
    Ms. Kagan. Senator Hatch, I did believe that it was an 
equally effective substitute, that what our Office of Career 
Services does, they do a good job, but what they do is 
basically no more than to ensure that students know when a 
military--excuse me, when an employer of any kind is coming and 
to enable a student and the employer to hook up with each 
other. And that's what our Office of Career Services do. They 
have upwards of 700-800 employers that come to our campus every 
year, and what the Office of Career Services does, is to make 
sure that students know when those 700-800 employers are coming 
and where they're going to be.
    Senator Hatch. But you have----
    Ms. Kagan. And to make sure----
    Senator Hatch. You have to admit that the facilities 
weren't as available to the military, to the recruiters, that 
they would have been with the office that you're describing. I 
mean, let me make that point a little bit more clearly, maybe. 
Yesterday you also said that ``the military, at all times 
during my deanship, had full and good access.''
    Now, the Judge Advocate General's Office, however, stated 
that without access to the Office of Career Services, we are 
relegated to wandering the halls in hopes that someone will 
stop and talk to us. It is our view that denying access to the 
Career Services office is tantamount to chaining and locking 
the front door of the law school, as it has the same impact on 
our recruiting efforts.''
    Again, I'm not asking whether recruiting went up or down or 
whether there was some access to something at all times. The 
law requires the same access for the military as other 
employers, not access that the dean may consider good. Do you 
disagree with this description of the situation by the Office 
of the Judge Advocate General?
    Ms. Kagan. Senator Hatch, I appreciate that reasonable 
people can disagree about this issue, but I do think that the 
military, at all times, regardless whether it was--whether the 
Office of Career Services was sponsoring or the Veterans 
Association was sponsoring, had excellent access to our 
students. And over many years prior to my deanship, the 
Veterans Association had sponsored.
    The Department of Defense had thought that that sponsorship 
was fully adequate to their needs, and I think that there are 
other documents in those records which suggest that, which 
suggest the Department of Defense going in and saying, we met 
with a lot of people and it was great, and we very much 
appreciate the access that we were getting.
    The Office of Career Services really exists as a kind of--
it makes sure that students know that employers are coming and 
it makes sure that students have the opportunity to talk with 
those employers. The Veterans Association did a fabulous job of 
doing the same thing. So I do think that the military 
recruiters had excellent access either way, and in fact that 
semester in my deanship, the one period of 12 in which the 
Veterans Association did sponsor the interviews in that year, 
military recruiting did go up. I do think that the effects in 
some sense speak for themselves.
    Senator Hatch. OK. Well, let me switch topics again, this 
time to abortion. When Congress debated the ban on partial 
birth abortion, one issue was whether this particularly 
gruesome abortion method was medically necessary. The American 
College of Obstetricians and Gynecologists, or ACOG, they call 
it, is a natural source of medical opinion on this subject.
    According to the documents we received, you wrote a memo to 
your superiors in the Clinton White House about this. You noted 
that the American College of Obstetricians and Gynecologists 
was considering a statement that its experts' panel found no 
circumstances under which partial birth abortion was the only 
option for saving the life or preserving the health of the 
woman. You wrote, ``This, of course, would be disaster.''
    That's something that does bother me because ``it would be 
a disaster'', you wrote, because ACOG opposed the ban on 
partial birth abortion. If anyone ever found out and you wrote 
that it could leak even if ACOG did not officially release its 
original statement, it could have negative political 
consequences. So you drafted alternative language that would 
say that partial birth abortion ``may be the best and most 
appropriate procedure and in particular circumstances save the 
life or preserve the health of the woman.'' Now, that's a very 
different spin, and obviously a more politically useful spin.
    The ACOG executive board copied your language verbatim into 
its final statement. Your language played an enormous role in 
both legal and political fights over banning partial birth 
abortion. The Supreme Court relied on it when striking down the 
Nebraska ban in Steinhart Carhart. Now, I'm really stunned by 
what appears to be a real politicization of science. The 
political objective of keeping partial birth abortion legal 
appears to have trumped what a medical organization originally 
wrote and left to its own scientific inquiry, and that they had 
concluded. Did you write that memo?
    Ms. Kagan. Senator, with respect, I don't think that that's 
what happened here.
    Senator Hatch. Well, I'm happy to have you clarify it. 
That's my question: did you write that memo?
    Ms. Kagan. I'm sorry. The memo which is?
    Senator Hatch. The memo that basically caused them to go 
back to the language of ``medically necessary'' that was the 
big issue to begin with.
    Ms. Kagan. Yes. Well, I've seen the document and the 
document is----
    Senator Hatch. But did you write it?
    Ms. Kagan. Is----
    Senator Hatch. Is that your memo?
    Ms. Kagan. The document is certainly in my handwriting. I 
don't know whether the document was a product of a conversation 
that I had had with them.
    Senator Hatch. So it's yours.
    Ms. Kagan. If I could just go back, Senator Hatch.
    Senator Hatch. OK.
    Ms. Kagan. This was an incredibly difficult issue for 
everybody who was associated with it, for obvious reasons. 
President Clinton had strong views on this issue, and what he 
thought was that this procedure should be banned in all cases 
except where the procedure was necessary to save the life or to 
prevent serious health consequences to the woman. Those were 
always his principles.
    We tried, over the course of the period of time when this 
statute was being considered, actually twice, to get him 
absolutely the best medical evidence on this subject possible. 
And it was not easy because, as everybody in Congress knows, 
different people said different things about this. There was 
conflicting evidence. And we tried to do our best to bring all 
the evidence, all the conflicting views to his attention.
    In the course of that, we did indeed speak with ACOG. ACOG 
had an interest in this statute and ACOG had views about the 
statute. What ACOG thought and always conveyed to us was two 
things. What ACOG thought was that, on the one hand, they 
couldn't think of a circumstance in which this procedure was 
the absolutely only procedure that could be used in a given 
case. But second, on the other hand, that they could think of 
circumstances in which it was the medically best or medically 
most appropriate procedure, that it was the procedure with the 
least risk attached to it in terms of preventing harm to the 
women's health.
    And so we knew that ACOG thought both of these things. We 
informed the President, President Clinton, of that fact. There 
did come a time when we saw a draft statement that stated the 
first of these things which we knew ACOG to believe, but not 
the second, which we also knew ACOG to believe. And I had some 
discussions with ACOG about that draft.
    Senator Hatch. OK. My time is about up. Let me just ask 
that question again: did you write ``this, of course, would be 
a disaster'' ? It's your handwriting.
    Ms. Kagan. The----
    Senator Hatch. You didn't get that from----
    Ms. Kagan. No, no, no. You're exactly right. I'm sorry. I 
didn't realize you were referring----
    Senator Hatch. That's what I wanted to know.
    Ms. Kagan. Yes. Yes. No, that's exactly right. And--and the 
disaster would be, if the statement did not accurately reflect 
all of what ACOG thought, both--I mean, that there were two 
parts of what ACOG thought. And I recall generally, not with 
any great specificity but recall generally, talking to ACOG 
about that statement and about whether that statement was 
consistent with the views that we knew it had because they had 
stated them, that there was both, not the only procedure, but 
also that it was in some circumstances the medically best 
procedure.
    And in their final statement, that--that sentence that it 
was not the only procedure, of course, remained because that is 
what they thought. But we did have some discussions about 
clarifying the second aspect of what they also thought, which 
was that it was in some circumstances the medically most 
appropriate procedure. And so I think that this was all done in 
order to present both to President--both to the President and 
to Congress the most accurate understanding of what this 
important organization of doctors believed with respect to this 
issue.
    Senator Hatch. Mr. Chairman, I just have one or two 
sentences I'd like to say and then I'll finish.
    Chairman Leahy. I'll give you extra time.
    Senator Hatch. Thank you, Mr. Chairman.
    Well, I'll tell you, this bothers me a lot, because I know 
that there were plenty of doctors in ACOG who did not believe 
that partial birth abortion was an essential procedure and who 
believed that it was really a brutal procedure, and it was a 
constant conflict there. And as you know, many in Congress came 
to the conclusion it was a brutal procedure too, that really 
was unjustified. That bothers me that you intervened in that 
particular area in that way. Well, that's all I'll say about 
it, but I just wanted you to be aware that that bothers me.
    Ms. Kagan. Senator Hatch, there was no way in which I would 
have, or could have, intervened with ACOG, which is a respected 
body of physicians, to get it to change its medical views on 
the question. The only question that we were talking about was 
whether this statement that they were going to issue accurately 
reflected the views that they had expressed to the President, 
to the President's staff, to Congress, and to the American 
public.
    I do agree with you, this was an enormously hard issue. 
President Clinton found it so, and thought that the procedure 
should not be used except in cases where it was necessary for 
life or health purposes. And we tried to get him the best 
information we could about the medical need for this procedure, 
something that was not always easy, and tried to, in all the 
statements that he made, to make sure and--and any statements--
other statements that we were aware of to make sure that that 
information was accurately conveyed to the American public.
    Senator Hatch. One of the things I did as an attorney was 
represent doctors, including some obstetricians and 
gynecologists. I had a lot of experience with them. I hardly 
ever met anybody who thought that was a fair or good procedure. 
But be that as it may, I just want you to know I'm troubled by 
it, even though I care a great deal for you and respect you.
    Thank you, Mr. Chairman.
    Chairman Leahy. As the Senator knows, because we are going 
to finish this afternoon, I did want to give him extra time on 
that.
    On my time, I would--and I would ask Senator Hatch to stay 
for this for a moment. I would like to put into the record a 
letter of strong support for Elena Kagan's nomination the 
Committee received from Professor Michael McConnell. He is now 
director of the Constitutional Law Center at Stanford Law 
School. Until recently, he was a Federal Appeals Court judge, 
appointed by President George W. Bush to the Tenth Circuit, 
strongly backed by Senator Hatch. When President Bush nominated 
Professor McConnell, he was widely regarded as a brilliant law 
professor. He appeared before our Committee. He was championed 
by Senator Hatch.
    Despite his provocative writings including staunch advocacy 
for reexamining the First Amendment jurisprudence, strong 
opposition to Roe v. Wade, strong opposition to the clinic 
access law, and his testimony before Congress that he believed 
the Violence Against Women Act was unconstitutional, I was 
assured by his response to our questions he understood the 
difference between his role as a teacher and advocate and his 
future role as a judge. He assured us he respected the doctrine 
of stare decisis and would be bound to follow Supreme Court 
precedent. I supported his confirmation, as did other 
Democratic Senators. He was confirmed.
    Professor McConnell's approach to the law is thoughtful, 
but also staunchly conservative. That's why I carefully read 
his letter to the Committee in which he analyzed Solicitor 
General Kagan's legal philosophy in a number of areas Professor 
McConnell views as ``important to those who adhere to a 
generally conservative understanding of the role of the Supreme 
Court, interpreting the Constitution and the laws of the United 
States.''
    Professor McConnell concludes, ``On a significant number of 
important and controversial matters, Elena Kagan has taken 
positions associated with the conservative side of the legal 
academy. This demonstrates an openness to diversity of ideas, 
as well as a lack of partisanship that bodes well for service 
on the court.''
    Professor McConnell concludes his letter, ``In Elena 
Kagan's service in the executive branch and her time as dean, 
she skillfully navigated political waters, but she's also 
demonstrated another quality. Publicly and privately in 
scholarly work and in her argument that we have for the United 
States, Elena Kagan has demonstrated fidelity to legal 
principle, even when it means crossing her political 
ideological allies. This is an admirable and essential quality 
in a judge.''
    Senator Hatch. Mr. Chairman?
    Chairman Leahy. Just as my fellow conservatives asked us to 
accept that Professor McConnell would be--would uphold the law 
and asked us, as Senator Hatch did, to vote for him, as they 
did, I would note that Professor McConnell concluded that 
``Solicitor General Kagan deserves not a grudging acquiescence, 
but an enthusiastic confirmation as an associate justice of the 
United States Supreme Court. I would hope that the same 
credibility that we gave him will be given to her.''
    Senator Hatch. Mr. Chairman, if I could just add, that's 
high praise, indeed, because I think Michael McConnell is about 
as good a constitutional expert and lawyer as we have in this 
country, and certainly a great teacher. By the way, just to 
correct the record, even though he thought the Violence Against 
Women Act was unconstitutional, I was the prime co-sponsor, 
along with----
    Chairman Leahy. I know you were. But that was his position, 
and I voted for him just the same.
    Senator Hatch. So I understand there can be differences.
    Chairman Leahy. We have about 4 minutes left in the vote.
    Senator Hatch. Thank you, Mr. Chairman.
    Chairman Leahy. I would yield to Senator Feinstein.
    Senator Feinstein. Thank you very much, Mr. Chairman.
    General Kagan, good afternoon. I know this has been a long 
hearing for you. I have just one question, and then a brief 
statement I'd like to make.
    My question is on the Establishment Clause. I believe our 
Nation was founded on the principle that the United States 
would never be a place for religious persecution, and therefore 
that religion and the government would remain separate and 
independent of each other. I think that's part of what makes us 
a strong Nation, and it also protects us from religious 
discrimination.
    Here is the question, and let me put it all into one: what 
will be your approach to interpreting the Establishment Clause 
of the Constitution, and how do you believe it works with the 
Free Exercise Clause? And then if you could respond also on the 
question of standing to sue, the ability to bring a case in the 
Federal court.
    In the case of Hein v. Freedom From Religion Foundation, 
the court held that taxpayers no longer have constitutional 
standing to bring challenges to executive branch expenditures 
on the grounds that they violate the Establishment Clause. The 
problem is if taxpayers don't have the ability to bring a case, 
who does have the ability to bring a case and challenge whether 
the executive branch is complying with the Constitution? That's 
three things at one time, but I think you're probably able to 
handle them.
    Ms. Kagan. OK, Senator Feinstein, I'll try. I guess I'll 
start with the question of the two clauses, because both are 
very important to our constitutional system and neither should 
be subordinated to the other. There are times when they are in 
some tension with each other. Now, I think it's important to 
recognize that there are many times when that's not so, where 
they in fact go hand in hand and function perfectly well 
together. But there are some times when they may be in tension 
and it can cut in either direction.
    So suppose that a State--a State government decides to give 
what is called a voluntary accommodation to some religious 
person, essentially a voluntary exemption of that person from 
an otherwise generally applicable law, and does that because 
the law would impose some substantial burdens on that person's 
religious practice, and the State thinks, you know what? In 
those circumstances we think that the person should be exempted 
from the law so that the person can follow the dictates of her 
conscience.
    But then somebody else comes in and says, well, what do you 
mean? You're giving that exemption but you're not giving me an 
exemption, and--and--and why are you making that sort of 
special accommodation to this--to this person? That special 
accommodation must count as an establishment of religion, and 
so there you get a claim where there is an accommodation to 
religious--the free exercise of religion, but then there's a 
claim that that violates the Establishment Clause part of the 
First Amendment. And that's the kind of way in which there 
might be tension.
    But what the court has said with respect to this issue, and 
there seems to me great virtue in this approach, is that in 
order to prevent that from happening or to prevent it the other 
way, where the State does something in order to--to advance 
Establishment Clause values and then somebody comes in and 
makes a free exercise claim, either way, what the court has--
has stated is that there needs to be some play in the joints, 
there needs to be some freedom for government to act in this 
area without being subject to a claim from the other side, some 
freedom for government to make religious accommodations without 
being subject to Establishment Clause challenges and some 
freedom on government's part to enforce the values of the 
Establishment Clause without being subject to free exercise 
claims.
    That's not to say how any particular case should come out 
because sometimes the State goes too far, but that in general 
there needs to be a little bit of play in the joints in order 
to prevent the State from sort of not being able to do 
anything, from being hamstrung in this area.
    As to--as to what Establishment Clause tests I would use, 
that is a hard, hard question. Right now, there are a multitude 
of such tests. The--the--the most established one, the oldest 
one, is the Lemon v. Kurtzman test, which is a three-part test 
focusing on the purpose of a governmental action, the effect of 
a governmental action, whether the governmental action has the 
effect--has the primary effect of inhibiting or advancing 
religion, and the third part of the test focuses on 
entanglement between the government and the religious entity.
    And many, many justices have tried to kill this test. I 
think that there have been six individual justices who at least 
have expressed some skepticism about it. But it--it continues 
on. It has not been reversed. It--it's--and--and it's--it's 
usually the test that the lower courts apply. It's sometimes 
applied and sometimes not applied by the Supreme Court, very 
much depending on the circumstances, but it continues to be 
the--the--the test--the primary test of the court. Now, other 
justices have had different ways of approaching this issue.
    Justice O'Connor famously asked about whether particular 
actions would be seen by reasonable observers as endorsements 
of religion. Some of the justices have used a kind of coercion 
test, asking whether a governmental action coerces a person in 
the exercise of religion. Justice Breyer has recently talked 
about religious divisiveness as a way to approach Establishment 
Clause inquiries.
    And I think that the reason why there are so many tests, 
and I don't think that I've mentioned all of them even, I think 
that the reason is that the Establishment Clause can arise in a 
very wide variety of contexts with a very wide variety of 
factual situations and circumstances.
    Sometimes one test might seem the appropriate way to 
analyze the problem and sometimes another, and it's very hard 
to say, kind of in the abstract, which is appropriate, that 
it's a more--it's a matter of sort of situation sense, if you 
will. It's a more contextual inquiry as to what's the approach 
to use that would make sense.
    In general, I think what the--both First Amendment clauses 
are designed to do, and this is the way in which they work 
hand-in-hand with each other, what they're both designed to do 
is to ensure that you have full rights as an American citizen. 
You are a part of this country no matter what your religion is. 
And--and to--to ensure that religion just never functions as a 
way to put people, because of their religious belief or because 
of their religious practice, at some disadvantage with respect 
to any of the rights of American citizenship. So I think that 
that's the sort of overall purpose of both parts of the 
amendment.
    As to the matter of taxpayer standing, I want to be very 
careful here because there is a taxpayer standing issue, as I 
understand it, that will be before the court next term. The--
the court has stated that taxpayers generally have standing to 
make certain kinds of Establishment Clause claims, specifically 
claims against Congressional legislation when--when--that a 
taxpayer, by virtue of being a taxpayer, can sue to contest 
governmental actions taken under Congress' power to appropriate 
money, but that a taxpayer may not have standing to contest 
executive action just by virtue of being a taxpayer.
    Now, that doesn't mean that some--that there may not be 
somebody who has standing to contest such action. I think what 
the court has suggested is just that the sort of normal injury 
that Article 3 requires has to be shown, the injury can't come 
just by virtue of being a taxpayer but has to come from 
something else in addition. But there is, I think, a case on 
the docket.
    Senator Feinstein. Such as the individual being actually 
affected.
    Ms. Kagan. Yes. Exactly right.
    Senator Feinstein. Thank you. You know, I think even the 
other side would have to admit that you have a wonderfully 
well-ordered mind, and I've watched you over these days. When I 
haven't been right here and I've been able to look at 
television, I've watched you. I think your knowledge of the law 
and your ability to order your answers is really very 
impressive, and I just want you to know that.
    Now I want to say something. If you are confirmed, and I 
believe you're going to be, you will be only the fourth female 
justice in history and the Supreme Court will have three women 
serving concurrently for the first time ever. As the first 
female dean of Harvard, the first woman to serve as Solicitor 
General, you've certainly broken several glass ceilings.
    However, the fact is, many institutions still do not 
reflect the diversity of our society and the Federal courts, 
I'm sorry to say, are one of them. As of last month, only 48 of 
the country's 163 active Federal Appeals Court judges were 
women, and women comprised only 191 of 794 District Court 
judges.
    According to the American Community Survey, a college-
educated woman makes approximately $20,000 less than her 
similarly educated male counterpart, and the average woman is 
paid only 77 cents for every dollar a man makes. I remember 
when it was 56 cents, so I know there's been progress. And this 
is not to say that progress hasn't been made. Women today make 
up nearly half of all law students, 30 percent of all lawyers, 
and when I first joined the Senate there were only two women 
serving in this institution, and today there are 17 of us. So 
we're making progress, but every advance, it seems to me, has 
really been hard-fought.
    And I want to say one thing about the Ledbetter case now 
that it's history. I found it just shocking that the court 
would hold to a technicality when a woman couldn't possibly 
have known during the time that the tolling was taking place 
that she was disadvantaged, and when she learned she was 
disadvantaged it was too late.
    For such a substantial time, she had been doing the same 
work as a man and not being paid for it. So I think, as more 
women are on the highest court, I really believe that once you 
cross that threshold and the doors open, it remains open for 
all time and others will follow.
    I said this to Justice Sotomayor as well. You're a 
wonderful role model for women. And we'll forget whether you're 
a Democrat or a Republican, you know, you're reasoned, you have 
a commitment, you have a dedication and a staying power. You do 
us all well, and that's what I wanted to say. So, thank you 
very much.
    Now I'll recognize Senator Grassley.
    Senator Grassley. Do I get to use your unused 6 minutes?
    Senator Feinstein. You want to use my 6 minutes? You can.
    Senator Grassley. I'm joking. Thank you very much.
    I want to start with private property. The Takings Clause 
of the Fifth Amendment states, `` . . . nor shall private 
property be taken for public use, without just compensation.''
    The plain language of the Constitution says an individual's 
property shall not be taken for ``public use,'' yet the 
majority of the Supreme Court in Kelo wrote that the government 
could take a person's private property for a ``public 
purpose,'' not using the word ``use,'' which they determined 
included private redevelopment of land.
    Do you believe that the Supreme Court correctly decided the 
Kelo case or do you believe that the Supreme Court improperly 
undermined constitutionally protected private property rights?
    Ms. Kagan. Senator Grassley, it was obviously a very 
controversial decision that has inspired a great deal of--of 
action in the State legislatures. I've not commented on 
particular cases. I've not graded cases. But a few thoughts 
about Kelo. Of course, what--what the--what the court in Kelo 
did was to say that the question of public use was not 
necessarily use by the public, but instead was use for a public 
purpose.
    The court said that in the context of a taking of property 
that was done pursuant to a broad-scale urban development plan, 
so I think it--it remains an open question whether that public 
purpose test would apply in any other context without such a 
broad-scale urban development plan.
    You know, one of the things that you learn in your first 
year of law school in your property class is Cutler v. Bull. 
The principle of Cutler v. Bull is that the government can't 
take the property of A just to give it to B. Here, what the--
what the court said was that that principle did not apply, but 
it was very much dependent on this overall urban redevelopment 
plan. The question of--of--of whether the public purpose 
doctrine would apply outside of that context is, I think, an 
open question.
    It's also true--it's also true that in some sense what 
the--what the--what the court did in this area when it said 
this was to kick the question back into the political process. 
In other words, the court didn't say, of course, that the 
government had to make--to do such takings. What the government 
said was that a State was permitted to do so.
    And what States have done in the wake of that decision, in 
a--in a very striking manner, I think, is to say thanks, but no 
thanks, you know. We don't want that power, we don't want to 
be--we don't want to do this. We think doing this, taking 
property from one person to give it to another person, even in 
the context of a broad redevelopment plan, is not appropriate 
public policy.
    So a number of States, I know--I don't know the exact 
number, but quite a number--have passed these kinds of anti-
Kelo legislation, which makes sure that the--that the question 
never arises because the State government doesn't try to effect 
such a taking in the first instance.
    Senator Grassley. Are there any limits on the ``public 
benefits'' doctrine in Kelo?
    Ms. Kagan. Well, I--I--I do think that that Kelo only 
talked about that doctrine in the context of this urban 
development plan, so I think that the limits are the limits 
suggested by the Kelo facts themselves. I don't think that the 
court went beyond those facts in its decision.
    Senator Grassley. Under Kelo, the Court said that 
``pretextual'' takings are still unconstitutional and a 
violation of the ``public use'' doctrine. Could you give me an 
example of a condemnation that is an unconstitutional 
pretextual taking?
    Ms. Kagan. Gosh, you know, I don't remember that exact line 
from Kelo, so I'm a little bit guessing as to the context. But 
I--I think probably what the court meant was a taking that the 
government does not truly to serve a public purpose, but 
instead more to give the property to another individual person, 
the kind of Cutler v. Bull scenario, take property from A, give 
it to B under the guise of a public purpose. So I would think 
that that's what the court meant, although I don't recall that 
exact statement. And I think that that also would provide a 
limit of--of the kind you're speaking about on--on the 
doctrine.
    Senator Grassley. Can you think of any areas where, in your 
opinion, the Supreme Court has failed to provide adequate 
protection of constitutional property rights? And if you can 
think of any, then I'd like to know examples, or an example.
    Ms. Kagan. Well, you know, I've--I've--I've tried very 
hard, Senator Grassley, not to suggest where I see deficiencies 
in--in the court's handling of cases, so I think I won't answer 
that question with that degree of specificity. I mean, it is 
quite clear that the Constitution does in various ways, and 
most notably by the Takings Clause, protect property rights and 
that the job of the courts, with respect to those rights as any 
other, is to ensure that government does not overstep its 
proper bounds.
    Senator Grassley. The President who appointed you, in The 
Audacity of Hope, his book, said, ``Our Constitution places the 
ownership of private property at the very heart of our system 
of liberty.'' Do you agree with that statement?
    Ms. Kagan. Well, I--I do think that property rights are a 
foundation stone of liberty, that the two are intimately 
connected to each other in our society and in our history.
    Senator Grassley. I want to bring up the Second Amendment 
again. In Prince v. U.S., the Supreme Court held that Congress 
could not order State and local chief law enforcement officers 
to conduct Federal background checks on handgun purchasers.
    In a March 1997 memo, Dennis Burke wrote that, based upon a 
suggestion from you, he asked the Departments of Treasury and 
Justice to provide options on what the President could do in 
this area by executive action. As an example, he cites your 
suggestion that the President, by Executive Order, might--
might--be able to prohibit a federal firearms dealer from 
selling a handgun without local law enforcement certification. 
In other words, the President could prohibit handgun sales by 
licensed dealers, even if the Congress could not force the 
States to do so.
    So this raises a fundamental issue not only in terms of the 
Second Amendment and the Tenth Amendment, but suggests that the 
President has the power to make law on his own. Was it your 
position that the President has the authority, by Executive 
Order, to prohibit federal firearms dealers from selling 
handguns without local law enforcement certification?
    Ms. Kagan. That was not my position, Senator Grassley. And 
if we could just step back a moment.
    Senator Grassley. I have a memo down that I want to bring 
to your attention, although I accept what you say. But the 
final paragraph of a memo to Michelle Crisci says, ``Based on 
Elena's suggestion, I have also asked both Treasury and Justice 
to give us options on what POTUS could do by executive action--
for example, could he, by executive order, prohibit a FFL from 
selling a handgun without a CLEO certification?  We will 
continue to pursue.''
    Ms. Kagan. Right. So let me just step back for a moment. 
This was, of course--President Clinton was very committed to 
the Brady law, which was a way of ensuring that guns were kept 
out of the hands of criminals, were kept out of the hands of 
insane people, by doing background checks on people before they 
could receive access to guns. It was a law, of course, with 
very wide support in Congress and across the country. It 
remains in effect today.
    The court, in Prince--there was a system, a Federal system 
that enabled gun dealers to do those background checks, but it 
had not yet come into effect. I think it came into effect in 
1998, and there we were in 1994 or 1995 or 1996, or something 
like that. And in the interim, before the Federal system was 
ready to operate in order to implement the Brady law, what 
had--what had happened was that the Brady law had required 
States to themselves do the background checks.
    The CLEOs, the Chief Law Enforcement Officers of each 
jurisdiction, were required to do the background checks. And 
the court, in Prince, held that system unconstitutional, said 
that that was a violation of the Tenth Amendment because it 
inappropriately commandeered State officials for Federal 
purposes. And what that meant was that there was a kind of gap. 
The Congress could not require the State officials to do the 
background checks, but the Federal system--it's called the--I 
think it's the Insta-Check System, or something like that. The 
Federal system had not come into effect.
    So the question was what to do in that period of, I don't 
know, it was like 18 months or 2 years to ensure that 
background checks could be done consistent with the Brady law. 
What I suggested to Mr. Burke in that memo was to say, let's 
see if there are any ways in which the President can take 
executive action to put in place some kind of interim system. 
That executive--to do background checks. Again, that executive 
action, of course, had to be consistent with the law, of course 
had to be consistent with any statutes that Congress had 
passed, Brady or anything else, and had to be consistent with 
the Constitution as well.
    As I recall, and it's many moons ago, obviously, we didn't 
find any way to do that. I'm trying to think of exactly what 
did happen in that interim period. I think for the most part, 
States voluntarily did what they had been doing until the 
Federal system came into play and sort of mooted out the whole 
inquiry.
    Senator Grassley. You didn't have any predilections that 
the President could do that, that only Congress can do that? I 
think that's what you just told me.
    Ms. Kagan. Yes. The President could only do it if 
Congress--if legislation authorized him to do it. If 
legislation did, you know, that's fine. If there was no 
legislative authorization, then he couldn't do it.
    Senator Grassley. I think my last question in this area is 
obvious, but let me ask it anyway. In light of both Heller and 
McDonald, do you still believe that the Executive Branch has 
the power to--well, I shouldn't use the word still because I 
think you've cleared that up for us, but do you believe that 
the Executive Branch has the power to prohibit the sale of 
firearms without legislative authorization?
    Ms. Kagan. As I said, I never believed that the President 
had the power to prohibit that without legislative 
authorization, so in fact that's one that Heller and McDonald 
don't affect, that the President didn't have that power before 
and doesn't have that power after.
    Senator Grassley. OK. On the Second Amendment, dealing with 
self-defense, the historical background surrounding the Second 
Amendment strongly supports the concept that self-defense is a 
preexisting, fundamental right. William Blackstone, who the 
Supreme Court has called ``the preeminent authority on English 
law for the founding generation'', cited the arms provision as 
``one of the fundamental rights of Englishmen'', calling it 
``the natural right of resistance and self-preservation--the 
right of having and using arms for self-preservation and 
defense.''
    During her confirmation hearings, Justice Sotomayor 
testified that she couldn't think of a constitutional right to 
self-defense; rather, it is defined in criminal statutes by 
State laws. So, question: is self-defense a preexisting 
fundamental right? Or is it a notion created in the law as an 
affirmative defense in criminal statutes?
    Ms. Kagan. Senator Grassley, I've never had occasion to 
look into the history of this matter. What I do know is that 
Heller has stated very specifically that self-defense is the 
core of the Second Amendment right, which Heller has held 
confers an individual right to bear arms. The majority opinion 
in Heller really does speak of self-defense as the central 
element of that right.
    Senator Grassley. Yes. And let me introduce here the quote 
specifically: ``deeply rooted in this Nation's history and 
traditions'', from Heller.
    Ms. Kagan. Right. And that is, you know, a central part of 
the rationale of Heller and is settled law in the ways that 
I've expressed going forward.
    Senator Grassley. Okay. I'll move on. Marriage is a State 
issue. Do you believe that marriage is a question reserved for 
the States to decide? And I'm only seeking your opinion because 
I know there might be cases coming down the road. Do you 
believe that marriage is a question reserved for States to 
decide?
    Ms. Kagan. Senator Grassley, there is, of course, a case 
coming down the road and I want to be extremely careful about 
this question and not to in any way prejudge any case that 
might come before me.
    Senator Grassley. That's your right. So you don't want to 
say any more, is that what you're saying?
    Ms. Kagan. I think I'll leave it there, given the----
    Senator Grassley. OK. Well, then let me follow up. Do you 
agree that the Supreme Court's decision in Baker v. Nelson in 
1972, holding that the Federal courts lacked jurisdiction to 
hear challenges to State marriage laws ``for want of a 
substantial Federal question'' ? Do you agree with that 
decision? Why or why not? Is it settled law, in other words?
    Ms. Kagan. So I think that that--my best understanding is 
that that decision has some precedential weight, but not the 
weight of a ``normal'' decision. What that decision was, it was 
done under the court's then-mandatory appellate jurisdiction 
and it dismissed the case, for want of a substantial Federal 
question. It dismissed it summarily without hearing arguments 
or reading briefs or whatever, just saying it was not going to 
accept the case under its then-jurisdictional powers.
    My understanding is that there's actually a question about 
what kind of precedential weight such a decision is entitled 
to, and arguments on both sides of that. I think, you know, 
probably the better view or the view that most people hold, I 
think, is that it's entitled to some precedential weight but 
not the weight that would be given to a fully argued, fully 
briefed decision.
    Senator Grassley. So based on Baker v. Nelson, using your 
words, it's not really settled law, even though a one-sentence 
statement as precedent, it says ``the appeal is dismissed for 
want of a substantial Federal question.'' That's a pretty 
simple decision to be based on the Supreme Court. But you're 
saying that this may not be settled law?
    Ms. Kagan. My understanding is that there is sort of a 
question about the precedential effect of those kinds of 
summary dispositions. My--what I--what I think is true, is that 
most people think that those kinds of summary dispositions have 
some precedential weight, but not the precedential weight 
that's given to a fully argued and fully briefed decision.
    Senator Grassley. Well, the decision involved the 
Fourteenth Amendment that was ratified, as you know, back in 
1868, and the case was decided in 1972. What has changed in the 
Fourteenth Amendment since then to warrant a new review under 
the Fourteenth Amendment that this might not be a Federal 
question or that this is not a Federal question?
    Ms. Kagan. Senator Grassley, I think that the--that the 
task for a court is--is, you know, to decide a case that comes 
before it. A case might come before it or might not come before 
it. If it does come before it, the question will be to--you 
know, to consider the facts, to consider the arguments that are 
made, to hear the--to read the briefs.
    Senator Grassley. In regard to that and stare decisis, what 
weight would you give to Baker v. Nelson?
    Ms. Kagan. Well, as I suggested, Senator Grassley, first, I 
think that there was a question about the precedential weight 
to be given to summary dispositions, and I would very much want 
to hear argument and hear briefing about that question and talk 
to my colleagues about that question. My--my best understanding 
is that what most people think is that these summary 
dispositions get some precedential weight, but they--and--but 
they don't get the full weight that a fully briefed, fully 
argued decision gets.
    There is--you can see why people might think that, because 
part of the reason that a decision counts as precedent is 
because it really has been fully considered, that the briefs 
have been read, that the arguments have been heard, that the 
judges have had a chance to talk with each other, and the 
question is whether a summary disposition, because it's done 
kind of, you know, without all that process, gets the full 
precedential weight.
    As I've said, this is--this is--this is not a question on 
which I've thought deeply. I'm sort of expressing to you my 
best understanding of what I take to be kind of the consensus 
position on this, but it's--obviously the question on the 
precedential weight of that summary disposition is itself a 
question for the court to consider and--and I would do so in 
the usual way.
    Senator Grassley. I would only say that I'm disappointed 
that you didn't use the word ``settled law'' in the same 
definitive manner in regard to Baker v. Nelson as you have so 
many other times in the last 2 days. And--well, that's it.
    Chairman Leahy. Well, actually, the answer she gave was 
basic Hornbook law, that generally accepted--totally accepted 
Hornbook law.
    But did you have another question you wanted to ask?
    Senator Grassley. No.
    Chairman Leahy. Because--then Senator Specter. And then 
after Senator Specter finishes--and again, I'd urge Senators, 
if you don't feel you need the whole 20 minutes--I've allowed 
some Republican Senators to go over the 20 minutes because--so 
they could finish up their questions, but if you don't need the 
whole 20 minutes, it will not hurt my feelings or the nominee's 
feelings if you don't use it. But we will then break for lunch 
immediately when Senator Specter finishes.
    Senator Specter. Thank you, Mr. Chairman. I believe that I 
can finish in less than the 20 minutes and yield back some 
time. When I finished my first round, Solicitor General Kagan, 
I was asking you about what cases the court would take, what 
you would do to grant certiorari.
    I went through a number of matters where the power of 
Congress had been curtailed when the court took over the fact-
finding position, but a great deal of what the court decides is 
on the cases they decline to take up. I want to talk to you 
initially about two cases, the Holocaust survivors and the 
survivors or victims of 9/11, two cases that you are intimately 
familiar with because you worked upon them as Solicitor 
General, and I raised these with you in our informal meeting, 
and again by letters which I sent you.
    And here I am not asking how you would decide a case, but 
only whether you would vote to take the case up for decision by 
the court. The Congress, as I've mentioned briefly earlier, has 
the power to direct the court to take certain cases, as the 
Congress did with McKay and Feingold, the flag burning case, 
the Fair Labor Standards Act.
    The Holocaust issue was one where Holocaust victims who 
suffered terribly brought lawsuits against an Italian insurance 
company, and the administration took the position that the 
Supreme Court should not hear the decision by the Court of 
Appeals for the Second Circuit, which decided that the claims 
were preempted by an executive branch foreign policy favoring 
the resolution of such claims through an international 
commission.
    Well, that seems like a wrong decision to make. You have an 
insurance policy. If an insurance company won't pay on the 
claim, you ought to be able to go to court and sue them and not 
to have the governments of the two countries decide what you 
can sue.
    But in any event, it is a different issue as to taking the 
case. Without asking you how you would decide it, would you 
vote to have the Supreme Court consider that case
    Ms. Kagan. Senator Specter, this is difficult for me 
because, as I understand this, this is a live case and I 
continue to represent one of the parties in this case. In other 
words, there may very well be a petition for certiorari in this 
case, but I continue to be Solicitor General and--and would 
head the office that would have to respond to that petition. 
And I think that----
    Senator Specter. If you were on the court you would recuse 
yourself. This would be one of those cases, wouldn't it?
    Ms. Kagan. That is--that is true, Senator Specter. But--but 
I don't want to count my chickens before I am confirmed. I 
still am Solicitor General and I'm the counsel of----
    Senator Specter. Ms. Kagan, you're counting your chickens 
right now. I'm one of your chickens, potentially.
    [Laughter.]
    Chairman Leahy. It reminds me of the Churchill speech to 
Canada, ``Some neck, some chicken.''
    Ms. Kagan. I think I remain Solicitor General unless and 
until this body confirms me, and that means I remain a party in 
this very case that you're--that you're asking me about.
    Senator Specter. Ms. Kagan, I'm asking you how you would 
decide a case, how you--what you would decide on taking a case. 
Would you hear this case or not?
    Ms. Kagan. I--I think I'm going to be responsible for 
responding to the petition for certiorari in this case as 
Solicitor General, unless I'm confirmed to the court, and while 
I'm Solicitor General I don't think that I can say how I would 
vote on a--on a cert response that the Solicitor General will 
be filing.
    Senator Specter. Well, Ms. Kagan, I don't see why not, but 
the clock is running and I'm going to move on.
    The next identical question involves the lawsuit brought by 
the survivors or the victims of 9/11, and there the Court of 
Appeals for the Second Circuit said that the foreign immunity 
statute, which excluded tortious conduct, like flying a plane 
into a building, did not apply. Congress had spoken that a 
country like Saudi Arabia should be liable for this kind of 
tortious conduct.
    And the Second Circuit said no because the Kingdom of Saudi 
Arabia had not been placed on the terrorist list. Well, it had 
nothing to do with the statute. Then as Solicitor General, you 
said that the Second Circuit was wrong, but the Supreme Court 
ought not to hear the case because the conduct by the Saudis 
was outside the country, but the impact was inside the country. 
The question is, would you think that case ought to have been 
heard by the Supreme Court? As a justice, would you vote to 
take that kind of a case?
    Ms. Kagan. Senator Specter, the government did argue, based 
on very extensive consultations, that the Supreme Court ought 
not to take that case, and that continues to be the 
government's position. You know, I don't think it would be 
right for me to undermine the position that we took in that way 
by suggesting that it was wrong.
    It was, in fact, a position of the U.S. Government, in line 
with the interests of the U.S. Government, that I authorized 
and that I thought was appropriate for a number of reasons, 
which--which I'm happy to talk about with you. But--but I--I 
can't say--I mean, I've not said with respect to any of--I 
think that the decisions that I made as Solicitor General on 
behalf of the U.S. Government as my client are ones that I 
can't undermine in this--in this hearing room.
    Senator Specter. Ms. Kagan, candidly, I don't think that is 
any reason not to respond to my question, but I'm going to move 
on.
    We didn't quite finish my question to you of the same 
nature about whether, if confirmed, you would vote to take the 
case involving the Detroit Federal court decision on the 
Terrorist Surveillance Program, which the Sixth Circuit ducked 
on standing grounds with a powerful dissent. The Supreme Court 
denied cert. Would you have voted to take that case? You gave 
me three categories of cases. But I understand your three 
categories of cases, but again, that doesn't answer the 
question: would you vote to take that kind of a case?
    Ms. Kagan. Well, Senator Specter, I do think that this is a 
case that, as I understand it, generally falls within the third 
category of case, a case which presents an extremely important 
Federal issue as to whether the executive has overstepped its 
appropriate authority and has essentially flouted legislation 
in the area. The sort of curlicue on this case does have to do 
with the standing question, with the question whether the court 
has jurisdiction and could reach the merits question, which is 
of such importance. Now----
    Senator Specter. You said all of that yesterday. Would you 
take the case?
    Ms. Kagan. Senator Specter, I've--I've not read the 
petitions, I've not read the briefs in the way that I would as 
a judge. I do think that the standing issue itself is of some 
real importance, and it's of some real importance because it 
goes to the question, who does have standing to--to challenge 
surveillance policies when the very notion of those 
surveillance policies--when--when those surveillance policies 
are confidential and you don't know whether you're being 
surveilled.
    And if nobody does have the ability to come in and say, 
look, I have reasonable grounds to believe that I'm being 
surveilled, if instead one has to show that one absolutely has 
been surveilled, that really does--you know, that very much 
detracts from the ability to ever reach the merits question of 
whether the surveillance is appropriate. So I think for that 
reason, you know, the standing issue is of significant 
importance as well.
    Senator Specter. May I move along? You've had a lot of time 
to take a look at that. We met weeks ago. I sent you a letter. 
But apparently I'm not going to get an answer there either.
    Let me come back to a question which ought to fall squarely 
within the Kagan doctrine of answering the substantive 
question. None of these other reasons would apply. We have the 
rational basis test for deciding whether a record is adequate, 
Maryland v. Wirtz, which I talked to you about--Justice Harlan. 
You have a congruence in proportionality standard. Those don't 
involve specific cases as to what you would decide, they 
involve standards. And certainly that comes within your ambit 
of answering a substantive question: which would you apply, if 
confirmed?
    Ms. Kagan. Senator Specter, as I understand it, the 
congruence and proportionality test is currently the law of the 
court, and not withstanding that it's been subjected to 
significant criticism and not withstanding that it's produced 
some extremely erratic results. And I can't, you know, sit at 
this table without briefing, without argument, without 
discussion with my colleagues and say, well, I just don't 
approve of that test, I would reverse it.
    What I can say is that I understand the criticisms that 
have been leveled against that test. There seems to me real 
force in the notion that a test in this area dealing with 
Congress' Section 5 powers really needs to provide clear 
guideposts to Congress so that Congress knows what it can do 
and knows what it can't do, and so the goalposts don't keep 
changing and so Congress can do what--can pass legislation, 
confident in the knowledge that that legislation will be valid. 
And I think that that those concerns are a very significant 
weight, and--and the question for the future on the court will 
be whether those concerns can be met under the test that's now 
in existence.
    Senator Specter. Ms. Kagan, if you have to discuss with 
your colleagues the kinds of questions that we're raising, that 
I have just raised, you wouldn't answer anything, and perhaps 
you haven't answered anything.
    Ms. Kagan. Well, Senator Specter, I certainly do have to 
rebrief and----
    Senator Specter. Perhaps you haven't answered much of 
anything.
    Ms. Kagan. Senator Specter, I--I do have to read briefs and 
listen to arguments and discuss----
    Senator Specter. Why do you have to read briefs on a 
standard? This is not a specific case, this is----
    Ms. Kagan. This is----
    Senator Specter. This is a standard as to whether the 
rational basis is sufficient or whether you're going to have 
congruence and proportionality.
    Ms. Kagan. Senator Specter, the congruence and 
proportionality test has been a standard that's been adopted by 
the court that is precedent going forward, and you shouldn't 
want a judge who will sit at this table and who will tell you 
that she will reverse a decision without listening to arguments 
and without reading briefs and without talking to colleagues, 
notwithstanding that that person knows that that test has been 
subject to serious criticism.
    Senator Specter. Well, Solicitor General Kagan, I think the 
commentaries in the media are accurate. We started off with the 
standards that you articulated at the University of Chicago Law 
School about substantive discussions, and they say we haven't 
had them here and I'm inclined to agree with them. The question 
is where we go from here. You have followed the pattern which 
has been invoked since Burke, and you quoted me in your Law 
Review article, that ``some day the Senate would stand up on 
its hind legs.''
    It would be my hope that we could find some place between 
voting no and having some sort of substantive answers. But I 
don't know that it would be useful to pursue these questions 
any further. But I think we are searching for a way how 
Senators can succeed in getting substantive answers, as you 
advocated in the Chicago Law Review, short of voting no.
    The other issue which I discussed with you at some length--
and I'm going to wrap up and yield back some time here in a 
minute or so--and that is what, if anything, can be done about 
nominees who drastically abandon positions taken at the 
confirmation hearings. There, I'm pleased with your response on 
television. Brandeis and the famous article he wrote in 1913 
talks about publicity and that is why I think television would 
be so good to tell the public what is going on.
    I would like to put into the record the questioning that I 
made of Chief Justice Roberts, which took 28 of my 30 minutes, 
and his concurring opinion in Citizens United, which is an 
apology, a, really, repudiation of everything he testified to, 
just diametrically opposed. That concurring opinion goes into 
great detail as to why stare decisis ought not to be followed. 
I'd like to have that in the record, Mr. Chairman.
    Chairman Leahy. Without objection, it's part of the record.
    [The information appears as a submission for the record.]
    Senator Specter. I again acknowledge, it's a big difference 
between appearing here at a nomination proceeding as opposed to 
deciding a case in controversy. And I don't challenge Chief 
Justice Roberts' good faith, but it does leave us perplexed as 
to--as to where we head.
    Mr. Chairman, I--thank you Solicitor General Kagan. Thank 
you, Mr. Chairman. I yield back the balance of my time.
    Chairman Leahy. I thank you.
    We will--we will recess. It's now 1:10. Let's be back here 
about 2:10. Thank you. We stand in recess.
    [Recess 1:10 p.m. to 2:09 p.m.]
    Chairman Leahy. I welcome everyone back. I couldn't help 
but notice that General Pontier Kennedy is in the second row, 
the first woman to achieve the rank of three star general in 
the United States Army. And the whole thing will be put in the 
record. But I appreciate very much, General, what you wrote. 
And I'll just read one paragraph of it.
    General Kennedy said, ``I commanded both intelligence and 
recruiting units in my career in the military. Based on my 
experience in military recruiting, I am completely confident 
that Elena Kagan is a strong supporter of our men and women in 
uniform and appropriately handled military recruiting policies 
at Harvard Law School by ensuring they had full access to the 
student body during her tenure. I am pleased to be here today 
to lend my support to her confirmation.'' We will hear more 
later, but that will be part of the record.
    I believe, Senator Kyl, you're----
    Senator Kyl. Once again we play to a packed crowd here.
    Senator Leahy. Well, that's because I think everybody has 
asked most of the questions. But somebody has a ``few'' more.
    Senator Kyl. Well, Mr. Chairman----
    Senator Leahy. Notice the emphasis on ``a few''----
    Senator Kyl. I've actually got some different questions and 
because of the limited time, I will ask you, please be as 
succinct as you can and I may interrupt you if I feel we have 
to move on.
    Let me first of all ask you about a letter that Senator 
Graham raised with you but did not ask the two questions I 
have.
    November 14th, 2005, this related to an amendment that he 
and I and Senator Cornyn had filed to limit the jurisdiction of 
the courts on habeas petitions by aliens held Guantanamo.
    Now, first I have to tell you, I considered your language 
injudicious when you compared our actions to, and I'm quoting 
now, ``the fundamentally lawless actions of dictatorships'' and 
I wonder why you felt--obviously you felt strongly about this, 
or you wouldn't have used those words, but why did you feel it 
necessary to describe what we were proposing in those terms?
    Ms. Kagan. Senator Kyl, I don't think we did, or at the 
very least we did not mean to compare you to dictators. The 
only thing that the letter was meant to say was that we should 
hold ourselves to very high standards, at least as high, or 
higher, than the standards that we would apply to 
dictatorships. And those were the standards that we were urging 
Congress to hold itself to in considering this legislation. And 
Congress in fact did. I mean, within a matter of day Congress 
came together, 84 to 15, a remarkable act of bipartisanship and 
passed a very good piece of legislation which did provide our 
Article 3 review of----
    Senator Kyl. Excuse me.
    Ms. Kagan--[continuing]. Determinations.
    Senator Kyl. There was more to it than that though. You 
suggested in the letter that the habeas rights of which you 
were speaking should apply beyond Guantanamo to foreign 
theaters of war. You wrote it, I'm quoting now, ``We cannot 
imagine a more inappropriate moment to remove scrutiny'' and 
the scrutiny means is equivalent here to habeas jurisdiction 
``of executive branch treatment of non-citizen detainees. We 
are all aware of serious and disturbing reports of secret 
overseas prisons, extraordinary renditions, and the abuse of 
prisoners in Guantanamo, Iraq, and Afghanistan.''
    Now, abuses existed in all three places. The obvious import 
of the argument was that the reach of habeas should extent to 
Guantanamo, Iraq, and Afghanistan.''
    Ms. Kagan. Senator, I think that the focus of the letter as 
the focus of everybody's attention at that time was on the 
Guantanamo detainees. And as you know I, as Solicitor General, 
I've advocated strongly and I've made sure that my name 
appeared as counsel of record on the U.S. Government's Bagram 
brief because I believed that the United States has very strong 
interests in this in the----
    Senator Kyl. Here's my question. That is the position you 
took as Solicitor General dealing with the rights of habeas 
Bagram. You expressed a personal opinion before that. This 
issue could well be presented to the Court and what I want to 
know is whether or not it will be the position you argued on 
behalf of a client, the United States, where what was 
personally in your heart and caused you to write with such 
passion to members of the Senate here?
    Ms. Kagan. Well, the letter, I do think, was focusing on 
Guantanamo detainees and was focusing on two questions----
    Senator Kyl. But it wasn't limited and you specifically 
went out of your way to include also Iraq and Afghanistan in 
the same clause.
    Ms. Kagan. I think we can argue about the letter, the 
legislation and what every----
    Senator Kyl. What is your personal view then, that it would 
not apply to Bagram just to use a very specific example?
    Ms. Kagan. The----
    Senator Kyl. As you argued in the McCala case?
    Ms. Kagan. Senator Kyl, I'm Solicitor General. The view 
that I have advocated, and I have advocated it strongly, 
including by signing my name on a Court of Appeals brief, which 
the Solicitor General almost never does, is that habeas should 
not extend to Bagram.
    Now, I couldn't comment, I would be recused from that case 
that I signed my name on. This decision might come to the 
Court--excuse me, this question----
    Senator Kyl. If I could just interrupt. You understand what 
I'm asking you. If a case similar to that came to the Court and 
you didn't recuse yourself, I don't know whether you take the 
position that you argued on behalf of a client or you take the 
position that was apparently on your heart when you wrote this 
letter to us.
    Ms. Kagan. Well, Senator Kyl, I don't think that that 
letter expresses view on the question of habeas rights at 
Bagram. I think that that letter was focused on the Guantanamo 
issue.
    Senator Kyl. Well, then it was gratuitous that you included 
the phrase, ``we are all aware of serious and disturbing 
reports of secret overseas prisons, extraordinary renditions, 
and the abuse of prisoners in Guantanamo, Iraq and 
Afghanistan.''
    Ms. Kagan. I think that that's just a description of what 
we were aware of. But the focus of the letter----
    Senator Kyl. You also said in the letter, and I'm quoting 
now, ``unfortunately the Graham Amendment would prohibit''
    Senator Leahy. You'll have extra time if need be, but let 
her answer the question.
    Senator Kyl. I'm happy to do that, but we don't have a lot 
of time and I'm going to pretend like I'm a Supreme Court 
Justice for 14 minutes and you're still the Solicitor General 
and I will interrupt you if I think we need to move on.
    In the letter you said, ``unfortunately the Graham 
Amendment would prohibit challenges to detention practices, 
treatment of prisoners, adjudications of their guilt and their 
punishment.''
    It's pretty clear you were saying that habeas should be 
available to challenge all aspects relating to detainees 
including their treatment or conditions of confinement. Neither 
the Bagram case nor the MC authorized habeas claims to 
challenge conditions of confinement or treatment. Do you 
believe that the treatment of prisoners should be a subject of 
habeas in these cases?
    Ms. Kagan. Senator Kyl, I don't believe that that is a 
question that has come before the Courts. And given that----
    Senator Kyl. It has not, you're right.
    Ms. Kagan.--I would not want to suggest how I would decide 
that question ?
    Senator Kyl. But you have suggested how you would decide it 
by saying, ``unfortunately the Graham Amendment would prohibit 
challenges to detention practices, treatment of prisoners'' and 
so on. So you've expressed a personal opinion about that. And 
why shouldn't I assume that you would bring that personal 
opinion to the bench?
    Ms. Kagan. Senator Kyl, what we expressed in that letter 
was opposition to the totality of the initial Graham Amendment, 
not the Graham/Kyl/Levin Amendment that eventually passed. 
There were a number of things about that amendment that we 
thought went too far. I think we were stating the full extent 
of the amendment's effect. But I don't think that that letter 
can fairly be read to express a legal view as to each of the 
particular----
    Senator Kyl. I absolutely disagree with you about that. I 
dealt with habeas to challenge the detention practices, 
treatment of prisoner, adjudications of their guilt, and their 
punishment. That's what the letter specifically said. I quoted 
it accurately here.
    Ms. Kagan. Senator Kyl----
    Senator Kyl. Now we later changed the amendment to only 
relate to the determination of guilt and punishment. We left 
out the treatment of prisoner aspects of it because as you know 
that brings in a whole host of huge problems for the Courts. 
And if we were to bring that in to our military justice system 
it could grind it to a halt. Go ahead.
    Ms. Kagan. Senator Kyl, my view of that letter or my view 
of just my current state of mind is that I have no preexisting 
views on the way I would approach, as a judge, the sort of 
questions that you are asking me about.
    Now, you know, I am perfectly happy to go back to that 
letter and to try to parse it as carefully as you are parsing 
it, and to see whether it expressed a point of view--expressed 
a view as to a particular legal issue that might come before 
me. And if I think that the letter does express a very 
particular point of view on a particular issue that might come 
before me, as in all such cases, I will certainly consider that 
fact, talk to my colleagues about that fact in determining 
whether recusal is appropriate.
    Senator Kyl. I think that's appropriate. And I may offer 
something else to you. And I invite you to do this. I'll 
probably have a couple of questions for the record anyway. Take 
a look at the record, and if you want to expand in any way on 
what you've commented on here, or make any other point to that, 
please do that in writing and that way you'll have the full 
time to think about it and comment on it in whatever way you 
would like to.
    Let me switch subjects here. During the Solicitor General 
hearing--the hearing for your nomination as SOMETHING, you said 
in response to question by Senator Cornyn, quote, ``There is no 
Federal constitutional right to same-sex marriage.'' Now, to me 
that means the Constitution cannot properly be read to include 
such a right. Is that what you meant to say?
    Ms. Kagan. Senator Kyl, that question was asked me in my 
role as Solicitor General. The question came to me from Senator 
Cornyn because Senator Cornyn acknowledged and stated what is 
true which is that I had opposed and stated opposition to the 
``don't ask, don't tell'' policy and Senator Cornyn asked me, 
given that stated opposition, could you perform the role of 
Solicitor General and particularly, I think, could you with 
appropriate vigor defend the constitutionality Doma?
    And my answer was meant to say, yes, I absolutely could 
defend vigorously the constitutionality of Doma, that I 
understood what the state of the law was and that I understood 
what my professional responsibilities were. And if that case 
had come to the Supreme Court this year, I certainly would have 
been at the podium----
    Senator Kyl. With all due respect, Doma's constitutionality 
is a different question than your statement. And there were no 
qualifications on it, you said, ``there is no Federal 
constitutional right to same-sex marriage'' period. Now, are 
you qualifying that now? Are you saying that you meant 
something different by those clear words that you expressed to 
Senator Cornyn? And I didn't take it out of context.
    Ms. Kagan. I was absolutely saying that I understood the 
state of the law and that I accepted the state of the law----
    Senator Kyl. So you're only saying then that as of right 
now the Court hasn't declared there to be a Federal 
constitutional right; is that all you're saying?
    Ms. Kagan. I am saying that I very much understood, 
accepted the state of the law and that I was going to perform 
all my obligations as Solicitor General consistent with that 
understanding and consistent with that acceptance.
    Senator Kyl. So you wouldn't tell us today then whether you 
believe that the Constitution could be properly read to include 
such a right?
    Ms. Kagan. I don't think that that would be appropriate. As 
Senator Grassley and I talked about, there is a case that's 
pending, the case may or some other case might come before the 
Court, and so I couldn't go any further than that.
    Senator Kyl. So then when you said, ``there is no Federal 
constitutional right to same-sex marriage'' what you meant by 
that was the Court has not held that there is a Federal 
constitutional right to same-sex marriage?
    Ms. Kagan. The question was, could I perform my 
responsibilities as Solicitor General? Did I understand the 
law, did I accept the state of the law? And the answer was yes 
as to both.
    Senator Kyl. The two Arizona--or the Arizona case I was 
talking to you about before our last questioning concluded, the 
Chamber of Commerce v. Candaleria case, I wanted to ask some 
more questions. But let me just ask you one case--or one 
question about that case. And then also another case called 
Lopez Rodriguez v. Holder, you might remember this was a 9th 
Circuit case that applied the exclusionary rule to civil 
immigration proceedings. And you declined on behalf of the 
government to ask the Court to take that case.
    What I wondered is--and I found that rather remarkable 
since there was a split in the circuit. The Supreme Court had 
already spoken on it, there was a significant constitutional 
issue involved, obviously a question of significant political 
importance and yet you chose not to suggest that the Court 
should take that case, but rather to suggest the Court take the 
Arizona case which didn't involve any of those considerations.
    Nonetheless, my question is this, were either of those 
cases that were your decision to take them influenced by any 
political considerations? And I say that broadly, meaning, for 
example, any contact from the White House or officials at the 
Executive Office of the President or contacts of that sort in 
either of those two cases?
    Ms. Kagan. Senator Kyl, I'm persuaded that we made the 
correct decision on the law in both of those cases. I don't 
think that I can talk about internal deliberations of the 
Solicitor General's office whether with respect to the White 
House or otherwise.
    Senator Kyl. So you cannot tell the Committee whether or 
not there was any contact irrespective of the content of the 
contact?
    Ms. Kagan. Senator Kyl, I don't think it would be right for 
me to talk about, you know, particular contacts and particular 
cases. That that counts as sort of internal deliberations. I do 
think that we made the right decision on the law for the United 
States' interests in both of those cases.
    Senator Kyl. I think that there wouldn't be anything wrong 
with the Committee understanding whether or not your decision 
was based on considerations other than purely legal, especially 
if it came in the form of requests by the White House or people 
within the White House because of the rather political nature 
of these two cases. I mean, it wouldn't be surprising, in a 
way, that there would be a lot of political interest in this. 
It would be surprising if the Solicitor General's office became 
involved in cases or took positions in cases based upon the 
political advice or efforts. You don't think that that wouldn't 
be an appropriate inquiry for us?
    Ms. Kagan. Senator Kyl, the Solicitor General's office 
does, from time to time, and I think that this is true in every 
administration, have some communications with members of the 
White House with respect to particular cases. That is not a 
surprising thing and I think it's true in every administration. 
But I don't think it would be right to talk about internal 
deliberations in any particular case and I do think that as to 
both of those cases that you mentioned the Solicitor General's 
office made the correct decision on the law, on the legal 
principles that were involved for the United States as a 
client.
    Senator Kyl. I'm sure you can defend your position. You do 
that admirably. But, it seems to me that simply noting whether 
or not there were such contacts would not be an inappropriate 
thing for you to provide to the Committee.
    Let me ask you one more time about foreign law because 
there have been several different iterations of this. Senator 
Grassley asked you and I have an exaction quotation of what you 
said in response to that, you said, ``while you were in favor 
of good ideas coming from wherever you can get them, the judges 
shouldn't be bound by foreign legal precedent.'' Now, that's 
a--and you closed by saying, ``fundamentally we have an 
American Constitution and our Constitution is our own.''
    I've seen that formulation before and I'm troubled by it. 
Because it suggests that you could turn to foreign law to get 
good ideas, but that, of course, you wouldn't be bound by 
foreign legal precedent. I doubt that anybody who uses foreign 
law would suggest that they are bound by foreign legal 
precedent, but it hasn't stopped them from using foreign 
precedents legal and otherwise.
    And so I'm back to the question of whether you believe that 
decisions of foreign courts or laws enacted by foreign 
legislators--legislatures should have any bearing on U.S. court 
interpretation of the U.S. Constitution?
    Ms. Kagan. Senator Kyl, I do believe that this is an 
American Constitution. That one interprets it by looking at the 
structure, our own history, and our own precedents. And that 
foreign law does not have precedential weight.
    Now, in the same way that a judge can read a Law Review 
article and say, well, that's an interesting perspective or I 
learned something from it, I think that so too a judge may read 
a foreign judicial decision and say, well, that's an 
interesting perspective, I learned something from it. Suppose, 
you know, we have a Fourth Amendment exclusionary rule--suppose 
that----
    Senator Kyl. Excuse me. Of what relevance is that to the 
U.S. Constitution? We have many things other countries don't 
because we have a unique Constitution.
    Ms. Kagan. I'm just trying to suggest that it's of the same 
kind of relevance that it would be if you read a Law Review 
article about a similar subject.
    Senator Kyl. OK. What you are telling me is then that you 
would look to foreign law, you might relate it to the issues in 
the case, would you cite it in an opinion as an interesting 
idea, not legally binding, of course, but supportive of your 
position?
    Ms. Kagan. I said yesterday when I talked about the 
subject, I said that--I used as an example a brief that the 
Solicitor General's office had filed on the Foreign Sovereign 
Immunities Act. When we filed that brief we talked about what 
some other countries had done on the Foreign Sovereign----
    Senator Kyl. Because you thought it might appeal to some of 
the members of the Court?
    Ms. Kagan. Because----
    Senator Kyl. Right or not?
    Ms. Kagan.--the question of how one should look to the 
Foreign Sovereign Immunities Act and whether officials should 
be held liable is a question that a number of nations have 
tried to deal with. And in the same way that one might point to 
Law Review articles on the subject. I don't think that foreign 
opinions should be out of bounds in that way. But I do think 
that they do not have any kind of precedential weight. That 
they are not any kind of ground--independent ground for making 
a decision----
    Senator Kyl. I just wondered why you take the space then to 
include them in an opinion.
    Let me ask you one final question. And, by the way, this is 
thanks--you might have caught George Will's column June 28th in 
the Washington Post suggesting some questions for Elena Kagan. 
I don't know if you saw that or not. This is one that I didn't 
tell you that I would ask you and I apologize. But I'm just 
going to quote from one question.
    He said, ``Some persons argue that our Nation has a living 
Constitution. The Court has spoken of the evolving standards of 
decency that mark the progress of a maturing society. But 
Justice Anton Scalia speaking against changeability and 
stressing that the whole anti-evolutionary purpose of the 
Constitution says its whole purpose is to prevent change to 
embed certain rights in such a manner that future generations 
cannot readily take them away. The society that adopts a bill 
of rights is skeptical that evolving standards of decency 
always mark progress and that societies always mature as 
opposed to rot.'' Is he wrong; George Will and I ask?
    Ms. Kagan. I think we have a Constitution and it's the same 
Constitution that we've always had putting aside the Article 5 
Amendment process. And that it is meant to endure for the ages. 
The Constitution does not change, but it is--it is asked to 
apply and Courts must apply it to changing circumstances and to 
changing conditions. And in the course of that application 
there is development in constitutional law. The Constitution 
itself is fixed and the Constitution itself is binding.
    Senator Kyl. Thank you.
    Mr. Chairman, since I think you've indicated that you would 
like to conclude the Solicitor General's testimony at the end 
of this round, I'll pose a couple of other questions including 
one relating to the reach of the commerce clause in questions 
for the record.
    Senator Sessions. Mr. Chairman, are you suggesting Senator 
Kyl that--I was a few moments late, was there an agreement 
that----
    Senator Kyl. No, no agreement.
    Senator Sessions.--not have a third round and just finish 
with this round?
    Senator Leahy. How much longer would you need to ask your 
questions?
    Senator Kyl. Well, I just really had the one other 
question, but I don't want to take my colleague's time.
    Senator Sessions. OK. I just didn't know----
    Senator Kyl. I'd be happy to take the time when they're 
done, Mr. Chairman.
    Senator Leahy. Well, if you want, rather than have to have 
you come back. I did mention earlier before you came in on a 
specific time, but because things have changed so much because 
of the situation with basically 3 days of funerals. So if you 
have a further question ask it.
    [Simultaneous conversation.]
    Senator Kyl. Let me just throw it out--and I know that at 
least Senator Coburn and Senator Cornyn have had the same 
question. In response to some of the other questions it appears 
to me that what you were saying about the commerce clause is 
that essentially if there is sufficient commerce--effect on 
interstate commerce, that it's not the Court's job to look 
behind a Congressional act. That's the test. If that test is 
satisfied and it's a reliance on the commerce clause, then 
that's it.
    And it seems to me that that's overly broad because the 
whole point of the Court's rule is to interpret what is 
permitted under the Constitution and that, of course, the Court 
could say precisely what I just articulated as the test. As 
long as you can show some degree of interstate commerce then 
you have a right to legislate in that area.
    My question is, though, whether that really would be an 
abdication by the Court of its responsibility to interpret that 
article of the--that part of the Constitution and whether you 
see any limit on the application of the interstate commerce 
clause other than a degree of sufficient commerce.
    Ms. Kagan. Well, the Court has interpreted the commerce 
clause broadly, not in an unlimited way, but broadly. I agree 
with you, Senator Kyl, that the Court has an important role to 
play in this as in any area in order to ensure the government 
does not overstep its proper authority.
    We live in a government of limited and enumerated powers. 
The government cannot exercise authority beyond--excuse me, the 
Federal Government, Congress, cannot exercise its powers beyond 
the authority that the Constitution provides. The commerce 
clause has been understood to give Congress wide authority in 
this area. The general view has been that regulations affecting 
interstate commerce primarily are the prerogative of Congress 
and not of the Courts. The Courts ought to defer.
    Defer does not mean abdicate and there remains an important 
role to play. The limits that have been set and that exist 
currently are the limits that appear in the Morrison and the 
Lopez case which separates out non-economic activity from 
economic activity and talks as well about areas which are 
traditionally the prerogative of the states. Those are the 
limitations that the Court's current doctrine imposes. I treat 
those limits as precedent going forward and for sure would not 
think that it's appropriate to abdicate in this are but do 
think that deference is generally correct with respect to 
economic legislation.
    Senator Kyl. I appreciate your answer. Thank you.
    Senator Leahy. Incidentally, I have a quote here, there are 
other legal issues that come up in which I think it's 
legitimate to look to foreign law. For example, if a question 
comes up concerning the interpretation of a treaty that has 
been entered into by many countries, I don't see anything wrong 
with seeing the way the treaty has been interpreted in other 
countries and other--look at their foreign law. I wouldn't say 
that's controlling, but it's something that's useful to look 
to. That's what Justice Salito said in his confirmation 
hearing. I don't recall anybody disagreeing with him. Do you 
disagree with that?
    Ms. Kagan. No, that sounds right.
    Senator Leahy. Thank you.
    Senator Graham.
    Senator Graham. Thank you, Mr. Chairman.
    I don't think I'll need a third round, but I would ask 
maybe a little bit of indulgence to go over--if we can't get 
through it all very quickly. Are you familiar with Plessy v. 
Ferguson?
    Ms. Kagan. Yes, sir.
    Senator Graham. I think most people are. It's an 1896 case 
and it interpreted the equal protection clause how? What did it 
say?
    Ms. Kagan. It said that separate but equal facilities were 
consistent with the equal protection clause.
    Senator Graham. OK. Now, that's in 1896. And do you know--
are you familiar with Justice Henry Billings Brown?
    Ms. Kagan. I feel as though I should be, but I'm going to 
say no.
    Senator Graham. Well, you don't want him to be your hero, 
trust me. Here's what he said in 1896. ``We consider the 
underlying fallacy of the plaintiff's argument too consistent 
in the assumption that the enforced separation of the two races 
stamps the colored race with a badge of inferiority. If this be 
so, it is not by reason of anything found in the Act, but 
solely because the colored race chooses to put that 
construction on it.''
    Now, that was the majority holding, one of the holdings, 
and it didn't change until 1954. So, to conservatives and 
liberals alike who believe that precedent can never change a 
case, this is a good example where I think we're all glad the 
case change. Because this is what happened in 1954-55.
    Justice Warren: ``To separate them from others of similar 
age and qualifications solely because of their race generates a 
feeling of inferiority as to their status in the community that 
may affect their hearts and minds in a way unlikely ever to be 
undone. Whatever may have been the extent of psychological 
knowledge at the time of Plessy v. Ferguson, this finding is 
amply supported by modern authority.''
    So, if you could, this could be a little bit of a teaching 
moment, nothing changed in the Constitution word-wise, did it?
    Ms. Kagan. It did not.
    Senator Graham. So it's the same words, looked at 50-
something years apart with a different conclusion. How could 
the Court do that and be consistent with strict 
constructionism?
    Ms. Kagan. Well, Senator Graham, I guess a couple of 
things. The words of the Constitution did not change. But two 
things did change. The precedents changed and understandings 
and circumstances in the world changed. So the precedents 
clearly did change. Brown was not a thunderbolt from the blue.
    Senator Graham. It was the last in a line of decisions; 
right?
    Ms. Kagan. It was the last in a long line of decisions. And 
one of Justice Thurgood Marshall's--his greatest accomplishment 
was to lead up to Brown, step by step, by step, case by case, 
by case. As an advocated, of course, you can have a strategy 
like that, and he did. And by the time the Court got to Brown, 
upholding Plessy actually would have been inconsistent with a 
series of other holdings that it had reached over the years. 
And I do think that that sometimes happens in constitutional 
interpretation. It also happens--I mean, we've talked a lot 
about the doctrine of precedent and about one reason to reverse 
a decision is when its doctrinal support has been completely 
eroded. And I think that that is what happened in Brown. By the 
time the Court reached Brown ?
    Senator Graham. And I think most Americans if not universal 
as close to universal as we'll ever get as a nation are glad it 
happened in this case.
    Now, there's another Court decision called Roe v. Wade 
that's being changed over time, being interpreted differently 
over time. The Court basically held that before viability the 
right to have an abortion was--of a state imposed limitations 
on abortion was almost non-existent. After viability it was 
sort of the balancing test. Is that a general statement of Roe 
v. Wade over time?
    There's a difference between viability and post-viability 
in the eyes of the Court.
    Ms. Kagan. As I understand the law after Casey, it's that 
after viability the state can regulate as it pleases except for 
situations where the woman's life or health interests are at 
issue. Before viability the question is whether there is an 
undue burden----
    Senator Graham. Right.
    Ms. Kagan.--on the woman's ability to have an abortion.
    Senator Graham. Right. Is it fair for the Court to consider 
scientific changes when a fetus becomes viable as medical 
science evolves?
    Ms. Kagan. Senator Graham, I do think that in every area 
that it is fair to consider scientific changes. I've talked in 
the past about how different forms of technology influence the 
evolution of the Court's Fourth Amendment jurisprudence.
    Senator Graham. I'm glad to hear you say that because just 
a sit would have been wrong to not consider the changes of how 
society had evolved versus segregation of young children based 
on race. I hope the Court would consider the modern concept of 
the viability in the 21st century and whatever protection you 
could give the unborn would be much appreciated on my part by 
considering science, not your personal feelings, because I 
think it's appropriate for the Court to do so.
    Now, let's talk about Harvard. It's a great institution, 
someplace I couldn't have got in, so that makes it, you know, 
special because if you'd let me in it wouldn't be special.
    Ms. Kagan. I would have taken you.
    [Laughter.]
    Senator Graham. Not with my SAT scores, I couldn't even 
play football at Harvard.
    [Laughter.]
    Senator Graham. Now, this ``don't ask, don't tell'' policy 
you thought to be unwise and unjust. Is that--you said, that, I 
believe?
    Ms. Kagan. I did, Senator Graham.
    Senator Graham. And you know what, I think a lot of 
Americans agree with you; some do and some don't. So the fact 
that you have political opinions different than mine is 
absolutely OK and I hope the Committee will in the future let 
that concept work both ways.
    I think the problem that Senator Sessions has--it's one 
thing to have strong feelings, the policy was not set by the 
military it was a Congressional enactment which you thought to 
be unwise and unjust. Now, I don't doubt your affinity and 
admiration for the military. You can disagree with the don't 
ask, don't tell policy and still respect the military. I 
believe that about you and about a lot of other people. The 
problem I have is it was the law of the land. Did other schools 
at Harvard prevent military recruiters from coming to interview 
their students, or was it just the law school?
    Ms. Kagan. Senator Graham, I honestly don't know the answer 
to that. I don't know what other schools, you know, have 
employers come and how they do it and I don't know whether any 
other schools have particular policies respecting this.
    Senator Graham. You don't know if it was--obviously it 
wasn't a campus-wide ban because the recruiters did meet with 
law students somewhere else on campus; is that correct?
    Ms. Kagan. Senator Graham, the recruiters could have met on 
campus as well.
    Senator Graham. That's what I'm saying, it wasn't a ban, it 
was just--they couldn't come to the law school?
    Ms. Kagan. And could have met on the law school campus. The 
only restriction that we put on was that the Office of Career 
Services couldn't provide assistance.
    Senator Graham. Which is the place where most students met 
employers?
    Ms. Kagan. No, it's just an office, really. I mean, most--
95 percent of interviews from employers at Harvard Law School--
--
    Senator Graham. Well, here's the point, it's clearly not 
just an office. It was a political statement that you were 
making, I think. Maybe I'm wrong, but it seems to me you were 
making a political statement. You're not taking the law in your 
own hands, but you were trying to make a political statement on 
behalf of the law school that this office is not going to be 
used by the military because we don't like this policy; is that 
a fair statement or not?
    Ms. Kagan. Senator Graham, I think what I was trying to do 
was on the one hand to ensure military recruiting, on the other 
hand to enforce and to defend the school's very long standing 
anti-discrimination policy. So it wasn't me making a political 
statement; it was me as Dean of the Law School, and that's what 
I was, I had an institutional responsibility as Dean of the Law 
School trying to defend an anti-discrimination policy that had 
existed for, I don't know, 25 years, and----
    Senator Graham. Well, did it apply to the Catholic Church 
if they wanted to come and recruit lawyers from the law school 
because they don't have women priests?
    Ms. Kagan. Well, the way we enforce this policy is if an 
employer comes, we give the employer a form. And the form 
basically says, you know, I comply with the following policy. 
And it says, ``I will not discriminate on the basis of'' and 
then it says something like, race and creed, and gender, and 
sexual orientation, and actually veteran status as well. And if 
the employer signs the form the employer can get the services 
of the Office of Career Services. And if not, not.
    Senator Schumer. So it wasn't a political statement on your 
behalf at all? You weren't trying to tell the world what 
Harvard Law School thought about this policy?
    Ms. Kagan. It was not, Senator Graham. I was just trying to 
defend a very long standing and----
    Senator Graham. It would have been OK with me if it was, I 
just disagree with you, but I'll take you at your word.
    Now, you were an advocate for--you were a lawyer who played 
an advocate role in the Clinton Administration regarding 
formulation of policy; is that correct?
    Ms. Kagan. I was two things in the Clinton Administration. 
I was a lawyer for about half the time and I was a policy 
person for about half the time.
    Senator Graham. OK. Well, when it came to the partial-birth 
abortion debate, there's a memo that we have here that talks 
about if certain phrases were used by the--what was the group, 
ACOG, what was the acronym?
    Ms. Kagan. The American College of Obstetricians and 
Gynecologists.
    Senator Graham. As I understand it, they were going to 
issue a statement that you thought would be a disaster and you 
wanted to get the full statement into place. Was that because 
you were worried that if you didn't get what you wanted in 
place the Court might seize upon that statement and make a 
different ruling based on science?
    Ms. Kagan. No, sir. It was not. I mean, my--this was----
    Senator Graham. Well, Ms. Kagan, I'm shocked that you say 
that because if I believe the way you do, that's exactly what I 
would want. If I really did believe that partial-birth abortion 
as being proposed was too restrictive, and I think you honestly 
believe that, that you wanted to have the broadest definition 
possible when it came to partial-birth abortion to allow more 
cases rather than less, that I would have been motivated to get 
the language most favorable to me. And are you saying you 
weren't motivated to do that?
    Ms. Kagan. Senator, I was working for a President who had 
clear views on this subject.
    Senator Graham. But you were trying to take him to an area 
where he even felt a bit uncomfortable. You were advocating, 
from what I can tell, a broader view of how partial-birth 
abortion would be interpreted. That when you met with the 
professional community, the doctors, they informed you early on 
in a private meeting, according to the record we have, that 
there would be very few cases where an abortion would be 
allowed under the way this thing was written. And somebody with 
your background and your view of this issue, to me that seemed 
disturbing and you were trying to change that and broaden it; 
is that not true?
    Ms. Kagan. With respect, Senator, it's not true. I had no 
agenda with respect to this issue.
    I was trying to----
    Senator Graham. Wait a minute. Wait a minute. I certainly 
have an agenda when it comes to an abortion. I respect the 
Courts, but I'm trying to push the rights of the unborn in a 
respectful way. You can be pro-choice and be just as patriotic 
as I am. You can be just as religious as anybody I know, but 
that's the point here. It is OK as an advocate to have an 
agenda. I think Alito and Roberts had an agenda. They were 
working for a conservative president who was pushing 
conservative policies.
    So it just is a bit disturbing that you quite frankly say 
you don't have an agenda when you should have had. If I'm going 
to hire you to be my lawyer, I want you to have my agenda. I 
want it to be my agenda.
    Ms. Kagan. I was trying to implement the agenda of the 
United States President whom I worked for. So I was----
    Senator Graham. Did you have a personal belief that 
partial-birth abortion was--as being proposed was too 
restrictive on a woman's right to choose?
    Ms. Kagan. I was, at all times, trying to ensure that 
President Clinton's views and objectives with respect to this 
issue were carried forward. And President Clinton had strong 
views with respect to this issue.
    Senator Graham. But here's the issue between being a lawyer 
and a policy person in a political shop. I would--I just want 
to try the best as I can. It's OK if you did. I expect that 
presidents are going to hire talented, intellectually gifted 
people who think like they do that will push the envelope when 
it comes to that law. And the record is replete here on this 
issue and others, you were pushing the envelope in terms of the 
left side of the aisle. I think the record was replete with 
Alito and Roberts that they were pushing the envelope on the 
other side. And that may make you feel uncomfortable. I hope it 
doesn't. I just believe it to be true and you don't agree with 
me there.
    Ms. Kagan. Senator Graham, the two of us have agreed on 
many things over the course of this hearing and----
    Senator Graham. But we don't agree on this?
    Ms. Kagan--[continuing]. But we don't agree on this.
    Senator Graham. That's fair.
    Ms. Kagan. But what I tried to do was to implement the 
objectives of the president on this issue. At the same time to 
provide the president with the best legal advice, straight 
objective as I could.
    Senator Graham. Fair enough.
    Ms. Kagan. And when I became a policy person to enforce and 
to ensure that his policy views were carried out.
    Senator Graham. I just quite frankly am surprised to hear 
that because if I believe the way you did and I had the 
opportunity to serve at that level, I would do everything I 
could to push the law in my direction in a way that was 
ethical. And I didn't see anything you did that was unethical. 
I did see an effort on your part to push the law in a direction 
consistent, I think, with the Clinton Administration and your 
political beliefs which is absolutely fine.
    An activist judge is something none of us like, apparently. 
Nobody on that side likes it and nobody on our side likes it. 
Help me find one.
    Ms. Kagan. I'm sorry?
    Senator Graham. Help me find one. Can you think of anybody 
in the history of the United States that was an activist judge? 
Because we don't like these people. It seems to me an activist 
judge is somebody who rules the way we don't like. And it's 
getting to be no more sophisticated than that and I would like 
it to be more sophisticated than that. So, what is your 
definition of an ``activist judge'' ?
    Ms. Kagan. Well, Senator Graham, I think my definition is 
somebody who doesn't take three principles to heart. The first 
principle is deference to the political branches in making the 
policy decisions of this Nation, because that's who ought to be 
making the policy decisions of this Nation.
    The second principle is respect for precedent. Precedent as 
a doctrine of constraint and humility. And also stability in 
the law.
    And the third principle is deciding cases narrowly. 
Deciding them one at a time, deciding them on narrow grounds if 
one can, avoiding constitutional questions if one can.
    Senator Graham. Well, our guys say that Justice Marshall 
was an activist judge; do you agree with that?
    Ms. Kagan. Senator Graham, I'm not going to characterize 
any Justice as an activist judge, as a restrained judge. I 
think the best I can do is to set forth the principles that I 
think are appropriate and to say that if I'm so lucky--if I'm 
lucky enough to serve, Justice Kagan would abide by those 
principles.
    Senator Graham. And I totally understand the dilemma you're 
in. But we keep using that term and Justice Marshall will go 
down in history as one of the icons of the law and one of the 
greatest justices in the history of the country even though I 
disagree with a lot of his rulings. That's the way it should 
be. If our people say that's activism, so be it. I hope Justice 
Roberts, which I think is one of the most gifted--
intellectually gifted people I've ever met--is being called by 
my colleagues on the other side, for 2 days now, an activist 
Court. And we've got somebody is wanting to be on the Court. 
Can you name one person in the United States that you think 
would be an activist judge, living or dead?
    Ms. Kagan. You know, I have a feeling that if I do that I'm 
going to end up doing many things that I regret.
    [Laughter.]
    Senator Graham. Well, here's what I regret, I regret all of 
us throwing these terms around without any--any definition to 
it other than we just--you know, we believe the way they judge 
is just not the right way.
    Now, Judge Barak, if this guy is not an activist judge, I 
don't know who would be. Now, he's an Israeli judge, so maybe 
we shouldn't talk about Israeli activism because that's foreign 
activism, but I'm going to go ahead and do it anyway. If 
Senator Kyl doesn't mind.
    Here's what Judge Barak said, ``the judge may give a 
statute a new meaning, a dynamic meaning that seeks to bridge 
the gap between law and life's changing reality without 
changing the statute itself. The statute remains as it was, but 
its meaning changes because the Court has given it a new 
meaning that suits a new social''--``that suits new social 
needs.'' What the hell does that mean?
    Ms. Kagan. I think it means that the Court can change a 
statute and I think that that's wrong.
    Senator Graham. I think the fact that you don't like what 
he said makes me feel better about you because this is so 
nebulous and so empowering to a judge it would make an elected 
official like me feel very worried that the judge doesn't 
understand the difference between going out and getting elected 
to office and reviewing policy made by elected officials.
    Ms. Kagan. And now we're back to agreeing, Senator Graham.
    Senator Graham. And we're going to end it there. I wish you 
well. You have handled yourself well. We have some differences. 
I think the hearings have been on the margins better, but not a 
lot better than they've been in the past.
    I wasn't trying to trick you. I think as an advocate in the 
Clinton Administration and other places you have tried to push 
the law in an ethical way in a particular way consistent with 
your philosophy and your political leanings, and I just want my 
colleagues to know that is OK with me. The thing that would not 
be OK with me is if I thought you were unethical and you did it 
in a way outside the process that we call ``the rule of law.'' 
So I wish you well, and I know your family is proud of you and 
I think you've acquitted yourself very well over the last 
several days.
    Ms. Kagan. Thank you, Senator.
    Senator Cardin. Thank you, Senator Graham. I don't think we 
need to do this, but let me just go over your 2009 confirmation 
hearings when you were asked about the partial-birth abortion 
decision. You repeatedly stated that you would respect Gonzalez 
v. Carhart in which the Court rejected a facial challenge to 
the Federal Partial-Birth Abortion Ban Act based on stare 
decisis. That's what you said in the last hearing. I assume 
that's your position today?
    Ms. Kagan. Absolutely, Senator Cardin, that Gonzalez is 
settled law entitled to all the precedent of settled law going 
forward.
    Senator Cardin. And I just really want to make a personal 
comment as I did on my opening statement. Many of us believe 
Roe v. Wade is a matter of privacy and a woman's right of 
choice and it's not really taking sides on abortion. Not 
whether you favor or oppose abortion, whether you favor a 
woman's right of choice and right of privacy and what is the 
appropriate role for the government to play in those types of 
decisions.
    With Senator Graham still here, I want to just go back to 
one of the points that Senator Graham raised on enemy 
combatants and their rights to certain proceedings. And I think 
I'm quoting Senator Graham correctly when he said, ``if we took 
the war on terror and made it a crime, we have a problem for 
our country.'' And I think that sort of misses the point. And, 
Solicitor General, I think the point that the administration 
was seeking is that there are certain rights in our criminal 
justice system that defendants are entitled to, they're 
different under military commissions for enemy combatants, but 
that we have the right, not the enemy combatant, to determine 
which venue we can bring about the best justice. If we think 
that an action by an enemy combatant was criminal, we want to 
use an Article 3 proceeding, and if we think we can get a 
better result, why would we want to take away that right? Why 
would we want to limit our ability to hold a terrorist 
accountable for their actions, whether it is as an enemy 
combatant in a military commission or whether it's in an 
Article 3 court under our criminal code?
    Was that the position that the administration was taking 
when you were Solicitor General, or you are still taking as 
Solicitor General?
    Ms. Kagan. Senator Cardin, I'm going to say the same thing 
to you that I hope I said to Senator Graham, which is, this is 
not a set of policy decisions that the Solicitor General's 
Office or that I personally had anything to do with. And I feel 
uncomfortable discussing that. I think that these are questions 
that are better addressed to the people who are making policy 
within the Justice Department on this issue.
    Senator Cardin. And I respect that. I just really wanted to 
clarify the choice. It's not a choice between giving enemy 
combatants certain additional rights. It's a question of where 
we believe we can hold a terrorist more accountable.
    Senator Graham. If I could, Senator.
    Senator Cardin. Certainly.
    Senator Graham. I guess that was a question for her, but 
I'll answer it and see if you disagree with my answer.
    I really have no problem using Article 3 Courts in the war 
on terror. In many cases they can be a better venue. I think 
military commissions can be a good venue to prosecute war 
crimes, but the higher--the third bucket, as we all talk about, 
are those enemy combatants that the Court has deemed to be an 
enemy combatant. But the evidence for whatever reason is not 
subject to criminal scrutiny whether it be a military 
commission trial or Article 3 trial, or the evidence may be 
such that you, under the rules of discovery of both 
proceedings, you couldn't divulge it without hurting national 
security, it's in those cases, the 48 that the Obama 
Administration has identified, that the Congress needs to weigh 
in with the executive branch to understand that the law of war 
detention is the only valid theory that you can hold someone in 
that third category.
    And when it comes to, quite frankly, the treatment of 
prisoners, it becomes about us, not them. I love the Geneva 
Convention as a military lawyer. It is not an individual right 
and I want my country to abide by it to the fullest extent 
possible and win this war within our values.
    The one thing I would say in conclusion is that when it 
comes to having your day in court as to whether or not you're 
an enemy combatant, I believe an independent judiciary should 
look over the military's shoulder and you have to prove to an 
independent judge that the military is right that you are in 
fact an enemy combatant. But I do not believe our laws should 
allow enemy prisoners to bring lawsuits against our own 
soldiers, medical malpractice cases against doctors, or sue 
prison guards because they don't like the quality of the food. 
That to me is not consistent with war and that's what I oppose.
    Senator Cardin. I thank you for that. We've had this 
discussion in our Committee and I think, Solicitor General 
Kagan, you are correct, these are issues that we're going to 
have to grapple with as the legislative branch of government, 
hopefully working closely with the executive branch. The bottom 
line is that for those who commit acts of terror against the 
United States we need to have an effective way to bring them to 
justice, whether it's within the military commission system or 
whether it's within our Article 3 courts. And we should be able 
to choose the best venue for holding those terrorists 
accountable.
    I know you had an exchange with Senator Feinstein on the 
interplay between the establishment and free exercise clause. 
And I want to talk a little bit more about that because I 
related to your opening statement when you talked about your 
grandparents coming to this country, for one reason, because of 
the religious freedom of this Nation which was so dominantly 
lacking in Europe. The same reason brought my grandparents to 
this country. So the freedom of religion is a critical part of 
this country's tradition.
    When we discussed the free exercise and establishment 
clause with Senator Feinstein--when you did, you said that 
there is some play in the joints for the government to act to 
make reasonable accommodations for religion consistent with 
both the free exercise and establishment clause. And then you 
mentioned the Lemon three-part test from 1971 which you 
correctly noted has not been overturned, but has not always 
been used by the Court either. I want to focus on the test used 
by Justice Kennedy in the Court opinion of Lee v. Weisman, in 
which he struck down as unconstitutional school-sponsored 
prayer at a public school graduation ceremony.
    My question to you is what special protection should 
students have under the establishment clause?
    Ms. Kagan. Well, what Senator Kennedy focused on, I think I 
said to Senator Feinstein that some members of the Court have 
used on certain occasions a coercion test. The question as to 
whether a particular governmental action coerces a person in 
his or her religious beliefs. And the Levy/Wassmann case is one 
that does use that coercion test in a way that provokes strong 
disagreement as well. The question about whether that 
graduation prayer did coerce students in a constitutionally 
meaningful manner. Senator Kennedy, a majority of the Court 
held that it did.
    As the Court's precedent has come down, it seems a highly 
fact-specific inquiry. Certainly the coercion test is used most 
often when it comes to children. And the Court--you know, the 
Court's cases essentially see a difference between coercion of 
adults thinking that adults can kind of stand up for themselves 
and coercion of children where there's a greater fear of the 
government's impact--coercive impact. And I think that Levy/
Wassmann reflects that.
    But it is a contentious area in the law. With some people I 
think that that case is a good example of the way in which 
people can look at the same kind of action and some see 
coercion and some not.
    Senator Cardin. Thank you very much for that reply. It's 
very helpful. With that I'm going to recognize Senator Cornyn 
for his inquiry.
    Senator Cornyn. Thank you, Mr. Chairman.
    General Kagan, let me start off with just a little 
housekeeping before we get into the main body of what I want to 
talk to you about. My experience, and I would be interested if 
your experience is the same, is that sometimes people who are 
not members of the legal profession, when they hear lawyers 
talk, or maybe even judges when they disagree in the context of 
written opinions, majority and dissenting opinions, the like, 
sometimes they read into that talk a sort of personal animosity 
or something more than just a disagreement over what the law is 
or is not. Have you had a similar experience or observation in 
your career?
    Ms. Kagan. Well, Senator Cornyn, I do think that sometimes 
people can take a look at opinions and they're very strongly 
worded and think, my gosh, these people must just hate each 
other. And then it turns out that not at all, there are good 
faith differences on the law, but the same people who are sort 
of taking swipes at each other in opinions see each other as 
people who are operating in complete good faith and get along 
with each other in the next case or the case before, and 
certainly in their lives.
    Senator Cornyn. Well, you made the point better than I did. 
And it's come to my attention--actually there was something 
published in the newspaper today that suggested that those of 
us who have tried to draw this line between activist judges who 
don't feel constrained by a written Constitution and laws or 
who feel like they have more liberty to basically make things 
up, this is my characterization, and judges who feel bound to a 
traditional view--I spoke to this in my opening statement--
there were some folks who--or actually an op-ed that was 
published today that suggested that those of us who talked 
about Justice Marshall and talked about his judicial philosophy 
were somehow disparaging Justice Marshall.
    Did you read any disrespect in any of the comments that any 
of us have made about Justice Marshall or did you understand it 
to be a criticism or disagreement with his judicial philosophy?
    Ms. Kagan. Senator Cornyn, I didn't see the op-ed, I've 
been trying very hard not to read the papers.
    Senator Cornyn. That's smart.
    Ms. Kagan. Senator Cornyn, I take everything that has been 
said here from all the way around the bench as people operating 
in good faith. And certainly I've gotten nothing but fairness 
and courteousness from everybody, from every member of the 
committee. I take no offense on behalf of myself or on behalf 
of Justice Marshall or on behalf of anybody else at anything 
that's been said here.
    Senator Cornyn. Thank you.
    I want to ask you a little bit more--we've talked a lot 
about constitutional interpretation and I want to read a 
statement to you. And this is not a trick question. So if you 
want me to read it again or go over it more slowly I will. And 
I want to get your thoughts on this statement of constitutional 
interpretation. And it starts this way: ``Original 
understandings are an important source of constitutional 
meaning, but so too are other sources that judges regularly 
invoke. The purpose and structure of the Constitution, the 
lessons of precedent and historical experience, the practical 
consequences of legal rules, and the evolving norms and 
traditions of our society.'' Do you generally agree with that 
statement, or is there any part of it that you disagree with?
    Ms. Kagan. You know, I think I would--I am trying to 
think--I mean, I think that what I've said is that you look to 
text, you look to structure, you look to history, very much 
including and very especially the original understandings, and 
you look to precedents. And in one or another of cases, one of 
those may be more important than others of them. In some cases 
you might look to all of them. And that's a kind of pragmatic 
approach, not an approach that takes a sort of grand, 
overarching philosophical view as to, you know, it's just one 
thing and it's got to be that one thing in every case. And 
that's the way I would approach the----
    Senator Cornyn. And that's consistent with what you've said 
as I've heard you testify yesterday and today. And really the 
part of it that I was interested in was the last phrase which 
talked about evolving norms and traditions of our society. What 
role do you think a judge's opinion of the evolving norms and 
traditions of our society have in interpreting the written 
Constitution?
    Ms. Kagan. Well, I think that traditions are most often 
looked to in considering the liberty clause of the Fourteenth 
Amendment. I think every member of the Court think that the 
liberty clause of the Fourteenth Amendment applies to more than 
physical restraints and I think almost every member thinks that 
it gives them substantive protection and not just procedural 
protections.
    And then the question becomes, what substantive protections 
does it provide? And I think that the best statement of the 
approach that the Court has used is actually Chief Justice 
Rehnquist's statement in the Glucksberg case. Because he says 
he basically agrees with both of those things that the Due 
Process Clause provides substantive protection and means more 
than restraint from physical restraint. But then the question 
is, how do you define that and do you appropriately limit that? 
Because it's for sure the case that the Courts should not use 
that clause to appropriate decisions that best belong to the 
American people.
    Senator Cornyn. Let me ask you another follow-up question. 
The author of the statement that I read is Goodman Liu, a 
professor at the University of California at Berkeley and a 
pending judicial nominee. He goes on to conclude, based on that 
statement of what the appropriate role of the interpretation of 
the Constitution is, he goes on--or he has concluded that the 
Fourteenth Amendment requires the government to provide 
citizens with certain social and economic rights including a 
high quality education, expanded health insurance, child care, 
transportation subsidies, job training, and a robust earned 
income tax credit.
    He also believes, or has written, that the Fourteenth 
Amendment guarantees a right to same-sex marriage. He says that 
``evolving norms can change the ambit of the Second Amendment's 
protection as interpreted by the Court.'' He's also opined that 
the Fourteenth Amendment requires the nationalization of 
education by prohibiting the local funding structure that 
states use to support their education systems.
    In applying this interpretative standard, would you--well, 
I'm not going to ask you whether you agree with that, because 
that might ask you to decide a case that would come before the 
Court; correct?
    Ms. Kagan. Well----
    Senator Cornyn. I was going to ask whether you agree or 
disagree with some of those stated opinions about what the 
Fourteenth Amendment means as Professor Liu has articulated?
    Ms. Kagan. You said a lot there. And I think that the view 
that I would have is consistent not with any particular article 
by Mr. Liu or otherwise. But it is consistent with the way that 
the Court has approached these questions and I particularly 
think of the Glucksberg case which does talk about that way the 
Court looks to traditions, looks to the way traditions can 
change over time, but makes sure--makes very clear that the 
Court should operate with real caution in this area, that the 
Court should understand that the liberty clause of the 
Fourteenth Amendment does not provide clear signposts, should 
make sure that the Court is not interfering inappropriately 
with the decisions that really ought to belong to the American 
people. And so should understand that the clause protects 
things, but should act in this area with appropriate caution 
and respect for democracy.
    Senator Cornyn. Well, I know you understand the gist of 
where I'm coming from. The concern is, of course, that if 
judges, particularly Federal judges, who serve a lifetime 
tenure, believe it's within their power to interpret the 
Constitution based on their subjective notion of what 
represents evolving norms and traditions then constitutional 
law very quickly becomes very separated from and untethered 
from anything you might call written law, or law representing 
the consent of the governed. That's the concern, and I'm sure 
you understand it.
    I'm not asking whether you agree, I'm just suggesting that 
that's my concern. And you seem to agree that judges ought to 
act very carefully. And I would suggest my own view is that it 
is not an appropriate role for a Federal judge to render 
subjective judgments about evolving norms and traditions. 
That's what Congress is here for, to act responsibly to the 
needs and desires and the wishes of the American people. And, 
of course, we stand for election and we can be replaced if the 
people disagree with us--but not judges.
    Let me change topics here quickly. And I have a series of 
questions here and I tried to frame these in a way that would 
permit a short answer and then I'd like to ask you then a 
larger question and I'll certainly allow you an opportunity to 
explain and to say anything you like in response.
    This has to do with the Solomon Amendment that there's been 
a lot of discussion about. I told you yesterday that I had 
concerns about your handling of military recruiters on campus 
when you were dean of the Harvard Law School. And let me just 
ask you some questions about that, just to sort of establish 
exactly what happened so everybody can get their brain around 
it.
    You argue that the military had good access to recruit 
Harvard Law students even during the periods before 2002 and 
from November 2004 through September 2005 when the military was 
barred from using the services of the Office of Career 
Services; correct?
    Ms. Kagan. I think that the military had good access during 
the periods where the Office of Career Services handled it and 
had good access when the veterans association handled the 
matter.
    Senator Cornyn. And when they were barred from the Office 
of Career Services, you believe that they still had good 
access? That's my question.
    Ms. Kagan. Yes. When the Office of Career Services did not 
provide the assistance, but instead the Veterans Association 
provided the assistance. And I think that the figures suggest 
that. That both before 2002 and in the single recruiting period 
in 2005 when the Veterans Association handled this, there were 
just no differences in the numbers. To the extent that there 
were any differences, they went up in 2005.
    Senator Cornyn. Of course, you can't tell, and we can't 
know, what they would have been if they still would have had 
access to the Office of Career Services. But basically you've 
gone on to answer my second question. During the time when they 
were barred from the Office of Career Services they had access 
to the Harvard Law School Veterans Association which was an 
alternate channel for military recruiting; correct?
    Ms. Kagan. That's correct. Way back before I became dean my 
predecessor put in place this accommodation, this way of trying 
to defend the law school's anti-discrimination policy but also 
enabling the military to recruit and that used the Veterans 
Association and they--the Veterans Association in all those 
years was just great in doing the things that the Office of 
Career Services otherwise would do.
    Senator Cornyn. And as the dean of the law school, you had 
the power to make an exception to the anti-discrimination 
policy if you chose to do so; correct?
    Ms. Kagan. Well, it was a faculty-approved anti-
discrimination policy but I do agree with you, Senator Cornyn, 
that I would have--you know, I would have gone to the--I do 
agree with you that I had substantial authority over that 
question.
    Senator Cornyn. That's all I'm asking.
    Conversely, the United States military didn't have any 
discretion to waive its policy because it was product of a 
Congressional act; do you agree with that?
    Ms. Kagan. I do. That the military could not sign the 
discrimination policy that Harvard had because of the statute 
that was passed by Congress. And that, of course, presented the 
issue that was involved is that the military could not sign the 
school's anti-discrimination policy, the school and I as dean 
felt a real imperative to enforce that policy, to defend that 
policy, but still to ensure that the military had very good 
access to all our students so that they could serve in the 
military. Because, you know, that was of critical importance.
    Senator Cornyn. And this is really the nub of it: the 
Solomon Amendment, which is what we're talking about, denies 
Federal funds to an educational institution that prohibits or 
in effect prevents military recruiting; isn't that generally 
what the Solomon Amendment does? It denies Federal funds to an 
institution that denies or prohibits or in effect prevents 
military recruiting on campus?
    Ms. Kagan. It places a condition on Federal funding and I 
forget the exact language that the Solomon Amendment--but it's 
about military recruiting on campus.
    Senator Cornyn. And I think my notes here, from your 
earlier testimony, were to the effect that you believed that 
this alternative through the veterans center and other 
locations on campus provided an ``equally effective 
substitute;'' is that correct?
    Ms. Kagan. This policy, I think, had worked well in the 
period before I became dean up until 2002. The Department of 
Defense had found this policy fully acceptable and it was my 
understanding that the Department of Defense and--that that was 
true, that their view that the policy enabled them good access. 
It was right, the policy did enable them good access.
    Senator Cornyn. But your understanding was that, at a 
certain point in time, if Harvard Law School continued with 
this policy of denying them access to the Office of Career 
Services it would be denied Federal funds?
    Ms. Kagan. Well, that happened before I became dean. So 
that happened the year before. In 2002 the Department of 
Defense said that it had changed its mind that for many years 
it had found the Harvard policy acceptable and had thought that 
it provided full access. In 2002 the Department of Defense came 
to the school and said that it in fact wanted the assistance of 
the Office of Career Services.
    Senator Cornyn. And this is my--this is my final point on 
this. If, as you say, this policy of Harvard Law School in 
barring the military recruiters from the Office of Career 
Services had no impact on military recruiting at Harvard Law 
School, it strikes me that the sole result and impact was to 
stigmatize the United States military on the campus, a 
service--services that you say you honor. So, explain to me 
what impact the policy had other than to stigmatize the 
military?
    Ms. Kagan. Senator Cornyn, it certainly was not to 
stigmatize the military. Every time I talked about this policy 
and many times besides I talked about the honor I had for the 
military and how much the military meant to our country and how 
we all have the freedoms that we have because of the military.
    Senator Cornyn. I heard you say that and I will stipulate 
that is what you said all along. But if the policy had no 
impact on recruiting at Harvard Law School, what possible 
purpose could it serve other than to stigmatize the military? 
In effect, you provided a separate but equal means of providing 
access to students on the campus.
    Ms. Kagan. I think the purpose of the policy was something 
different. It was certainly not to stigmatize the military. The 
purpose of the policy was to express support for our students 
who were being discriminated against, for our gay and lesbian 
students who wanted to serve in the military. And the policy 
was meant to support them or to support with respect to other 
employers any other students who were being discriminated 
against and to say, you know, we support those students. And at 
the same time--at the same time to ensure that our students who 
wanted to go into the military had excellent access to military 
recruiters and vice versa.
    Senator Cornyn. Mr. Chairman, I have 50 seconds remaining. 
I do have just a few more minutes of questions. And I would be 
happy to do it on another round after my time or if you would 
give me just a couple more minutes of flexibility I would be 
glad to finish.
    Senator Leahy. In lieu of another round, and we are going 
to take a break when you finish. Do you have any problem with 
us--and saving another round?
    Ms. Kagan. I'm sorry?
    Senator Leahy. Do you have any problem--we're going to have 
a break when Senator Cornyn finishes, do you have any problems 
with going a couple more minutes and this way he'll----
    Ms. Kagan. No, that's good. That's fine.
    Senator Leahy.--forego another round.
    Ms. Kagan. That's great. That's great.
    Senator Cornyn. I'll be less than 5 minutes, if that's all 
right?
    Thank you.
    Let me change topics, Ms. Kagan. And this gets back to 
questions we've heard about the Commerce Clause. And, again, 
this is sort of the jurisdictional hook that Congress finds in 
legislating in areas that have provided, I think we would all 
agree, rather expansive Federal jurisdiction over much of our 
lives.
    And you mentioned yesterday the Lopez and Morrison cases 
and of course those were a couple of cases that were decided 
when Chief Justice Rehnquist was chief. By five to four the 
Court said that ``government actions that were defended as 
legitimate regulations of commerce must deal with commerce as 
opposed to noneconomic matters.'' I believe you said as much.
    Do you agree with the Court's decisions in Lopez and 
Morrison?
    Ms. Kagan. Well, Senator Cornyn, I've refrained from 
agreeing or disagreeing, but I do believe that Lopez and 
Morrison are settled law and entitled to the precedential 
weight that one gives to any decision.
    Senator Cornyn. Do you know or do you recall whether you've 
ever written or spoken expressing previously and having 
expressed an opinion one way or another about Lopez or 
Morrison?
    Ms. Kagan. You know, Senator Kyl asked me that question. I 
don't think that I've done any academic work on the subject. I 
don't know whether I've spoken about them in any of my many 
speeches or anything like that.
    Senator Cornyn. OK. Well, one document that was among the 
many documents that we got from the Clinton archives was a memo 
you sent to the Deputy Chief of Staff at the White House on 
March the 31st regarding the recently decided Supreme Court 
case of Seminole Tribe v. Florida where you noted the ``broad 
significance'' of the opinion. In that memo you said, ``the 
decision, especially when viewed together with the holding last 
year that Congress lacked authority to prohibit guns near 
schools, indicates a serious effort by a bare majority of the 
Court to reorient the balance of power between the Federal 
Government and the states. It's highly unlikely that this case 
will be the last one to pursue that states' rights agenda.''
    Now, this language in your memo is strikingly similar to 
the opening paragraph of a New York Times article entitled, 
``Lurching Toward States Rights'' that you attached to the memo 
I just referred to. The opening paragraph of the article reads: 
``A headstrong five Justice majority is driving the Supreme 
Court toward a revolutionary, indeed reactionary, 
interpretation of federalism, tilting the balance dangerously 
toward states' rights at the expense of Federal power.'' Did 
you agree then that the article--with that article that the 
Supreme Court's federalism jurisprudence was reactionary and 
dangerous?
    Ms. Kagan. You know, Senator Cornyn, I don't at all 
remember the article and I've not seen it. I have seen more 
recently that memo which I just sort of think of as the 
Seminole Tribe memo. It's a memo about the Seminole Tribe case.
    Senator Cornyn. Right.
    Ms. Kagan. And I think that I was--you know, what I did was 
I described that case. I guess I said in light of Lopez it does 
suggest that the Court is reorienting the Federal/state balance 
in this area which I think indeed happened in those year. I 
think that that was probably--if I caught that sentence that 
you wrote, I had referred to Lopez, but this was probably 
before Morrison. So I think that there were this set of changes 
that occurred in those years and that memo was about neither of 
those, it was about Seminole Tribe which dealt with Congress' 
ability to abrogate state sovereign immunity under the Commerce 
Clause.
    So that was a few years of--you know, important 
developments in the law relating to the Federal/state balance.
    Senator Cornyn. In fairness to you, what my question is, is 
about the article, not your--not what you wrote ?
    Ms. Kagan. And I've not seen that.
    Senator Cornyn. And the article refers to the Supreme 
Court's federalism jurisprudence reactionary and dangerous. Do 
you agree with that characterization or do you disagree?
    Ms. Kagan. Senator Cornyn, I have refrained from saying 
thumbs up, thumbs down on any cases.
    Senator Cornyn. I'm not asking you that. I'm asking you, do 
you agree with the characterization that the Supreme Court's 
federalism jurisprudence was reactionary and dangerous?
    Ms. Kagan. It actually sounds--I don't even know what it 
means to be reactionary and dangerous. But the Morrison case, 
the Lopez case, the Seminole Tribe case are settled law. And I 
have, you know, no--I'll say this, no plan, no purpose, no 
agenda, no anything to mess with them.
    [Laughter.]
    Senator Cornyn. That's a legal term, I think.
    Ms. Kagan. Mess with them.
    [Laughter.]
    Senator Cornyn. I have one last question. I'm sure that's 
welcome news.
    Can you name for me any economic activity that the Federal 
Government cannot regulate under the Commerce Clause?
    Ms. Kagan. I wouldn't try to, Senator Cornyn. The test that 
the current court is using is this test of economic verus non-
economic and that's the test that I would expect to use under 
settled precedent. And if there are cases in which indeed the 
claim is presented that economic activity should not fall 
within Congress' commerce power, those will be cases that I 
will decide in the appropriate way by reading the briefs and 
listening to the arguments and talking to my colleagues.
    Senator Cornyn. Thank you very much.
    Ms. Kagan. Thank you, Senator Cornyn.
    Senator Leahy. Mr. Cornyn, does that get you--thank you 
very much. Then we will take a recess subject to the call of 
the Chair.
    [Recess taken at 3:34 p.m.]
    Senator Leahy. OK. Good afternoon.
    A number in the press have asked about the schedule. Just 
so you understand we were having a discussion up here. We will 
finish the questions and we don't have all that much left. And 
then we, as far as the press knows, we will then go to the 
traditional closed session. And the press won't be able to be 
there. Nor will any, but one camera, and then that will be it 
for tonight.
    And the public witnesses, I talked with Senator Sessions, 
we will begin with those after the rest and repose time in the 
Senate for Senator Byrd tomorrow. You, of course, can sit with 
your feet up and watch that part.
    Ms. Kagan. I can't come back?
    [Laughter.]
    Senator Leahy. You know, if you're that much of a glutton 
for punishment, you're not qualified to be in the Supreme 
Court.
    [Laughter.]
    Senator Leahy. But you can throw kisses to the TV set for 
those who said nice things. You can throw stuff at the TV set 
for those who say bad things.
    Ms. Kagan. You know, I think I won't watch.
    [Laughter.]
    Senator Leahy. You know, that's probably not a bad idea.
    I'm sure your staff will--Ms. Davies will tell you----
    Ms. Kagan. Tell me everything I need to know.
    Senator Leahy. She'll tell you when the good news comes.
    With that, Senator Whitehouse.
    Senator Whitehouse. Thank you, Chairman.
    Ms. Kagan, I'd like to take up our previous discussion 
again, which I know you've had a number of folks in between. So 
where we had left off, I think we had agreed that it is 
inappropriate for a judge to bring a particular agenda to the 
Supreme Court, and I--just to recapitulate, we do agree on 
that?
    Ms. Kagan. Yes.
    Senator Whitehouse. Yes. So if a judge or judges had a 
particular agenda or motivation, say to serve the interests and 
reflect the values of a particular political party, that would 
be inappropriate?
    Ms. Kagan. That would be the worst possible thing.
    Senator Whitehouse. And since it would be inappropriate, 
the worst possible thing, is it likely that such a judge would 
disclose that agenda or motivation, would make it a part of a 
written opinion, would admit it?
    Ms. Kagan. Senator Whitehouse, as you asked the question, 
that seems unlikely.
    Senator Whitehouse. Doesn't it?
    Ms. Kagan. Yes.
    Senator Whitehouse. So if you had such a judge or judges on 
a court and they would not disclose such an agenda or 
motivation because it is so inappropriate, you would have to 
look for a pattern of decisions to determine whether such an 
agenda or motivation were being pursued, would you not?
    Ms. Kagan. Senator Whitehouse, I guess I don't want to make 
any comment about how one should--how one should discover a 
judge with an agenda.
    Senator Whitehouse. But certainly that would be the only 
way, since it would never be in the decision itself as a matter 
of the textual content of the decision, because that would be 
so inappropriate.
    Ms. Kagan. Senator Whitehouse, I think I can only say what 
I just said.
    Senator Whitehouse. Well, I wonder if there might be--we've 
discussed a few other things that might be similar telltales if 
judges were seeking to impose a particular point of view or to 
reflect a particular point of view. Those telltales, one might 
be a tendency to 5-4 decisions, which would be a logical clue, 
since a broader consensus of judges, as we discussed, would 
make it difficult to move more aggressively. If your intention 
is to move more aggressively, you're more likely to deliver a 
lot of 5-4 decisions. That would be another telltale that we 
discussed.
    Another telltale might be findings of fact by a Supreme 
Court that are essential to a particular decision, even though 
an appellate court is not supposed to make such findings of 
fact. Another telltale would be advancing a theory of precedent 
that allows judges to selectively undermine and topple 
precedent--again, selectively--by hotly contesting it. Are 
there any telltales that you can think of that would suggest 
the presence of a particular agenda or motivation on the part 
of judges beyond those?
    Ms. Kagan. Senator Whitehouse, I have to be honest with you 
and say that I'm more focused right now on what I would do as a 
justice if I'm fortunate enough to be confirmed, than any ways 
of discovering what any other judge might do that's 
inappropriate. As I suggested to you before, I assume the good 
faith of everybody on the court and I think that's the way I 
will approach the job and the institution.
    Senator Whitehouse. And in your position I think that's the 
correct answer and the right thing to both say and do. But for 
those of us who have been witness here to lengthy discussions 
about the importance of precedent and the danger of judicial 
activism and who have seen you challenged as to whether you'll 
be able to be a neutral and dispassionate judge, one without a 
motivating agenda, it is a matter of interest to take a look at 
what appear to be the clear telltales that would be left by 
judges with that motivation or agenda and see how often they 
actually appear in the recent behavior of the court, 
particularly the five Republican appointees who steered it so 
hard to the right.
    Of the telltales that we've talked about, a pattern of 
decisions going a certain way, a tendency toward 5-4 decisions, 
an improbably and unusual finding of fact by an appellate court 
in a major case, and an announced theory of precedent removal 
by hot contest by the judge, we seem to be batting, what is 
that, five for five. And I say that not to seek a response from 
you at this point, because I think you've given a complete and 
adequate response as a nominee to the court to say that it's 
not your intention going into that court to begin by trying to 
assess whether there are judges on that court who have 
motivations to pursue a particular ideology.
    But I think for those of us who have to protect and 
safeguard the institution, it's also important for us to look 
back and see how we did and what we can learn from other 
previous nomination hearings where we were given very, very 
straightforward assurances about the importance of precedent 
and how nothing but balls and strikes would be called, and how 
clearly we were going to be, you know, very careful, modest, 
precedent-respecting judges, and then we saw this: every 
available telltale that would ring if judges were pursuing a 
particular agenda or strategy, other than to say it right out 
in the decision itself, which we've agreed is something that no 
judge would do because it would be so inappropriate.
    I think you said the worst possible thing. Every other 
potential bell that we can think of is ringing, and so that's 
why I mention it, because I do think it is a matter of general 
concern, although I don't dispute your answer to my questions. 
I think you're in exactly the right place where you should be 
on that point, and I appreciate that.
    Ms. Kagan. Well, Senator Whitehouse, I think it's not a 
matter of being in the right place. I think I'm saying what I 
think, which is that I respect the court as a whole enormously 
as an individual, and each of the members on it. That respect 
has grown every day in the year that I've been Solicitor 
General.
    Senator Whitehouse. Well, I respect the court as an 
institution, too, and I think it's vitally important because it 
does not have the power of the purse or of executive 
administration because it stands on the confidence of the 
public, that when all these telltales are in place it is a 
cause for some concern, at least for some of us. So again, I 
appreciate the time we've had. I wish you well, and I thank you 
again for the candid and complete nature of the way in which 
you are responding to questions here today. I think the window 
onto Elena Kagan that America is getting in these hearings is 
one of a very bright, very good-humored, very well-intentioned, 
and very able future Supreme Court justice. So, I thank you.
    Ms. Kagan. Thank you.
    Senator Whitehouse. Mr. Chairman.
    Chairman Leahy. Thank you very much, Senator Whitehouse.
    Senator Coburn.
    Senator Coburn. Thank you.
    Well, here we go again. I was just wondering, yesterday you 
were asked a question about whether you wrote a letter of 
recommendation for Miguel Estrada and you said you did not 
because he didn't ask you to. Did anybody--either you or 
anybody on your behalf--ask him to write the letter of 
recommendation for you?
    Ms. Kagan. I don't know, Senator Coburn.
    Senator Coburn. Good question.
    Do you believe he should have been confirmed?
    Ms. Kagan. I said that he is a great lawyer and a great 
human being, and I think I was asked whether he----
    Senator Coburn. I'm asking you whether or not you believe 
he should have been confirmed.
    Ms. Kagan. I wasn't trying to avoid your question. I think 
he'd be a great judge. I think he----
    Senator Coburn. So your answer is yes?
    Ms. Kagan. Yes.
    Senator Coburn. And if you were sitting up here you would 
have voted for him, is that correct?
    Ms. Kagan. I would have.
    Senator Coburn. Thank you.
    Moving on----
    Ms. Kagan. I hope I would have, anyway. You know, who knows 
what it feels like to be one of you guys and to be subject to 
all the things that you guys are subject to.
    Senator Coburn. I want to give you a big secret.
    Ms. Kagan. He should have been.
    Senator Coburn. It's not all that much fun.
    [Laughter.]
    Senator Coburn. I have to reply to my colleague from Rhode 
Island. I gave a speech two or 3 weeks ago on the Senate floor, 
talking about hearings. We didn't always have hearings. They 
are a relatively new phenomena in the history of our country. 
You know, we hit two areas of very distinct testimony about 
Judge Sotomayor which has demonstrated she did not live up to 
in the two most recent cases of the Supreme Court.
    So the question really comes, is confidence in our country 
today. We have problems with confidence in our economy, 
confidence in our government, confidence in Congress. I was 
wondering, Judge Kagan, is it important to you that the Supreme 
Court is seen in a light of confidence by the American people? 
Not us, but by the American people?
    Ms. Kagan. Senator Coburn, it's an interesting question 
because, of course, you want everybody--you want every--you 
want the Nation's citizenry to have confidence in each 
institution of government. But on the other hand, I think it 
would be wrong for a court to decide an individual case by 
asking itself----
    Senator Coburn. I'm not--I'm not implying that. I'm not 
saying you make a decision based on whether you're going to 
have confidence. I'm saying, in general, is it important to 
you, if you are a justice, that the American people have 
confidence in the institution of the Supreme Court?
    Ms. Kagan. I think that the welfare of the country is 
certainly best served if the American people have confidence in 
the Supreme Court, as is true of the other branches of 
government as well.
    Senator Coburn. Right. Right.
    Do you have any empathy with those of us that feel there's 
a low confidence right now in the institutions of government?
    Ms. Kagan. Senator Coburn, I--I think it would be better 
for the country if people had greater confidence than they do 
in all of the institutions of government, and that's not to 
say--you know, it's hard to know how these things work out over 
time. But--but, you know, it's--the country is well served when 
people have confidence in the institutions that lead them.
    Senator Coburn. And would you agree with me that the glue 
that really binds us together is the glue that we, in fact, 
embrace the rule of law, that there's blind justice, and that's 
our goal? We're not perfect in it, but that's our goal at every 
point, at every opening, is that we can make that available as 
best we can at every opportunity. That's a glue that binds us 
together, is it not?
    Ms. Kagan. I believe that thoroughly. When I gave my 
opening statement I said that the blessing of liberty, which is 
the phrase that our Constitution uses, the ``blessings of 
liberty'' are rooted in the rule of law.
    Senator Coburn. Yes. Well, I wonder if you've ever thought 
as I have. I'm 12 or 13 years older than you, but one of the 
things that I contemplate----
    Ms. Kagan. Maybe not after this hearing.
    Senator Coburn. No, I'm sure I'm older.
    [Laughter.]
    Senator Coburn. Actually, you're doing quite well. Have you 
ever contemplated the idea of what your freedom was like 30 
years ago and what it is today?
    Ms. Kagan. How old was I 30 years ago?
    Senator Coburn. You were 20.
    Ms. Kagan. I'm not sure I have ever contemplated that exact 
question.
    Senator Coburn. Well, I want to tell you, a lot of 
Americans have, and I certainly have. There is a marked change 
in this country from when I was 20 to now that I'm 62. And one 
of the problems with confidence, and the reason I asked you the 
question, is a lot of Americans are losing confidence because 
they're losing freedom, they're losing liberty.
    You'll recall I asked you about the vegetable questions 
yesterday. That's on the front of a lot of people's mind. Not 
vegetables, health care. You knew where I was going. The very 
fact that the government is going to have the ability to take 
away, mandate what I must buy or must not buy, a very large 
loss of freedom.
    So my basic question comes back to you, is that important, 
the fact that confidence in all government institutions is at 
an all-time low in this country? And should we be concerned 
about it, and should we be trying to right the ship so that we 
restore that confidence?
    And I'm not talking of specific rulings, but you would 
agree that we ought to be trying to build that confidence and 
to reassure the American public that we actually get it, we 
understand the Constitution is the founding document. You've 
testified many times. I have some problems with some of what 
you've said, but that's the bedrock instrument under which we 
have. But with a perceived loss of liberty, confidence is 
declining.
    On top of that, as we discussed yesterday, the Commerce 
Clause and this very expansive view of it as held by the 
Supreme Court which is counter to what our founders wrote, 
there's nobody that--it started in 1937. It's counter to what 
our founders wrote, and as it has expanded, liberty has 
declined. We've seen that rapidly increase. And it's not just 
Republican or Democratic institutions--administrations that 
have overseen that, they've both been guilty.
    So I just wanted to--whether you'd ever contemplated that, 
because I think that can give you some insight into what 
America is concerned about. I don't think judges just go to the 
bench and look at the Constitution.
    I think they have to look at the fact that, how do we 
continue this wonderful and grand experiment, and that there 
are consequences to their actions, whether it be the 
consequences of the Senator from Rhode Island seeing a 
conspiracy, sinister, and people who think about and believe in 
the original intent believe in expanded freedom, not limiting 
freedom, and believe that what the founders had to say in the 
Federalist Papers and in interpreting the Constitution was of 
any import. So you've never contemplated any change in the 
freedom that you've experienced?
    Ms. Kagan. Senator, I guess I'll say this to what you said, 
which is that I believe that confidence in our institutions is 
terribly important. The confidence in the Supreme Court is 
terribly important. I do think that the job of a Supreme Court 
justice is to decide cases, and--and in deciding cases it's not 
to think about big questions like restoring American 
confidence, that that's more a question that belongs to the 
members of--of this body. I do think that the job of a Supreme 
Court justice is to listen very carefully to all arguments that 
are presented, and that means all arguments. That's what I've 
pledged to do, and that's what I will do if I'm----
    Senator Coburn. You said earlier, to Senator Klobuchar this 
morning, that people get to make fundamental decisions about 
this country. You know what? A large percentage of people in 
America today don't believe that. They don't believe they're 
getting to make decisions about this country. I mean, that is a 
serious problem, when 22 percent of the people in this country 
have confidence in Congress. That's just speaking about 
Congress. I haven't seen a poll on the Supreme Court. So the 
question--that's the ideal, is we do want the people to be able 
to make the decisions. The fact is, they're not today. There's 
a disconnect.
    And it's seen--that's why we see the unrest, the tension 
that's out there in the electorate, is that we're not paying 
attention. That's why I was so hard and insistent on original 
intent, because they're like me, they're non-lawyers. They read 
the Constitution and they see the words. They're not 
sophisticated. They didn't--most didn't go to Harvard. And they 
say, you know, here's the fact and here's the statement, and 
the fact doesn't match the statement.
    And I'm just saying, when it's a sliver dividing line one 
way or the other, if the Supreme Court isn't paying attention 
to that on an individual case when it can go either way, it 
ought to go for freedom, not more government, not bigger 
government, not an expanded Commerce Clause. It ought to go for 
individual freedom, individual liberty when it's--when it's on 
the narrow. I'm not talking about major cases that you can 
easily see plainly, because you're going to have a lot of cases 
that are going to be tough for you to decide. You would agree 
with that, correct? It's going to be difficult.
    Ms. Kagan. Senator Coburn, I think that there are difficult 
cases that come to the court, no question.
    Senator Coburn. The--the other thing that you said to 
Senator Kaufman this morning--you were quoting Holmes again on 
the Commerce Clause--is that ``the judges aren't principal 
players in that game.'' That was one of your quotes back to 
him. And I just have to relate to you again my concern, as I 
read the Constitution and I read what the founders wrote about 
the Commerce Clause.
    I mean, they even said we were going to try to expand it 
and we were going to--I mean, they actually quoted that we 
would try to abuse what they meant, and they said that's not 
what we meant, and yet we still have this tremendous expansion 
of the Federal Government, and with it a concomitant loss of 
individual freedom. And so I have to tell you, my hair has 
grayed a little bit the last 2 days because of your position, 
or lack of emphasis, on original intent. I think it's valuable.
    I have one other question in regard to the same thing. 
Senator Grassley quoted to you out of President Obama's book 
about property rights and you gave an appropriate, good answer. 
The question I would have to you is, one of the concerns that 
Americans have today, I talked about, I think, our rule of law 
is what binds us together. No matter where you come from, what 
your wealth status is, the fact is, in this country like no 
other, you have a better shot at getting in a court of law in a 
fair outcome than anywhere in the world.
    But some of the things we're doing, which the Supreme Court 
should weigh in on, and he talked about property rights, 
including abrogation of contract rights to bond holders in a 
government-managed takeover of an auto company, I mean, it's a 
total violation of contract law, that bond holders don't have a 
right. When they should be first, they're placed last.
    When we ignore the idea that the problem with illegal 
immigration isn't illegal immigration, it's the very fact that 
somebody is violating a law, and then with amnesty toward that 
it is seen as tearing apart the glue that holds us together. Or 
the proposed recommendation of cram-down on mortgages, where 
Congress would pass a bill that said mortgage contracts out, 
and we're going to tell you what your contract is. Do you see 
my concern on property rights in that regard, and also the fact 
that we're kind of abandoning contract law, as well as tort 
law? And this is Congress. I'm not talking about the court.
    Ms. Kagan. Senator Coburn, I think when you say it's 
Congress, I think that's right, that some of the things you 
just talked about are policy issues that are appropriately 
addressed, debated, argued about by Congress, that of course 
decisions get to the court in a different way. They get to the 
court in the form of individual cases and controversies. And 
the only way that a judge can legitimately approach and decide 
issues is through that forum, by looking at, you know, the 
actual circumstances of a case, the actual facts, the record, 
and trying to apply the--the law as best one can.
    So it might be that some of these bigger issues that take 
place in Congress about the appropriate direction of the 
country, you know, in some way inform or--or--or seen in 
individual cases or controversies, but that's the only way that 
the court can look at them, not as these big, abstract 
questions, but just----
    Senator Coburn. No, I'm not asking you to do that. I'm just 
asking--trying to get a feel for your appreciation of where we 
are today in this country. Some of my colleagues may disagree, 
but I'm traveling all over this country today and I see 
something I've never seen in my 62 years of life: an absolute 
fear that we're losing it, that our institutions are failing 
us, that we're ignoring the basic document that combines us and 
puts us together, and that with the abandonment of that we're 
liable to lose a whole lot more than just our short-term gains 
in income. It's a real problem and it's what--you know, the 
fact is, is today our kids' future has been mortgaged and the 
confidence that we can get out of that is waning, and that we 
need to build that back up. So, you know, it's just a plea for 
you to look at as you become a justice, if you do, that it's 
not just a--the Constitution, it's what was the Constitution 
intended to be? It's my appeal for you to go back and look at 
the Federalist Papers and what are--I thought they had 
tremendous wisdom. They weren't--they didn't get it all right, 
but they sure got a lot of it right. The proof is in the 
pudding of where we are today.
    Let me move on.
    Ms. Kagan. Senator Coburn, I--I said in my opening 
statement that I was only going to make a single pledge, and 
that was the pledge that I made in my opening statement. But 
I'll make you another: I'll reread the Federalist Papers.
    Senator Coburn. Thank you. I'd appreciate that.
    Ms. Kagan. It's a great document.
    Senator Coburn. America will appreciate that.
    Ms. Kagan. It's a great document.
    Senator Coburn. I want to go to the Second Amendment for a 
minute, if I can. One of the things that we found in some of 
the papers as we looked, and you know we looked at thousands of 
them and there's no way you're going to be able to recall all 
of them, although I'm sure you've looked at some of them. You 
chose a phrase, when talking about the Second Amendment, that 
you were not sympathetic when discussing someone's claim that 
DC's handgun ban violated their fundamental preexisting right 
to bear arms. And I have a very specific question for you: do 
you believe it is a fundamental preexisting right to have an 
arm to defend yourself?
    Ms. Kagan. Senator Coburn, I very much appreciate how 
deeply important the right to bear arms is to millions and 
millions of Americans, and I accept Heller, which made clear 
that the Second Amendment conferred that right upon individuals 
and not simply collectively.
    Senator Coburn. I'm not asking you about your judicial--I'm 
asking you, Elena Kagan, do you personally believe there is a 
fundamental right in this area? Do you agree with Blackstone 
that the natural right of resistance and self-preservation, the 
right of having and using arms for self-preservation and 
defense? He didn't say that was a constitutional right, he said 
that's a natural right. And what I'm asking you is, do you 
agree with that?
    Ms. Kagan. Senator Coburn, to be honest with you, I don't 
have a view of what are natural rights, independent of the 
Constitution. And my job as a justice will be to enforce and 
defend the Constitution and other laws of the United States.
    Senator Coburn. So you wouldn't embrace what the 
Declaration of Independence says, that we have ``certain God-
given inalienable rights'' that aren't given in the 
Constitution, that are ours and ours alone, and that the 
government doesn't give those to us?
    Ms. Kagan. Senator Coburn, I believe that the Constitution 
is an extraordinary document. And I'm not saying I do not 
believe that there are rights preexisting the Constitution and 
the laws, but my job as a justice is to enforce the 
Constitution and the laws.
    Senator Coburn. Well, I understand that. I'm not talking 
about as a justice, I'm talking about Elena Kagan. What do you 
believe? Are there inalienable rights for us? Do you believe 
that?
    Ms. Kagan. Senator Coburn, I think that the question of 
what I believe as to what people's rights are outside the 
Constitution and the laws, that you should not want me to act 
in any way on the basis of such a belief, if I had one or----
    Senator Coburn. I would want you to always act on the basis 
of the belief of what our Declaration of Independence says.
    Ms. Kagan. I think you should want me to act on the basis 
of law and that is what I have upheld to do, if I'm fortunate 
enough to be concerned--to be confirmed, is to act on the basis 
of law, which is the Constitutions and the statutes of the 
United States.
    Senator Coburn. Going back to the Second Amendment, what we 
know with the two most recent cases is that they didn't 
necessarily take away the precedent of Miller, does it?
    Ms. Kagan. I'm sorry?
    Senator Coburn. They don't necessarily take away the 
precedent of Miller.
    Ms. Kagan. I've not read McDonald yet because of these 
hearings, but if I understand Heller correctly, Heller--Heller 
did not find it necessary to reverse Miller. Heller 
distinguished Miller as involving a different kind of weapon.
    Senator Coburn. So when you say----
    Chairman Leahy. The Senator's time has expired.
    Senator Coburn. We are going to have another round?
    Chairman Leahy. Those who have asked for it. I----
    Senator Coburn. I've got several more questions, Mr. 
Chairman.
    Chairman Leahy. Then we'll give--well, with all due respect 
to the Senator, if they're questions, fine. If they're 10-, 15-
minute speeches, your personal beliefs, which I know you hold 
strongly, are fine, but I'd prefer questions. I would be 
willing to give you another 5 minutes when your turn comes 
back.
    Senator Klobuchar.
    Senator Klobuchar. All right. Thank you very much, Mr. 
Chairman.
    Hello, again. I wanted to read you a quote. I was thinking 
as I was listening to Senator Graham ask you about your role 
when you worked for the Clinton administration and you were 
answering about how your role was a specific one, and that it 
was different than you trumpeting your own personal beliefs.
    And this was a quote from another nominee at another one of 
these hearings, and this person said, ``My view in preparing 
all the memoranda that people have been talking about was as a 
staff lawyer. I was promoting the views of the people for whom 
I worked.''
    In some instances those were consistent with my personal 
views, in other instances they may not be. In most instances, 
no one cared terribly much what my personal views were, they 
were to advance the views of the administration for which I 
worked. Do you think that's a fair characterization of some of 
the work that you were doing when you were working for others 
in the administration?
    Ms. Kagan. I think that is a fair characterization, Senator 
Klobuchar. I think that most White House assistants would--
would sense the truth of that statement.
    Senator Klobuchar. And that was actually John Roberts, at 
his confirmation hearing, in response to some of the questions 
from my colleagues. I was really interested in listening to 
Senator Coburn--I wasn't going to focus on this as much--when 
he was talking about the concept of freedom, which is integral 
to our country and to our Constitution, and he was actually 
asking you just now, back 30 years ago, if you thought that we 
were more free. And I think it's a very hard question to answer 
and not one that necessarily is one that you would expect in 
this hearing.
    But I was thinking back, and 30 years ago was 1980. In 
1980, I just checked, the top songs were Blondie, ``Call Me'', 
Queen, ``Another One Bites the Dust.'' I remember, I was just 
starting to wear little bow ties and things like that. Then I 
was thinking about, were we really more free if you were a 
woman in 1980? Do you know, Solicitor General, how many women 
were on the U.S. Supreme Court in 1980?
    Ms. Kagan. I guess, zero.
    Senator Klobuchar. That would be correct. There were no 
women on the Supreme Court. Do you know how many women were 
sitting up here 30 years ago in 1980?
    Ms. Kagan. It was very striking when Senator Feinstein said 
that she was one of two women. I thought, how amazing. So, how 
many?
    Senator Klobuchar. There were no women on the Judiciary 
Committee. In fact, no women were on the Judiciary Committee 
until after the Anita Hill hearings in 1991.
    Do you know how many women were in the U.S. Senate in 1980, 
30 years ago?
    Ms. Kagan. I'm stumped again.
    Senator Klobuchar. No women were in the U.S. Senate. There 
had been women in the Senate before, and then in 1981 Senator 
Kassebaum joined the Senate.
    So as I think about that question, about if people were 
more free in 1980, I think it's all in the eyes of the 
beholder. Certainly people had the potential freedom to get 
these jobs, but there were things that were impeding them from 
advancing to where I think that they wanted to go.
    And you actually gave a speech in 2005 on ``Women in the 
Legal Profession: A Status Report.'' And as I mentioned in my 
opening remarks, it's clear that we have come a long way. And 
as you noted, when Harvard's president--in this speech you 
noted that Harvard's president was asked about the law school 
and how it was faring during World War II when so many of the 
people who would have been in the law school were off to war, 
and his response was that it wasn't as bad as he expected. He 
said, ``We have 75 students and we haven't had to admit any 
women.''
    But your speech also made some very serious points about 
the ways there are still gender disparities in the legal 
professions. We all know that more and more women are 
graduating from law school and from our professional schools, 
but women lawyers--to quote you, ``Women lawyers are not 
assuming leadership roles in proportion to their numbers.''
    And as you note, that is ``troubling not only for the women 
whose aspirations are being frustrated, but also for the 
society that is losing their talents.'' As dean, you clearly 
recognized the problems and disparities faced by women entering 
the legal profession.
    What did you do about it, and what do you think we should 
be doing about it?
    Ms. Kagan. Well, there still are these disparities. And 
it's interesting, because right now Harvard--and all schools--
are about 50 percent women. Sometimes it's 48 and sometimes 
it's 52. Some schools are actually a good deal more, 55.
    Senator Klobuchar. And we know that over 50 percent of the 
people in this country are women, but there's only 17 out of 
107 Senators that are women. Go on.
    Ms. Kagan. Yes. And I do think that if you look all over 
the legal profession, not just in--in these governmental 
institutions but in--certainly in law firms, women don't have 
the kind of--there's just not the kind of diversity that I 
think anybody would want. And--and I think people are trying 
hard to make that diversity happen. I don't think it's a matter 
of bad faith in this regard, but I do think that there are 
structural obstacles, that there are ways in which it's hard to 
balance work and family. It's still harder for a woman than it 
is for a man, and that that often comes into play in the legal 
profession, as it does elsewhere.
    And if you--if you look at these opportunities for women, 
you know, I think probably the best thing that we could do as a 
society--but this isn't the court's role, this really is 
Congress' role--is to try to enable women and men, but I think 
that they especially strike women, to--to manage those 
balances, the--the desire to have a fulfilling professional 
life, and also the desire to have a wonderful family life, to 
manage that balance better and to sort of create the structures 
that enable them to do so.
    And, you know, the work that I did in the Clinton White 
House, you're quite right, it had--it has nothing to do with 
what I would do as a judge, and it also didn't have much to do 
with my particular beliefs, except that I did believe in--I 
mean, I was proud to serve in the administration of President 
Clinton. And one of the things that I did do there was to work 
on some of these issues, to work on issues relating to child 
care, for example, and to--to try to help women and men with 
these very difficult issues and how to have wonderful 
professional lives, and also have wonderful family lives.
    Senator Klobuchar. So do you think women are more free, 
just to end this discussion that was sparked by Senator 
Coburn's going back to 1980? Do you think women are more free 
to pursue some of their career goals now than they were in 
1980, given the numbers that we see?
    Ms. Kagan. I think that there's no question that women have 
greater opportunities now, although they could be made greater 
still.
    Senator Klobuchar. Thank you.
    One last point I just wanted to make. There still continues 
to be a lot of focus on the recruiting--military recruiting. I 
think you made very clear that at no time were the recruiters 
banned from the Harvard campus, and that in fact I think you've 
mentioned--I don't want to put words in your mouth--but the 
military recruiting, the numbers went up, more people were 
recruited during the time you were there. Is that right?
    Ms. Kagan. You know, I don't want to make too much of this.
    Senator Klobuchar. Yes.
    Ms. Kagan. The numbers were basically stable. There was 
certainly no drop in the--in the particular year in question. 
There was actually a slight uptick, but it seems to me that if 
you look over the whole history, both before I was dean and 
after I was dean, what it suggests is that the difference 
between military recruitment being done under the kind of 
auspices of the Office of Career Services and being done under 
the auspices of the veterans organization just didn't make a 
difference.
    Senator Klobuchar. OK. And I just--you know, numbers are 
always interesting and important, but for me sometimes what 
people say that would work with someone like you is important, 
and I know that the Chairman put this letter in from a student, 
Robert Marrow, who had served in Iraq.
    In his own words, he went from fighting in the streets of 
Fallujah to studying in the hallowed halls of Harvard Law 
School, and he talked about--in this--in this op-ed that was in 
the Washington Post, he talked about how students pretty much 
treated him the same as other students, except for a few silly 
questions, and how most of the faculty members were fine but 
didn't really acknowledge what had happened.
    But you had acknowledged his service, and he ended by 
saying this. He said, ``She was decidedly against don't ask/
don't tell, but that never affected her treatment of those who 
had served.'' He says, ``I am confident she is looking forward 
to the upcoming confirmation hearings as an opportunity to 
engage in some intellectual sparring with Members of 
Congress.'' He says, ``She treated the veterans at Harvard like 
VIPs and she was a fervent advocate of our veterans' 
association.''
    And then he says, when he talks about the sparring with 
Members of Congress--and I'll end with this--he says, ``I would 
especially warn the Members of Congress to do their homework, 
as she has a reputation for annihilating the unprepared.'' I 
think that's a good ending. You've done a wonderful job. Thank 
you very much.
    Ms. Kagan. Thank you, Senator Klobuchar.
    Chairman Leahy. Thank you very much.
    Senator Sessions, did you want more time? I know Senator 
Coburn said he wants more time.
    Senator Sessions. Yes.
    Chairman Leahy. Oh, I'm sorry. Senator Franken has. We'll 
go to Senator Franken. Let's just see how many more want more 
time. Senator Coburn has already said he wants another 5 
minutes. You want how many? How much more time? You want more 
time. Senator Hatch. He may. Senator Grassley, you want another 
5 minutes. Senator Cornyn. OK. Senator Franken, let's go on 
because we have the secure room available at 5 to do the closed 
session.
    Senator Franken.
    Senator Franken. Thank you, Mr. Chairman, General Kagan.
    I'm extremely concerned about the proposed merger between 
Comcast and NBC-Universal. Media consolation matters in a 
really fundamental way. I watch television for entertainment, 
but I also get a lot of my information there too. So when the 
same company owns the programming and runs the pipes that bring 
us the programming, I think we have a problem. I'm interested 
in the ways that the Supreme Court affects the information that 
you and I get when we turn on the TV or read the newspaper.
    Sixty years ago, in United States v. Associated Press, the 
Supreme Court found that the First Amendment supported 
aggressive antitrust enforcement. Justice Black wrote, ``The 
First Amendment, far from providing an argument against 
application of the Sherman Act, here provides powerful reasons 
to the contrary.'' He then continues, ``Freedom to publish is 
guaranteed by the Constitution, but freedom to combine to keep 
others from publishing is not.''
    When I read Black's opinion, I think immediately of Comcast 
and NBC-Universal. Comcast is already extremely powerful. It's 
the nation's largest cable operator and also the largest home 
internet service provider. If it owned both the pipes and the 
programming, it would have the ultimate ability to keep others 
from publishing. It could just choose to favor its own 
programming over programming that other companies produce and 
withhold its own programming or charge more for it and drive up 
Minnesotans' cable bills.
    To make matters worse to me, if Comcast and NBC merge, I 
worry that AT&T and Verizon are going to decide that, well, 
they have to buy ABC or CBS to compete, and that will mean 
there will be less independent programming, fewer voices, and a 
smaller marketplace of ideas. That's a First Amendment problem, 
it's also an antitrust problem. So General Kagan, here's my 
first question: do you agree with Justice Black that freedom to 
publish is guaranteed by the Constitution but freedom to 
combine to keep others from publishing is not?
    Ms. Kagan. Well, Senator Franken, I--I--first off, let me 
say that I think that that Comcast merger is under review by 
the Department of Justice at the current moment, so I want to 
steer well clear of that.
    Senator Franken. I'm not asking you about it specifically.
    Ms. Kagan. Yes. I mean, the--the--you know, the First 
Amendment does not provide a general defense, I think, to the 
antitrust laws. I'm not saying that in any particular cases 
First Amendment principles might not be relevant, but in 
general. The antitrust laws are the antitrust laws and they 
apply to all companies.
    Senator Franken. OK. Let me talk about online.
    Ms. Kagan. Talk about?
    Senator Franken. Speech that's online, over the internet 
and over the airways, or over cable. Many of the pipes that 
carry speech are in the hands of corporations, whether those 
corporations are cable companies or internet service providers.
    And I brought this up with then-Judge Sotomayor at last 
year's hearing. I asked her about net neutrality, and she 
agreed that there is a First Amendment interest in ensuring 
that the internet stays open and accessible, protected from 
corporate interference. I'd like to ask you a variation on that 
question, now applying it to the merger context. Let me start 
with a pretty simple question: do you believe that the First 
Amendment helps to promote diverse public voices and opinions?
    Ms. Kagan. One of the purposes of the First Amendment is to 
ensure a public sphere in which all kinds of different opinions 
and views and thoughts can be expressed, and we can learn from 
all of them.
    Senator Franken. And would you agree that the First 
Amendment governs actions or behavior by the federal 
government?
    Ms. Kagan. Of course. The First Amendment governs actions 
and behaviors by the federal government, as well as by the 
states.
    Senator Franken. OK. So the First Amendment helps to 
promote diverse speech and it governs governmental actions. In 
a merger case, the government is the one making the decision to 
allow two companies to merge. Given all of this, do you believe 
that the First Amendment could inform how the government looks 
at media antitrust cases?
    Ms. Kagan. Senator Franken, I--I guess you could be 
thinking about that as a kind of policy matter, as to whether 
the authorities that are responsible for approving mergers and 
such ought to take into account so-called, you know, First 
Amendment values, not the--and--and I think I would defer to 
people who know a lot more about antitrust policy than I do on 
that. So, I guess that's what I'd say.
    Senator Franken. OK. Thank you. One last thing.
    A lot of people have been talking about judicial activism. 
I know that I certainly have, and I'm glad my friend Senator 
Graham brought this up. He said, can you find a judicial 
activist somewhere? And I can understand why you didn't want to 
find one. I want to try to help. I always want to help my 
friend, Senator Graham. You said there are three things that 
judges hold to when they're not activists.
    You said this: they respect precedent, they make narrow 
decisions, and they defer to the political branches, in other 
words, the legislature. There are a lot of recent cases that 
we've been talking about that instinctively strike me, and a 
lot of other people, as falling outside of these three 
guidelines. I think that in these cases the Supreme Court was 
legislating from the bench, which is being activist.
    In Circuit City, which I discussed at length during my 
first round, the Supreme Court explicitly ignored--explicitly 
ignored--Congress, gave absolutely no deference to Congress' 
intent. This is on the specific provision protecting all 
workers from mandatory arbitration. The Court read that 
provision in such a strained manner that, even though the 
legislative history indicated a quite different intent, that 
provision would exclude almost all workers. In Gross, and in 
Rent-A-Center, and in Citizens United, the Court answered 
questions that it wasn't asked. They didn't rule narrowly. That 
was your second.
    In a Leegin case, the Court struck down a century-old 
precedent--that's your third--that protected small business 
owners against vertical pricing fixing. So those are all three 
of your conditions: ignoring Congress, the intent; not ruling 
narrowly, and overturning precedent. So I think that the judges 
who decided these cases are judicial activists. Under the 
guidelines that you laid out to my friend Senator Graham, and 
that he seemed to like.
    Now, let me distinguished this from Justice Thurgood 
Marshall. Justice Thurgood Marshall argued Brown v. Board of 
Education, as you and Senator Graham discussed, correct?
    Ms. Kagan. Yes, he did.
    Senator Franken. And if I lumped Brown v. Board of 
Education in with the list of cases I just mentioned, most 
people in the room would balk, don't you think?
    Ms. Kagan. Well, Brown v. Board of Education is the kind of 
iconic case that doesn't belong on any list.
    Senator Franken. Well, there's a reason that--I mean, it is 
an exemplar of overturning a precedent that needed to be 
overturned, is that correct, would you say?
    Ms. Kagan. Yes, sir, Mr. Franken. Yes.
    Senator Franken. And that's because there is a place for 
judicial review in our legal system. I'm trying to make the 
distinction between judicial activism and not judicial 
activism. There are certain situations where the Supreme Court 
really should subject the law to heightened scrutiny.
    This is what I think Justice Marshall was talking about 
when he said that the court should show ``special solicitude 
for the despised and disadvantaged, the people who went 
unprotected by every other organ of government and who had no 
other champion.'' Now, in the opening statements, you were 
criticized for admiring Justice Marshall for believing this, 
but I actually think that this belief, that Justice Marshall's 
belief, is good, constitutional law. Are you familiar with 
Carolene Products, the Carolene Products case of 1938?
    Ms. Kagan. Yes, sir.
    Senator Franken. Are you familiar with Footnote 4 of that 
decision?
    [Laughter.]
    Ms. Kagan. Yes, sir.
    Senator Franken. And you're familiar with that because the 
footnote is really important, isn't it? It's often taught in 
constitutional law classes, whether they be in the first year 
or the second year or the third year, right?
    Ms. Kagan. It is.
    Senator Franken. Can you tell me what that footnote says 
and why it's important?
    Ms. Kagan. Senator Franken, it seems as though you have it 
in front of you and you're going to do a better job of it than 
I am at this moment.
    Senator Franken. You're a mind reader. Footnote 4 basically 
says that when courts interpret the Constitution and try to 
figure out whether a law complies with the Constitution, the 
court should give special scrutiny to laws that violate a 
specific part of the Constitution, that restrict the political 
process, and that affect ``religious, national, racial, and 
discrete and insular minorities'' who have a really hard time 
getting help through the normal political process. Now, to me, 
``discrete and insular minorities'' sounds a lot like the 
``despised and disadvantaged'' that ``go unprotected'' and 
``have no other champion.'' Is it safe to say that Justice 
Marshall's belief is consistent with Carolene Products?
    Ms. Kagan. Well, there's no doubt, Senator Franken, that 
racial classifications are subject to very high scrutiny under 
the Equal Protection Clause, and have been so for a long time. 
And the Equal Protection Clause exists to ensure against 
discrimination on disfavored bases, very much included, and the 
archetypal example is race, and that it is not only 
appropriate, but obligatory on the courts to enforce that 
prohibition on discrimination on the basis of race.
    Senator Franken. So Justice Marshall's belief that was 
criticized in the opening statements is really very consistent 
with established constitutional law, isn't it?
    Ms. Kagan. Well, Senator Franken, I will say that when I 
wrote those words I was not speaking of Footnote 4 and Carolene 
Products. I was speaking instead of--of what I've talked about 
several times at this hearing, which is Justice Marshall's deep 
belief in ensuring a level playing field for all Americans and 
ensuring that each and every American, regardless of wealth or 
power or privilege, that each and every American gets fairly 
heard before the court. And--and when I--when I wrote that 
tribute to Justice Marshall and wrote those words, that was 
very much what I had in mind.
    Senator Franken. So I'd like to leave you with this 
thought, General Kagan. Justice Thurgood Marshall is one of the 
greatest lawyers and jurists in American history. This is the 
man who won Brown v. Board of Education, who helped end 
segregation in our Nation's schools and opened the doors to 
black Americans. This is the man who proved that separate but 
equal was inherently unequal. Not only that, but he served with 
distinction as Solicitor General, as a judge on the Second 
Circuit, and as the first African-American Supreme Court 
justice. This is a giant of the American legal system.
    And I think what I really want to say is that Justice 
Marshall wasn't some activist radical, rather, his views were 
very much in the mainstream and in line with constitutional 
jurisprudence since 1938, since Carolene, and before that. And 
I just think that we need to be aware of that and to remember 
that.
    Ms. Kagan. Senator Franken, I'll just say what I've said on 
many occasions in the past, which is that Justice Marshall is a 
hero of American law and a hero of mine.
    Senator Franken. And of mine. Thank you. Thank you, General 
Kagan.
    Thank you, Mr. Chairman.
    Senator Franken. I'm going to yield to Senator Sessions, 
but I've already been told that Senator Klobuchar wanted to 
correct one----
    Senator Klobuchar. Yes. We have learned from many emails to 
our office that in fact, in 1980, Solicitor General Kagan, 
Nancy Kassebaum was already serving in the Senate, so there was 
in fact one woman Senator. There were no women on the Judiciary 
Committee, and I was correct: ``Call Me'' from Blondie was the 
top song.
    [Laughter.]
    Senator Klobuchar. So I wanted to make that. And I assume 
it doesn't change any of your answers.
    Ms. Kagan. Isn't email a wonderful thing? You can learn 
you're wrong right away.
    [Laughter.]
    Senator Klobuchar. It is nice. Thank you.
    Chairman Leahy. Trust me, I do.
    [Laughter.]
    Chairman Leahy. I was just looking at some of the ones that 
have come in since this started.
    Senator Specter, you just wanted to put a letter in?
    Senator Specter. Yes, Mr. Chairman. Following Senator 
Franken's questioning, I ask consent that a letter dated May 
11, 2010 from Senator Casey and me to the Chairman and all the 
members of the Federal Communications Commission regarding the 
NBC-Comcast merger be placed in the record.
    Chairman Leahy. Without objection, so ordered.
    Senator Specter. I thank the Chair.
    [The information appears as a submission for the record.]
    Chairman Leahy. We will go to Senator Sessions, then 
Senator Hatch if he so wishes, and then Senator--let me see who 
else? Senator Grassley, did you want more? And, Senator Coburn, 
you want more.
    Senator Sessions.
    Senator Sessions. We are doing our best to be cooperative.
    Chairman Leahy. I still withheld most of my time from my 
second round.
    Senator Sessions. You are very generous. Well, we would 
normally be going into tomorrow with these hearings. Because of 
the extraordinary events of the week, Mr. Chairman, I am glad 
to work with you to try to finish up tonight, and we will do 
our best to do that.
    Chairman Leahy. I would note again for the record Senator 
Sessions has been extraordinarily cooperative in trying to do 
that.
    Senator Sessions. But I know you know that this is not a 
little matter. This is a very, very significant matter. A 
nominee could serve, if she served as long as Justice Stevens, 
34 years--38 years on the bench, and we wish you a productive 
service if that occurs.
    I would say at to what kind of agenda you should bring to 
bear, I think the oath sets a good agenda. The oath is that you 
would impartially do your duty with equal right to the poor and 
the rich, without respect to persons under the Constitution and 
laws of the United States. And I guess I would ask you a 
question. One columnist I saw said, ``Would you do so without 
any mental reservation or purpose of evasion? ''
    Ms. Kagan. Senator Sessions, I agree with you that that is 
exactly what I should be doing if I am fortunate enough to be 
confirmed, and I would do so without any mental reservation or 
purpose of evasion.
    Senator Sessions. All right.
    Ms. Kagan. It feels a little bit odd to be taking what 
seems like that oath at this table.
    Senator Sessions. A bit early. But it is not an exact copy.
    You talked about Miguel Estrada. I so admired him and still 
do, and I think without a doubt spoke more on the floor in 
support of his confirmation than probably any other Senator. 
One of the big issues that occurred was whether or not the 
internal memoranda of the Department of Justice should have 
been produced so that people in the Senate, mainly my 
Democratic colleagues who filibustered his nomination and kept 
it from ever coming up to a vote, which he would have been 
confirmed had that occurred. Their objection in large part 
seemed to be that those internal memoranda should have been 
produced, whereas every living Attorney General--every living 
former Solicitor General wrote that those documents should not 
be produced.
    So I guess I would ask you, Solicitor General, do you think 
now that you should produce those documents? Or do you think 
the better policy is the one the Bush administration pursued, 
which was not to go down the road of producing such documents?
    Ms. Kagan. Senator Sessions, before you said it, I was just 
going to say that, in fact, every living Solicitor General did 
say that those documents ought not to be produced, and they 
said that because of an understanding about how the office 
works and how important confidentiality within the office is to 
effective decision-making. And I think that that's absolutely 
right, and it is one of the reasons why I have not wanted to 
talk about any internal deliberations that have occurred within 
the office, and I certainly think that it was the right view 
then that those documents from within the office should not 
have been produced.
    Senator Sessions. Well, I would say I have been interested 
in what might be in those internal documents you were involved 
in in the Solicitor General's office, but have refrained from 
asking for it. But based on that answer, I assume that you 
would advise other members of the Senate that in the future 
they should not be demanding such documents of a nominee, 
absent some special, discrete problem that may justify it in an 
unusual case.
    Ms. Kagan. I do think that the Office of Solicitor General 
is a very special kind of office where candor and internal 
really truly thorough deliberation is the norm and that it 
would very much inhibit that kind of appropriate deliberation 
about legal questions if documents had the potential to be made 
public generally in that way.
    Senator Sessions. Thank you. United States Code 983, the 
Solomon Amendment, I believe the last of the four amendments 
that we passed to try to make sure that our law schools could 
not continue to get around it some way and find a loophole, 
says this: that the military must be given access ``that is at 
least equal to the access to campus and to students that is 
provided to any other employer.''
    My question to you is: During the entire time you were 
dean, did you give the military at least equal access to any 
other employer?
    Ms. Kagan. Senator Sessions, our consistent view was that 
we were in compliance with the Solomon Amendment. Of course, 
the Department of Defense determined otherwise, and when the 
Department of Defense determined otherwise, we complied with 
what the Department of Defense asked of us.
    Senator Sessions. I do not think that answered the 
question. I do not think there is any doubt that they were not 
given equal access to the campus. It was based on a decision 
you made to reverse previous Harvard policy, and I just remain 
troubled that we cannot seem to get in sync on that issue. It 
is a big problem for me.
    My colleague asked about judicial activism. I would say 
that Judge Barak's statement that Lindsey Graham read is a 
classic. He says, ``The statute remains the same as it was, but 
its meaning changes because the court has given it a new 
meaning that suits new social needs.''
    I believe an activist--and I think I am quoting Senator 
Hatch, although he would not give me credit for it--he would 
not take credit for it. My view of an activist judge is one who 
allows their personal, political, ideological, religious or 
other views to cause them to not be faithful to the law. And 
when Justice--I know you are rushing me, Mr. Chairman.
    Chairman Leahy. I am not rushing you.
    Senator Sessions. You are breaking my little train of 
thought. It is so easy. My brain is weak. But Justice----
    Chairman Leahy. It probably is the third or fourth----
    Senator Sessions--[continuing]. Marshall--well, I guess 
Solicitor General Marshall and the courts who ruled against 
separate but equal, I do believe in my mind, by my definition, 
that was a decision consistent with the plain words of the 
Constitution. When you said a child could not go to this school 
because of the color of their skin and another one must go to 
that school simply because of the color of their skin, that is 
not equal protection. So I think they just simply returned to 
the plain words of the document, and there was evidence that 
the people who drafted it had that in mind. But I think 
originalism has its limits. Each theory has its limits. But 
fundamentally I think it is not activism to reverse a bad 
decision, and the Court should do that, and the courts who 
failed to set aside bad decisions are not in harmony with the 
law or are failing in their responsibilities.
    Mr. Chairman, one more.
    I did not quite understand. I thought that Harvard had 
abandoned any constitutional law course requirement. You and 
Senator Grassley I think talked about first-year law school 
requirements of constitutional law. Is there a requirement at 
Harvard in any year that they take constitutional law?
    Ms. Kagan. Senator, at least as far back as when I was a 
student, there has actually not been a requirement that 
constitutional law is taken, but almost all students take a 
very great deal of constitutional law.
    Senator Sessions. But international law was required 
recently? A course in international law was required recently?
    Ms. Kagan. When we reviewed our first-year curriculum, we 
determined really because the constitutional law professors of 
the school wanted to keep constitutional law in the second and 
third year where it could be taught more in-depth and more 
broadly where students would have really greater time to study 
it, the constitutional law professors thought that it would not 
be a good idea to put it in the first year. Some constitutional 
law actually we did put into the first year in a course on the 
governmental process, and particularly that deals with 
separation of powers law.
    In general--and this has been true for a long time--Harvard 
has taught constitutional law in the second and third year 
where there are not requirements, but the vast majority of 
students take a very great deal of constitutional law.
    Senator Sessions. Well, yesterday you indicated that the 
Court could consider foreign court opinions as they could 
``learn about how other people might approach'' and think about 
approaching legal issues. And you said, ``I guess I am in favor 
of good ideas coming from wherever you can get them.'' I think 
some of the Justices on the Court have used that phrase. But 
ideas sound like policy to me. It does not sound like authority 
to me.
    I guess I want to ask you, there is a raging debate on the 
Court and within the legal community over the propriety of 
citing foreign law in opinions as providing guidance. Justice 
Stevens in the McDonald firearms case Monday dissented and 
cited ``the experience of other advanced democracies'' 
regarding their gun restrictions.
    We have got a constitutional amendment that says you have 
the right to keep and bear arms. He wants to consider the 
experience of other advanced countries.
    All right. This is my last question.
    He went on to say, ``While the American perspective must 
always be our focus, it is silly, indeed arrogant, to think we 
have nothing to learn about liberty from the billions of people 
who live beyond our borders.'' And Justice Scalia noted with 
some sarcasm that, ``No determination of what rights the 
Constitution of the United States covers would be complete, of 
course, without a survey of what other countries do.'' In other 
words, he was saying he thought this was a very unwise policy.
    So I would ask you on whose side do you come down, Justice 
Scalia's or Justice Stevens'?
    Ms. Kagan. Well, Senator Sessions, I have not read the 
McDonald case so I have not read what either Justice Scalia or 
Justice Stevens has to say about that question. It is 
interesting that you ask this with respect to the Second 
Amendment, because I think that I was asked about this question 
during my SG confirmation, was given a written question about 
whether I thought that the use of foreign law was appropriate 
in the context of the Second Amendment. And I hope I am 
remembering this correctly that I said it was not, that the 
Second Amendment question as defined by Heller was so peculiar 
to our own constitutional history and heritage that, you know, 
foreign law did not have any relevance.
    So I hope I am paraphrasing that accurately, but I know I 
wrote about it to the Senate previously.
    Senator Sessions. Thank you, Mr. Chairman.
    Chairman Leahy. Thank you.
    I will also put in the record--you had mentioned Solicitors 
General. We have a letter directed to Senator Sessions and 
myself signed by Solicitors General in the administrations of 
Presidents Ronald Reagan, George H.W. Bush, William Clinton, 
and George W. Bush, all supporting you, Ms. Kagan, to be on the 
Supreme Court. It is signed by Charles Fried, Kenneth Starr, 
Drew Days, Walter Dellinger, Seth Waxman, Ted Olson, Paul 
Clement, Gregory Garre, all supportive. And I will put that in 
the record.
    [The letter appears as a submission for the record.]
    Chairman Leahy. Senator Grassley, you are recognized.
    Senator Grassley. If you answer the questions briefly, I 
will not need the 13 minutes and 10 seconds that Senator 
Sessions just took.
    Ms. Kagan. You were counting, huh?
    Senator Grassley. Here is where we are. I want to make one 
statement because I did not want you to have the last word on 
Baker and settled law, so I would make this clarification, and 
you do not need to comment.
    My question on the precedential value of Baker was whether 
Baker is binding as settled law on lower courts until the 
Supreme Court revisits the issue. The Supreme Court has stated, 
``Lower courts are bound by summary decisions by this Court 
`until such time as the Court informs (them) that (they) are 
not.' '' So until the Supreme Court speaks directly in response 
to the issue in Baker, it seems that the Court precedent 
supports the position that Baker is settled law and should 
control in the lower courts.
    Ms. Kagan. Senator Grassley, may I?
    Senator Grassley. You may.
    Ms. Kagan. This is not an area which I know a great deal 
about, so I thought that I was stating, you know, what Senator 
Leahy called hornbook law on this question. But it is not an 
area that I have studied in any depth, and I look forward to 
being further informed about it.
    Senator Grassley. Thank you. I want to go to the fact that 
in 1996 Congress passed and President Clinton signed into the 
law the Defense of Marriage Act. That law defines marriage for 
purposes of Federal law as between one man and one woman, and 
it also provides that no State or territory shall be required 
to give effect to another State that recognizes same-sex 
marriages. Both provisions have been challenged as 
unconstitutional, and Federal courts have upheld both.
    Do you agree with Federal courts which have held that DOMA 
does not violate the full faith and credit clause and is an 
appropriate exercise of Congress' power to regulate conflicts 
between the laws of different States?
    Ms. Kagan. Senator Grassley, I do think that that is an 
issue that might come before the Court, the constitutionality 
of DOMA, so it would not be appropriate for me to comment on 
it.
    Senator Grassley. OK. Let me move on then, a little bit 
along the same line but a different approach, whether or not 
you played any role in approving or reviewing the Reply 
Memorandum in Support of Defendant United States' Motion to 
Dismiss in the case of Smelt v. United States? If so, could you 
please explain why the Justice Department abandoned the 
argument that traditional marriage rationally served the 
legitimate interest of promoting the raising of children by 
both parents, which Congress could reasonably conclude is the 
optimal environment for raising children?
    Ms. Kagan. Senator Grassley, this was not a case in which I 
was the decisionmaker. It was a case in district court, and the 
Solicitor General's decision-making responsibilities take over 
at the appellate court level. It was a case in which members of 
my office and I reviewed some briefs and participated in some 
discussions. And I think I would need to say with respect to 
those discussions that, you know, I cannot reveal any kind of 
internal deliberations of the Department of Justice, but just 
to say that, in general, lawyers do make a raft of decisions, 
strategic and otherwise, about how best to present cases. And 
the Department of Justice is right now defending the DOMA 
legislation in the courts in that case and in a couple of 
others.
    Senator Grassley. Do you believe that it was necessary to 
note in the Reply Memorandum that ``the Administration does not 
support DOMA as a matter of policy, believes that it is 
discriminatory, and supports its repeal'' ? Do you believe such 
language is consistent with your promise to vigorously defend 
the statutes of our country?
    Ms. Kagan. Senator Grassley, I am reticent to talk about 
particular decisions made with respect to that brief, not only 
because I was not the decisionmaker on that brief, but because 
the Department of Justice is currently litigating those cases, 
and I do not want to do anything that interferes or undermines 
or, you know, in any way gets in the way of the defense the 
Department of Justice is making on those cases.
    Senator Grassley. OK. Well, you took an oath to defend the 
laws of the United States, including DOMA. Would you agree that 
calling a law ``discriminatory'' and advocating for its repeal 
is no defense?
    Ms. Kagan. Senator Grassley, I do believe that the 
Department of Justice is vigorously defending DOMA in that case 
and in other cases.
    Senator Grassley. OK. On another matter, in Griswold 
Justice William Douglas stated----
    Chairman Leahy. How much more time would the Senator like?
    Senator Grassley. I want less than what Senator Sessions 
had.
    Chairman Leahy. Senator Sessions, of course, is the Ranking 
Member and by tradition----
    Senator Grassley. Oh. Well, then can I have 2 more minutes?
    Senator Sessions. Mr. Chairman, I think he can----
    Senator Grassley. Can I have----
    Senator Sessions. You can give him----
    Chairman Leahy. He asked for 2 more minutes, and I am going 
to give it to him. But I just want to know because we have to 
plan for the----
    Senator Grassley. This will be the last question.
    Chairman Leahy--[continuing]. Security people on the closed 
room.
    Senator Sessions. And we can be so pleased that he can be 
Ranking Member next year.
    [Laughter.]
    Senator Sessions. You should be nice.
    Chairman Leahy. I would miss you so much, I do not know if 
I could handle that.
    Go ahead, Senator Grassley.
    Senator Grassley. Do not worry.
    In Griswold, Justice William Douglas stated that, although 
the Bill of Rights did not explicitly mention the right to 
privacy, it could be found in the ``penumbras'' and 
``emanations'' of the Constitution.
    A two-part question. Do you agree with Justice Douglas that 
there are certain rights that are not explicitly stated in our 
Constitution that can be found by ``reading between the lines'' 
? Is it appropriate for a judge to go searching for 
``penumbras'' and ``emanations'' in the Constitution?
    Ms. Kagan. I think, Senator Grassley, that rights have to 
have textual bases, and so I would not subscribe to the Justice 
Douglas approach on penumbras and emanations.
    I do, as I think every nominee has, support the result in 
Griswold. I think that the way other Justices have understood 
that result as properly justified is through the Liberty Clause 
of the 14th Amendment.
    Senator Grassley. Well, then I think from your answer, 
which I like, that you do not--you would not say that there are 
a lot of other rights that are implicitly written into the 
Constitution then?
    Ms. Kagan. I do believe that rights need a textual basis in 
the community, and they might have that basis in general 
clauses, but there needs to be a textual basis in the 
Constitution for any right.
    Senator Grassley. OK. Then the last point would be a 
continuation of this, and I think you probably answered it, but 
let me tell you why I ask these questions, because of somebody 
called Justice Souter. Some judges found ways to make law 
through ``penumbras'' in the Constitution. Justice Souter in 
his confirmation hearing told me that the courts fill 
``vacuums'' in the law. Justice Sotomayor has said that the 
court of appeals is ``where policy is made.'' If you are 
confirmed, will you try to find a creative way to ``make 
policy'' from the bench based upon ``penumbras'' or Souter's 
``vacuums'' ?
    Ms. Kagan. Senator Grassley, I have tried during the course 
of this day and a half to state how I would approach 
constitutional interpretation, that where the text governs, the 
text governs; where more work needs to be done, what judges 
ought to look to is the structure of the Constitution, the 
history of the Constitution, and the precedent relating to the 
Constitution. And that is what I would do in any case. It is 
law all the way down, I think is what I said yesterday, and 
that is what I believe. It is not personal views. It is not 
moral views. It is not political views. It is law all the way 
down.
    Senator Grassley. I gave you an opportunity to sum up 2 
days of what you have been trying to tell us. Thank you.
    I was 5 minutes short of Senator Sessions.
    Chairman Leahy. I found when the Republicans were in 
control and I was ranking members, they always gave me a little 
bit extra and Senator Sessions has never been cutoff. Senator 
Graham, did you have anything?
    Senator Graham. No.
    Chairman Leahy. Senator Coburn, how much time would you 
like?
    Senator Coburn. Oh, less than 10 minutes.
    Chairman Leahy. You are recognized. Go ahead.
    Senator Coburn. Thank you.
    Chairman Leahy. And at that point, just so people know on 
the schedule, when Senator Coburn finishes, you have a short 
10-minute statement you want to make, I will too and we will 
break for about 15 minutes and then reconvene in the regular 
room, right? The regular room which has been secured by the 
people who do that. I have only been here for 36 years, I am 
still learning my way around. Senator Coburn, go ahead.
    Senator Coburn. Thank you, Mr. Chairman. Again, thank you 
for your testimony and your answers to our questions. I know it 
hasn't been the most pleasant experience in the world, but this 
is my fourth one and I think this has been one of the best.
    Ms. Kagan. Senator Coburn, I want to say that I think it 
has been terrific. Everybody has been very fair and very 
considerate and I hope you found it informative. I found it 
somewhat wearying but actually a great moment in my life.
    Senator Coburn. Just a couple of questions and hopefully I 
won't use all 10 minutes.
    I was interested in your discussion about the economic 
versus non-economic test on the commerce clause and just to put 
your feelings on whether or not that test supercedes original 
intent.
    Ms. Kagan. Well, Senator Coburn, I think this goes back to 
some of the discussion that we were having yesterday. As I 
understand the court's commerce clause law, that test is the 
governing test which is entitled to the weight the precedent 
usually has.
    That means that it's not enough to say that the decisions 
are wrong and it doesn't matter why the decisions are wrong. It 
doesn't matter whether the decisions are wrong because they are 
contrary to original intent or for some other reason why people 
might think that decisions are wrong.
    The point of precedent is to constrain judges and the point 
of precedent is to remind judges that they don't know 
everything and that they should rely on sort of the wisdom of 
the courts and of other judges over time. I think that, and the 
point of precedent is to provide stability and reliability in 
the law.
    I think that those values govern even though somebody might 
come in and say a decision is wrong. That is true if the person 
says the decision is wrong because it violates the text or it 
violates the history, the original history or it violates 
anything else that there is, there needs to be a kind of high 
bar for reversing precedent.
    Senator Coburn. But that does not preclude that precedent 
can be reversed.
    Ms. Kagan. It can be reversed, and we have talked on 
various occasions about when it can be reversed. In particular 
if the precedent is unworkable or if the precedent's doctrinal 
support has eroded or if the precedent no longer fits the 
actual factual empirical circumstances that exist in the 
country, there are occasions in which precedent can be 
reversed.
    Senator Coburn. Let me go onto another section if I might. 
The coercion test that you discussed. Do you find it ironic 
that the coercion test applied to graduating seniors in high 
school who are old enough to go and die for this country but 
the coercion test says they are not old enough to make a 
decision about something they hear? Is that ironic to you?
    Ms. Kagan. Senator Coburn, I have tried hard not to 
characterize particular decisions, not to grade them, not to 
give them the thumbs up or the thumbs down.
    Senator Coburn. You would admit there is some irony in 
that?
    Ms. Kagan. Senator Coburn, when I talked about this with, I 
forget who I talked to about it.
    Senator Coburn. I do, too. I forgot who you talked to about 
it as well.
    Ms. Kagan. I did talk about how one of the, I think an 
attribute of the coercion test is that four different people 
can look at a practice and have four different views as to 
whether coercion has in fact taken place.
    I think everybody would say that coercion, adults are 
different than children. I think the question of sort of who 
counts as a child and who counts as an adult is one of those 
matters that I think the coercion test is, notably presents 
that different people can look at the same set of facts and 
reach different conclusions as to whether the government in 
fact has engaged in coercive activity.
    Senator Coburn. Thank you. I have two final questions. One, 
was there at any time, and I'm not asking what you expressed or 
anything else, was there at any time you were asked in your 
present position to express an opinion on the merits of the 
health care bill?
    Ms. Kagan. There was not.
    Senator Coburn. Thank you. And final question. It is your 
testimony before this Committee that you had no efforts at all 
to influence the decision by ACOG in terms of what they 
ultimately put out on partial birth abortion?
    Ms. Kagan. My only dealings with ACOG were about talking 
with them about how to ensure that their statement expresses 
their views. I was a staffer with no medical knowledge. I would 
not have presumed to nor would ACOG have thought it was 
relevant for me to.
    Senator Coburn. But you were part or at least you 
acknowledge being a part of the people who developed the four 
options for President Clinton.
    Ms. Kagan. I definitely participated in discussion of this 
issue.
    Senator Coburn. And you referenced that that was our memo, 
correct? In other memos to the President.
    Ms. Kagan. Yes. I mean, I definitely participated as an 
aide in trying to implement the President's views on this 
issue.
    Senator Coburn. And you were concerned with their original 
language, that is true?
    Ms. Kagan. I was----
    Senator Coburn. ACOG's original language. You were 
concerned with. It was problematic.
    Ms. Kagan. I was concerned that that language did not 
accurately reflect what ACOG's views were and what they had 
expressed to us.
    Senator Coburn. Their original language, being somebody 
that has delivered thousands of--where it was absolutely 
accurate. Their second language was not accurate. I would think 
that the vast majority of those who have been through my 
experience would agree with that.
    I have no other questions for you. I thank you for the 
spirit in which you answered the questions here today. As was 
said in the paper today, you kind of light up a room. I agree 
with that. Congratulations on your nomination.
    Ms. Kagan. Thank you so much, Senator Coburn.
    Chairman Leahy. Thank you.
    Senator Coburn. And that's 3 minutes early, Mr. Chairman.
    Chairman Leahy. It's what?
    Senator Coburn. Three minutes early.
    Chairman Leahy. God bless you. I will put it on your 
positive----
    Senator Coburn. I know the Chairman remembers when he was a 
lowly low Ranking Member of the Judiciary Committee some 35 
years ago.
    Chairman Leahy. I have so many stories, I'm not going to do 
it with the television. I will tell you a couple of them 
afterwards. I will put the extra 3 minutes in your ledger. Now 
it is very full.
    Senator Coburn. Thank you.
    Chairman Leahy. Senator Session, you want to make a short 
posing, I understand?
    Senator Sessions. I would be pleased to. First I would 
offer a number of letters for the record from Colonel Gonzolo 
Bagara who would oppose the nomination, Judicial Action Group, 
the National Right to Life Committee, Military Families United, 
Southern Baptist Ethics and Religious Liberty Commission, 
American Association of Christian Schools and Center for 
Military Readiness who expressed opposition to the nominee.
    We talked about a lot of important issues today. The 
interstate commerce issue, several of our Committee members 
asked about it. Lopez, Morrison, a 5-4 decision. Foreign law, 
that's a ranging debate within our country today.
    I do not see how anyone can justify a citation to actions 
outside the country as any authority whatsoever to define what 
Americans have done. Americans believe that you only govern 
with the consent of the governed and we have not consented to 
be governed by Europe or any other advanced nation.
    People are concerned about abortion issues, they are 
concerned about national security. We've got raging debates in 
our conference over that. I think this nominee in private life 
wrote a very intemperate letter about some of those issues that 
causes me concern.
    The ownership of firearms. We've got two seminal cases 5-4 
that had it been one vote switched within 5-4, completely 
eviscerating the right to keep and bear arms, allowing any city 
or any county in America, any state to completely deny the 
people of the right to keep and bear arms.
    People are worried about that. Senator Coburn has been, 
some of the things he's saying that I'm hearing as I'm going 
around my state, people are concerned and are asking the 
question is there any limit on what you do in Washington? Does 
anybody care? We do. We are tired of this. We are worried about 
this and I think their worries are legitimate. I don't think 
it's extreme.
    We are talking about activism. Justice Barak says, you 
know, the words don't change but you give them new meaning that 
suits new social needs. Well, I know you said he's your hero 
and I'm sure you're correct that you don't adopt all of his 
philosophies, but many judges in the court system in America 
today are not too far from that I believe, and I believe some 
of those judges are not fulfilling their oath. I'm not going to 
vote for a judge I do not believe is committed to that.
    I am worried about the idea of legal progressivism. I think 
that's a pernicious philosophy. A liberal ideal has always, I 
have had, I do admire the liberal ideal in the American 
tradition. But this progressive movement I think is 
particularly hostile to playing the law. I'm not pleased with 
it.
    The President, I think as Senator McCain said is a legal 
progressive, or Mr. Greg Craig, his counsels have said and 
indicated that you are, Ms. Kagan. So I worry about that.
    And I would just say with regard to the discussion about 
Harvard and the military, I am concerned about the way you 
overall described what happened, suggesting that it really 
wasn't that big a deal and that you always wanted to help the 
military.
    I was involved in writing the Solomon Amendment, several 
different versions of it. It took four times to get it so the 
deans around the country couldn't figure a way to get around 
it. It was a national debate, it was very intense at Harvard 
and I do believe that your actions, I think your actions there 
were not consistent with the law.
    So a nominee is a person of skill and intelligence who has 
a diverse background. I do think that this Senate has a very 
serious responsibility at this time and people are deeply 
worried about our Constitution and is it being followed. They 
want to know that the next nominee to our Supreme Court will be 
faithful to that Constitution even if they don't like it.
    Some of the things you have said today have indicated that, 
but a combination of record and statements leave me uneasy. So 
I look forward to studying that record and trying to fairly and 
objectively make my evaluation of whether I should vote for you 
for Supreme Court of the United States. Thank you, Mr. 
Chairman.
    Chairman Leahy. Solicitor General Kagan, the good news is 
that this is in all likelihood the last time you will ever have 
to be in a public hearing before a Senate Judiciary Committee.
    Some of us have probably enjoyed it more than you have. I 
have appreciated your, not only your intellect but your good 
humor throughout.
    I said to somebody, see, we do agree on something. I said 
to somebody earlier today who mentioned I have been here 
throughout all the hearings, I said it was like going back to 
my favorite courses in law school.
    You have patiently listened to our statements, you have 
answered our questions over the last 3 days, yesterday you 
testified 10 hours, today you have been here since 9 this 
morning. Each Senator both sides participated in a 30-minute 
opening round. Some took the opportunity for another 20-minute 
round and some have gone beyond that to over an hour.
    Of course I mention for the public watching, this is in 
addition to our other interactions with you. All of us have met 
with you privately. I know speaking from my views, when I met 
with you you answered openly and candidly every single question 
I asked you.
    I appreciate that you engaged with Senators, you have 
answered their questions more fully than many recent nominees. 
Senators on both sides of the aisle have liked and agreed with 
some of your answers and they have differed with others.
    That, based on my experience, is not unusual in hearings. 
Based on my review of your record, now your answers this week I 
expected that you and I would not always agree. I do not agree 
with every decision that Justice Stevens has written or Justice 
O'Connor or Justice Souter, but I have such great respect for 
their judgment. I respect their judicial independence and I 
have never once regretted my vote for each of these Justices.
    I mentioned each were nominated by a Republican President. 
I voted for each of them. I have never regretted those votes 
for each of them. I hope the Senators and the American people 
have a better sense of the kind of Justice you would be.
    You demonstrated an impressive, I'd say an encyclopedic 
knowledge of the law and we can see why so many of your 
students, many of whom I have met here during these hearings 
consider you a wonderful teacher of the law.
    I told my wife last night, I really wish I could be back in 
law school taking a course with you. You spoke about your 
approach to the law, you consistently spoke of judicial 
restraint and your respect for our Democratic institutions, 
your commitment to the constitution and the rule of law.
    You demonstrated a traditional view about deference to 
Congress and judicial precedent, a view that conservatives used 
to embrace and fortunately few still do. I'm pleased that over 
1,000 members of the public were able to attend your hearings 
in person. Thousands more watched your confirmation hearing 
live on television and we streamed it online through the 
Judiciary Committee website.
    I believe the country needs and deserves a Supreme Court 
that bases its decision on the law and the Constitution, not 
politics or ideological agenda by either the right or the left. 
No Justice should substitute his or her personal preferences 
and overrule Congressional efforts to protect hard working 
Americans pursuant to our constitutional role.
    Judges have to approach every case with an open mind and a 
commitment to fairness. I respect your plight and I take so 
seriously which you pledge to all of us here that you will do 
your best to consider every case impartially, modestly, with a 
commitment to principle in accordance with law.
    Solicitor General Kagan, I believe you. We stand in recess.
    [Whereupon, at 5:35 p.m., the Committee was recessed.]


THE NOMINATION OF ELENA KAGAN TO BE AN ASSOCIATE JUSTICE OF THE SUPREME 
                       COURT OF THE UNITED STATES

                              ----------                              


                         THURSDAY, JULY 1, 2010

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 4:04 p.m., in 
room SH-216, Hart Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy, Specter, Schumer, Durbin, Cardin, 
Klobuchar, Kaufman, Sessions, Hatch, and Kyl.
    Chairman Leahy. Good afternoon. First off, I should say I 
apologize to everybody who has been waiting patiently. In 
respect for our former colleague and long-serving colleague, 
Senator Robert Byrd, whose body was lying in repose in the 
Senate, some that is an extraordinary occurrence, until just a 
few minutes ago, we decided not to hold the hearing during that 
time.
    There are a number of panels. If any one of you has a full 
statement, we will put the statement in the record, no matter 
what. You can just submit your statement. All of it will be in 
the record, and then I would urge you, each one, to keep within 
the 5-minute limit, and then Senators will be recognized for 5 
minutes each to go around.
    I would ask all of you to stand. I will administer an oath.
    [Laughter.]
    Sorry. No, just the witnesses.
    I was beginning to feel important at that point. I never 
had a room stand before. Colonel, I know about your shoulder, 
and do not worry. We are not going to ask you to raise your 
right hand. But others, if you would, repeat after me, do you 
solemnly swear that the testimony you all give in this matter 
will be the whole truth and nothing but the truth, so help me 
God? All you have to do is say, ``I do.''
    Ms. Ledbetter. I do.
    Mr. Gross. I do.
    Ms. Gibbins. I do.
    Captain Youngblood. I do.
    Captain Hegseth. I do.
    Colonel Moe. I do.
    Chairman Leahy. Thank you. Frankly, I cannot imagine any 
member of this panel or the other panels doing anything but.
    Our first witness is Ms. Ledbetter. Lilly Ledbetter served 
as a manager at the Goodyear Tire and Rubber Company plant in 
Gadsden, Alabama, for more than 19 years. She was the plaintiff 
in the employment discrimination suit Ledbetter v. Goodyear, 
and she is now a tireless advocate for workplace fairness. Her 
case was one where she had been paid less than men doing the 
same thing, and that was kept hidden from her until well after 
she had retired. The Lilly Ledbetter Fair Pay Act of 2009 is 
named in her honor.
    Ms. Ledbetter, please go ahead.

STATEMENT OF LILLY LEDBETTER, PLAINTIFF, LEDBETTER v. GOODYEAR 
                              TIRE

    Ms. Ledbetter. Thank you, Mr. Chairman and members of the 
Committee. My name is Lilly Ledbetter, and it is an honor to be 
here. I am not a lawyer, but I know two things. I know that the 
Supreme Court's decisions have a profound effect on everyday 
Americans, and I have learned that who is on the Supreme Court 
makes all the difference.
    I never in a million years would have thought that one day 
I would end having my fate decided by the Supreme Court. But I 
did. It all started in 1979 when Goodyear hired me to work as a 
supervisor in their tire plant in Gadsden, Alabama. I worked 
hard and I was good at my job, but Goodyear did not make it 
easy. I was one of only a few female supervisors, and I faced 
discrimination and sexual harassment by people who did not want 
women working there.
    At the end of my career, someone left an anonymous note in 
my mailbox at work showing how much I got paid compared with 
the male managers. I was actually earning 20 percent less than 
the lowest-paid male supervisor in the same position.
    On my next day off, I filed a complaint with the EEOC. 
Goodyear tried to say I was a poor worker and that is why they 
had given me smaller raises than the men. But after hearing all 
of the evidence, the jury did not believe them. It found that 
Goodyear had discriminated against me because I was a woman. 
That was a good moment. The jury was not going to stand for a 
national corporation paying me less than others just because of 
my sex.
    But then by a single vote, the Supreme Court took it all 
away. Five of the Justices said I should have complained after 
the first time I was paid less than the men, even though I did 
not know what the men were getting paid and had no way to prove 
that it was discriminatory.
    The Court said that once 180 days passed the smaller 
paychecks no longer counted as discrimination. But it sure 
feels like discrimination when you are on the receiving end of 
that smaller paycheck and trying to support your family with 
less money than the men are getting for the same job.
    And Goodyear continues to treat me like a second-class 
citizen and worker today because my pension and Social Security 
is based on the amount I earned. Goodyear gets to keep my extra 
pension as a reward for breaking the law.
    Justice Ginsburg hit the nail on the head when she said 
that the majority's decision did not make sense in the real 
world. People cannot go around asking their co-workers how much 
money they are making. In lots of places that could get you 
fired. Plus, even if you know that some people are getting paid 
more than you, that is no reason to suspect discrimination 
right away. You want to believe that your employer is doing the 
right thing and it will all even out down the road. And, 
anyway, it is hard to fight over a small amount of money early 
on.
    But the majority did not understand that or did not care. 
How it could have thought Congress would have intended the law 
to be so unfair I will never know. So Congress had to pass a 
new law to make sure that what happened to me would not happen 
to others in the future. My case shows that who gets appointed 
to the Supreme Court really makes a difference.
    If one more person like Justice Ginsburg or Justice Stevens 
were on the Court, one more person who understands what it is 
like for ordinary people living in the real world, then my case 
would have turned out differently.
    Since my case, I have talked to a lot of people around the 
country. Most cannot believe what happened to me and want to 
make sure that something like it does not happen again. They do 
not care if the Justices are Democrats or Republicans or which 
President appointed them or which Senators voted for them. They 
want a Supreme Court that makes decisions that make sense.
    That is why these hearings are so very important. We need 
Justices who understand that law must serve regular people who 
are just trying to work hard, do right, and make a good life 
for their families. And when the law is not clear, Justices 
need to use some common sense and keep in mind that the people 
who write laws are usually trying to make a law that is fair 
and sensible.
    This is not a game. Real people's lives are at stake. We 
need Supreme Court Justices who understand that.
    Thank you very much for allowing me this honor. Thank you, 
sir.
    [The prepared statement of Ms. Ledbetter appears as a 
submission for the record.]
    Chairman Leahy. Thank you very much, Ms. Ledbetter. You 
have been before this Committee before, and I always appreciate 
your being here.
    Our next witness is Jack Gross. He recently retired from 
the Farm Bureau Financial Services, FBL, after 29 years. He was 
the plaintiff in Gross v. FBL Financial Services, Inc. The 
Supreme Court's 5-4 decision in that 2009 case made it more 
difficult for employees to prove they are victims of age 
discrimination. I advocated for the passage of the Protecting 
Older Workers Against Discrimination Act.
    Please go ahead, sir.

  STATEMENT OF JACK GROSS, PLAINTIFF, GROSS V. FBL FINANCIAL 
                         SERVICES, INC.

    Mr. Gross. Thank you, Chairman Leahy, Ranking Member 
Sessions, and Committee members, for inviting me here to tell 
my story and state my position regarding the outcome and 
implications of the Supreme Court decision in my case, Gross v. 
FBL.
    It is an honor to be given this opportunity to speak out on 
behalf of millions of older workers, all too many of whom have 
experienced discrimination in the workplace.
    While my name has now become associated with age 
discrimination, my story is being duplicated daily across the 
country, and my case has already been cited hundreds of times 
to deny remedies to victims of many other non-Title VII forms 
of workplace discrimination. I certainly never imagined that my 
case would end up here when it all started over 7 years ago or 
that it would have such far-reaching implications.
    Very briefly, my employer, Farm Bureau Insurance, or FBL, 
demoted all claims employees who were age 50 or over and had 
supervisory or higher positions. I was included in that 
wholesale demotion even though I had 13 consecutive years of 
performance reviews in the top 3 to 5 percent of the company. 
My career and my contributions were exceptional, and they were 
very well documented for the jury.
    With very strong evidence of age discrimination, I filed a 
complaint, and 2 years later a Federal jury spent a week 
listening to all the testimony, seeing all the evidence, and 
being instructed on the ADEA, your law. The verdict came back 
in my favor and I thought the ordeal was over in 2005. As we 
now know, it was just the beginning.
    FBL appealed and the Eighth Circuit overturned my verdict 
because I had a ``mixed motive'' jury instruction, and they 
said that required so-called direct evidence instead of just 
the preponderance of circumstantial evidence that we had 
provided.
    With four decades of legislation and court precedent 
overwhelmingly on our side, we appealed to the Supreme Court, 
and we were elated when they accepted certiorari on that one 
issue of direct evidence requirements and ``mixed motive'' 
instructions. At the hearing, however, the Supreme Court broke 
with their own protocol and allowed the defense to advance an 
entirely new argument, one that had not been briefed nor had we 
been given an opportunity to prepare a rebuttal. In effect, it 
was a bait-and-switch on us--accepting cert. on our question 
and then ignoring that question to use my case as a vehicle to 
eviscerate the clear intent of the ADEA by creating a new 
hierarchy of workplace discrimination. Those that were 
specifically covered in Title VII were now at the top and 
required the prevailing standard of proof while all others, 
including age, now require--are at the lower tier and require a 
new and significantly higher standard of proof.
    I believe Congress, the branch of Government closest to the 
people clearly intended to abolish discrimination in the 
workplace, not to create exceptions for it or to stratify it. 
We came to DC last June believing our highest Court would 
uphold the rule of law and apply it consistently to all areas 
of discrimination. We were disappointed and, quite frankly, 
disillusioned by their arrogance in putting their own ideology 
ahead of the clear will of Congress and their own precedents.
    Since the Supreme Court's decision, I have been 
particularly distressed over the collateral damage that has 
been inflicted on others. I hate having my name associated with 
the pain and injustice now being inflicted on other victims of 
discrimination because it is now nearly impossible to provide 
the level of proof required by that decision.
    My case went largely unnoticed by the media and the public, 
but its tentacles are going to impact the lives of millions of 
workers. I have to keep reminding myself that I am not the one 
who changed your law. Five Justices did. With that I am not 
labeling the Court as a bad Court, but it is one that got at 
least one case entirely wrong, and the way they did it was 
unjust. Mistakes can be fixed, and we can move on.
    Congress has a long history of working together on a 
bipartisan basis to create and maintain and level playing field 
in the workplace. The ADEA is just one example. I urge you on 
behalf of millions of workers who only want an equal 
opportunity to revive that bipartisan spirit you have 
demonstrated in the past on civil rights issues and pass the 
Protecting Older Workers Against Discrimination Act soon, 
before more of your constituents back home are hurt by the new 
Court-made law.
    I am here before you as a man who agonized over the 
decision to pursue this case. As much as I hate discrimination 
in all its forms, I knew that I would be burning my career 
bridges behind me once I was branded as litigious. My wife, 
Marlene, and I prayed about it, decided it had to be done, and 
we left the outcome in God's hands, never expecting that He 
would bring us here. If my experience eventually prevents 
anyone else from having to ensure the pain and humiliation of 
discrimination, I will always believe that this effort was part 
of God's plan for my life.
    Thank you.
    [The prepared statement of Mr. Gross appears as a 
submission for the record.]
    Chairman Leahy. Thank you very much, and thank you for 
coming here again.
    Jennifer Gibbins is the Executive Director of the Prince 
William Soundkeeper, the leading environmental advocacy 
organization in Prince William Sound, Alaska.
    Incidentally, I went there once years ago with former 
Senator Ted Stevens. It is a beautiful area.
    She lives in the remote fishing town of Cordova, the site 
of the 1989 Exxon Valdez oil spill. For the past 7 years, she 
has worked to inform the public about the ongoing 
environmental, economic, social, and cultural impacts of the 
Exxon Valdez oil spill.
    Ms. Gibbins, please go ahead.

STATEMENT OF JENNIFER GIBBINS, SOUNDKEEPER/EXECUTIVE DIRECTOR, 
                   PRINCE WILLIAM SOUNDKEEPER

    Ms. Gibbins. Thank you, Mr. Chairman and Committee members. 
I am honored to be here today and speak briefly regarding the 
spill's ongoing impacts to people of my community and across 
Prince William Sound. I also want to be clear that everyone 
here understands that I myself am not an Exxon plaintiff.
    The precedent-setting decision in that case equated Exxon's 
punishment, at the time the most profitable corporation in the 
world, to the loss of individual working men and women after 20 
years of litigation.
    When the decision was announced in my town, the streets 
were silent, people were somber, and they just did not speak 
for days. You walked into the local breakfast dive which is 
typically bustling with activity and fishermen talking about 
the upcoming season, and it was quiet. People were dazed. They 
stared at their eggs, they stared at the wall.
    There are five key messages I wish to deliver to you today, 
and they are especially important with what is going on in the 
gulf.
    First, above all, you cannot clean up an oil spill. Period.
    Second, the more than 32,000 victims of the Exxon Valdez 
spill were never made whole as Exxon promised. Regardless of 
compensatory or punitive damages, life as they knew it was 
permanently and irrevocably altered.
    Third, lingering oil persists in Prince William Sound to 
this very day, and you do not need a shovel to find it.
    Fourth, there is the pervasive sense that Government and 
the courts have failed the people--to the point where many 
question their relevance--and the question goes far beyond the 
health of their fundamental right to justice. They question its 
simple existence.
    Fifth, and perhaps most sadly, almost 20 years to the day, 
it is as if there is an echo coming from the gulf. The people 
of Prince William Sound stand in solidarity with the people in 
the gulf, and I do not know a single person who is surprised by 
what has happened. We tell them very clearly, do not believe a 
single word that BP is telling you. Do not expect anyone to 
help you. And, sadly, do not hold your breath when it comes to 
the courts.
    I am going to speak very briefly today to some of the 
impacts. There are four primary areas--environmental, cultural, 
economic, and social--and I am going to skip most of those and 
just focus on the societal impacts.
    One of the least understood impacts of the Exxon Valdez 
spill is the impact of litigation that continued for 20 years. 
Victims were promised in exact words--and we are hearing 
similar words today--that ``you are lucky it was Exxon'', that 
Exxon would ``make you whole,'' that the litigation ``will not 
go on for 20 years.''
    After the spill, there were divorces, suicides; there were 
families that lost everything, and a lot of people left. Men 
speak to this very day of the psychological struggle due to 
losing their identity as family provider.
    One fisherman, now 50, has described to me of sinking into 
a mental abyss over the years following the spill when his wife 
had to become the sole breadwinner for the family. He was so 
affected that he began to fantasize about killing her.
    Another fisherman friend of mine about the same age stunned 
the community at a gathering just 2 years ago, declaring that 
he had recently been contemplating suicide because of his 
feelings of worthlessness. At about that same time, a woman in 
Cordova told me that the endless court case made her feel that 
she simply did not exist as a human being.
    Personal resource loss, chronic stress, feelings of 
alienation, anxiety, social disruption--these have been studied 
by highly credentialed social scientists in our town for 20 
years, and these same scientists are now in the gulf.
    Because Exxon has such deep pockets--which, not 
incidentally, expanded exponentially over the past 20 years--
they could litigate endlessly, wearing down their victims who, 
even as they stood together, were dwarfed. Exxon knew that if 
they played it as long as they could, memories would fade, the 
context could be changed, and they could win big.
    In 2008, a representative for Exxon speaking in the media 
called the punitive damages as originally awarded ``an 
excessive windfall'' for the plaintiffs.
    Exxon fought hard to avoid a precedent, and the cruelest 
irony for the plaintiffs is that a precedent was indeed set, 
one that diminished them further.
    To be dragged through litigation for 20 years is to be 
victimized over and over again. The burden of proof is always 
on the victim, and we are now hearing this from BP. They will 
pay all ``legitimate'' claims. We in Prince William Sound know 
exactly what that means.
    Somewhere along the way America has forgotten that 
corporations do not own the air or the lakes or the rivers or 
the seas. A privilege to use them has been granted on behalf of 
the millions of citizens who do, in fact, own them, and the 
business community is not living up to that privilege.
    How often is the root of disaster a cost-cutting, profit 
margin issue? Citizens need a better way of ensuring that 
people in business take the time to do what is right. I support 
the Big Oil Polluter Pays Act, and I believe that it is time to 
update OPA 90.
    Today in Prince William Sound we are working to move on, 
and it has been a long haul. But the journey is just beginning 
for the people in the gulf. And I think Elena Kagan seems like 
a fine nominee to the Supreme Court. She clearly knows the law, 
and she has a passion for it. And she wants the job.
    I just wish the nomination process was more about thinking 
and thoughtful discussion and less about sort of the silly 
pursuit of the ``ah-ha'' moment.
    You know what they say about thinking: that it is 
patriotic.
    Thank you.
    [The prepared statement of Ms. Gibbins appears as a 
submission for the record.]
    Chairman Leahy. Thank you very much, Ms. Gibbins.
    Our next witness is Captain Flagg Youngblood. He is an Army 
veteran who deployed to Afghanistan in 2003 and 2004 as a 
member of the California Army National Guard. He has served as 
Director of Military Outreach for Young Americans Foundation. 
He is a native of Nashville, Tennessee. Captain Youngblood 
graduated from Yale University. Am I correct in all that?
    Captain Youngblood. Thank you. No. I will say just for the 
record that I actually did not serve in Afghanistan.
    Chairman Leahy. Oh, I am sorry.
    Captain Youngblood. I was deployed to the California 
National Guard in command of a unit that oversaw security for 
Travis Air Force Base.
    Chairman Leahy. Thank you. Please go ahead, sir.

   STATEMENT OF CAPTAIN FLAGG YOUNGBLOOD, UNITED STATES ARMY 
                           (RETIRED)

    Captain Youngblood. Thank you for the opportunity today to 
give voice to the concerns many of our fellow citizens and 
veterans have regarding Elena Kagan's Supreme Court nomination.
    My father, who is a veteran from Vietnam, asked me to join 
the Army when I was 16. He said to me, ``You owe it to our 
country. You do not have to make a career of it, but you 
should.''
    As a college freshman in 1993, my daily walks by the war 
memorial in the heart of Yale's campus made me question why 
learning the art of military leadership required a 65-mile 
drive to the University of Connecticut for ROTC. Never mind the 
gratuitous jabs when a tight schedule required wearing the 
uniform on Yale's campus.
    After an English instructor once remarked, ``Flagg, you 
should not wear that uniform to class; it is not conducive to 
learning,'' I decided I had to speak out and do something about 
a situation I did not think was right.
    Trips to Washington, DC, in the summers of 1994 and 1995, 
along with lots of work and help in between, gave rise to the 
passage of the ROTC Campus Access Act, better known today as 
part of the Solomon Amendment.
    I am here today as a concerned citizen who cares deeply 
about the future of our constitutional republic.
    Having worked closely with the legislative team that 
crafted the original language of the Solomon Amendment, I can 
speak to legislative intent. The goal was simple: to renew 
institutional support for the military on campus.
    As the Supreme Court's unanimous ruling on the Solomon 
Amendment reflects, ``In order for a law school and its 
university to receive Federal funding, the law school must 
offer military recruiters the same access to its campus and 
students that it provides to the non-military recruiter 
receiving the most favorable access.''
    Claims that Dean Kagan acted adequately to comply with 
Solomon Amendment are factually false for two primary reasons;
    First, Dean Kagan admitted to breaking the law in September 
2005 in a letter she wrote to the Harvard Law School community. 
To abbreviate for clarity, ``Although the Court's decision 
meant no injunction applied, I reinstated our policy. My hope 
in taking this action was that the Department would choose not 
to enforce the Solomon Amendment.'' As the military has long 
known, hope is no method. In Dean Kagan's case, her hope 
demonstrates a total disregard for the rule of law.
    Second, separate but equal is, quite simply, not equal. 
Full-time students who act as part-time volunteers will never 
be able to compete with Harvard Law's paid full-time career 
services staff and the institutional might it brings to bear.
    As the 2005 letter from Harvard Law School's Veterans 
Association indicated, ``We possess neither the time nor the 
resources to routinely schedule campus rooms or advertise 
extensively for outside organizations, as is the norm for most 
recruiting events.''
    To illustrate this point another way, imagine Dean Kagan 
owned a lunch counter. What she said to the military was, in 
effect, Sure, you are welcome here, but would you be so kind as 
to use the back door by the garbage? You do not mind eating in 
the kitchen, do you?
    To the all but 12 percent of Americans who hold unfavorable 
views of the military, most favorable access means, 
particularly in a post-9/11 environment, that Dean Kagan would 
have invited the military into every Harvard Law classroom each 
semester, personally introduced the recruiters, and encouraged 
every eligible young adult to take the oath to ``support and 
defend the Constitution of the United States against all 
enemies, foreign and domestic.''
    To defend the barriers Dean Kagan erected by saying 
military recruiters did not suffer or military recruiting did 
not suffer completely misses the point. A consistent policy of 
institutional support, namely, ``most favorable access,'' as 
the Solomon Amendment demands, would have unquestionably 
increased the ranks of those interested in serving. Just 
imagine how many more of the school's 1,900 students would have 
answered the Defense Department's call if they were asked as 
routinely as they were by other employers.
    Barriers do indeed prevent all but the most committed from 
serving. I personally would not have joined the Army had my 
father not routinely encouraged me to do so.
    Dean Kagan's unlawful brand of segregation clearly 
estranged the students of Harvard Law School from the military. 
Dean Kagan's actions deem the military not worthy so much as to 
gather up the crumbs under Harvard's table, and all during a 
time of war, after thousands of innocent Americans were 
brazenly murdered on our soil. All the Defense Department 
humbly requested was equal access. Neither Dean Kagan nor 
Harvard is above the law, even though both have acted as though 
they are.
    So what are the implications for Ms. Kagan's fidelity to 
the text of the Constitution and the laws and ability to judge 
impartially, especially when she is presented legal claims that 
do not suit her ideological tastes? What signals do her actions 
at Harvard Law School send?
    Dean Kagan's double-dealing betrays an unprincipled refusal 
to make these choices. Quite simply, it reflects a 
condescension toward American rule of law. A vote to confirm 
Ms. Kagan as a Supreme Court Justice is a vote to harm the 
interests of our military, the American people who 
overwhelmingly support it, and not just now but potentially for 
decades to come.
    Thank you.
    [The prepared statement of Captain Youngblood appears as a 
submission for the record.]
    Chairman Leahy. Thank you very much, Captain Youngblood.
    Captain Pete Hegseth--did I pronounce that correctly, sir?
    Captain Hegseth. Yes.
    Chairman Leahy. He is the Executive Director of Vets for 
Freedom and an infantry officer in the Massachusetts Army 
National Guard and an Iraq war veteran. He received his B.A. 
from Princeton University and is currently pursuing a master's 
degree at Harvard University's John F. Kennedy School of 
Government.
    Is that all correct?
    Captain Hegseth. Yes, sir.
    Chairman Leahy. Thank you. Please go ahead.

STATEMENT OF CAPTAIN PETE HEGSETH, EXECUTIVE DIRECTOR, VETERANS 
                FOR FREEDOM, ARMY NATIONAL GUARD

    Captain Hegseth. Chairman Leahy, Ranking Member Sessions, 
other members of the Committee, thank you for the opportunity 
to be here today. It is a privilege to take part in these 
proceedings.
    My name is Pete Hegseth, and I am the Executive Director of 
Vets for Freedom, an organization of Iraq and Afghanistan 
veterans dedicated to supporting our warfighters, and their 
mission on the battlefield. I received my commission from 
Princeton University in 2003 and have since served two tours 
with the United States Army, the first at Guantanamo Bay, Cuba, 
and second in Iraq with the 101st Airborne Division. I am 
currently an infantry captain, as the Chairman said, with the 
Massachusetts Army National Guard and a graduate student at 
Harvard University. I am at this committee today as a citizen 
and a veteran and do not purport to speak at all on behalf of 
the military.
    I am going to start with the bottom line up front, as we do 
in the Army. We are a Nation at war, a Nation at war with a 
vicious enemy, on multiple fronts. I have seen this enemy 
firsthand, as have a precious few from my generation. The enemy 
we face detests and seeks to destroy our way of life while 
completely ignoring, and exploiting, for that matter, the rule 
of law.
    This context motivates my testimony today. I have got 
serious concerns about Elena Kagan's actions toward the 
military and her willingness to myopically focus on preventing 
the military from having institutional and equal access to top-
notch recruits at a time of war. I find her actions toward 
military recruiters at Harvard unbecoming a civic leader and 
certainly unbefitting a nominee to the United States Supreme 
Court. Ms. Kagan is clearly a capable academic, and the 
President has the right to choose whom he pleases. But in 
replacing the only remaining veteran on the Supreme Court in 
Justice John Paul Stevens, how did we reach this point in this 
country where we are nominating someone who, unapologetically, 
obstructed the military at a time of war? Ms. Kagan chose to 
use her position of authority to impede, rather than empower, 
the warriors who have fought and who have fallen for this 
country.
    I know a number of my fellow veterans will testify to Ms. 
Kagan's personal support of veterans on Harvard's campus. And 
Ms. Kagan has had good things to say about the military, which 
I appreciate. But, for my money, actions always speak louder 
than words. And Ms. Kagan's actions toward recruiters, with 
wars raging overseas, undercut the military's ability to fight 
and win wars, and they trump her rhetorical explanations.
    General David Petraeus calls counterinsurgency ``a thinking 
man's war.'' Defeating our enemy on the battlefield and in the 
courtroom takes the best America has to offer. Yet in 2004, as 
you have heard many times already, Ms. Kagan took the law into 
her own hands, blocking equal access for military recruiters, 
in direct violation of Federal law. Moreover, she encouraged 
students to protest and oppose the presence of military 
recruiters.
    These actions coincided with my deployment to Guantanamo 
Bay, Cuba, itself a legal maze of graduate-level proportions. 
Would not the legal situation there and in the courtrooms of 
Iraq and Afghanistan be better off with participation of 
lawyers of Harvard Law School caliber? And don't we believe our 
best and brightest should be encouraged to serve?
    In response to his critique, Ms. Kagan has repeatedly 
stated that, despite her decision to bar recruiters from the 
Office of Career Services, the number of military recruits 
actually increased during her tenure. Let us be clear about 
that. It increased in spite of Ms. Kagan, not because of her. 
But I ask a more important question: Would that number not have 
been even higher had she actually supported recruiters rather 
than actively opposing them?
    To be fair, I do not begrudge Ms. Kagan's opposition to the 
so-called Don't ask, don't tell legislation; reasonable people 
disagree about this policy. However, her fierce and activist 
opposition to the policy was intellectually dishonest and 
unnecessarily focused on the military.
    In e-mails to students and statements to the press, Ms. 
Kagan slammed, and I quote, ``the military's discriminatory 
recruitment policy.'' Yet as a legal scholar, she knows better 
than that. She knows that the policy she abhors is not the 
military's policy, but a policy enacted by Congress and imposed 
on the military. In fact, after the law was passed, Ms. Kagan 
went to work for the very man who signed ``Don't ask, don't 
tell'' into law--President Clinton. So for her to call it ``the 
military's policy'' is intellectually dishonest, and her 
opposition to military recruiters at Harvard Law School had the 
effect of shooting the messenger.
    Likewise, while Ms. Kagan sought to block full access to 
military recruiters, she welcomed to campus numerous Senators 
and Congressmen who voted for the law she calls ``a moral 
injustice of the first order.'' Additionally, Harvard Law 
School has three academic chairs endowed by money from Saudi 
Arabia, a country where being a homosexual is a capital 
offense. So rather than confront the congressional source of 
the true legislation or take a stance against a country that 
executes homosexuals, Ms. Kagan zeroed in on military 
recruiters for a policy they neither authored nor emphasized.
    In closing, the real moral injustice is granting a lifetime 
appointment to someone who, when it mattered most, treated 
military recruiters like second-class citizens. I urge you to 
consider this as you consider Ms. Kagan.
    Thank you for the opportunity to address this important 
topic.
    [The prepared statement of Captain Hegseth appears as a 
submission for the record.]
    Chairman Leahy. Thank you very much, Captain.
    Thomas Moe is a retired Air Force Colonel and Vietnam 
veteran, served in the Navy Reserve and the Air Force Reserve. 
He flew 85--is that right?--combat missions in Vietnam until he 
was forced to eject over North Vietnam where he spent more than 
5 years as a prisoner of war until he was released during 
Operation Homecoming in 1973. He received his B.A. from Capital 
University and M.A. from the University of Notre Dame.
    Please go ahead, Colonel.

  STATEMENT OF COLONEL THOMAS N. MOE, UNITED STATES AIR FORCE 
                           (RETIRED)

    Colonel Moe. Thank you, Chairman Leahy and Senator Sessions 
and members of the Committee, for the opportunity to testify 
before this Committee.
    I would like to express my concern regarding the nomination 
of Ms. Kagan to the Supreme Court for the following reasons. 
Some of them are referring back to some of the reasons my 
colleagues have mentioned as well.
    Chief among them is that she has demonstrated a strong bias 
against the military, particularly while Dean of the Harvard 
Law School, largely over policies concerning the eligibility of 
homosexuals to serve in the military.
    As we have heard, in 1993 Congress passed and President 
Clinton signed Title 10 U.S.C. Section 654. Among other things, 
the law provided that the administration could omit the 
requirement that persons joining the military make any 
reference to their sexual orientation, a policy that became 
known as ``Don't ask, don't tell.''
    In 1995 Ms. Kagan joined the Clinton administration as 
Associate Counsel, but I know of no stand that she took against 
``Don't ask, don't tell'' during her tenure with Mr. Clinton.
    But when she was appointed Dean of the Harvard Law School 
in 2003, she began to loudly condemn the law and policy, 
calling it ``a profound wrong'' and ``a moral injustice of the 
first order,'' disregarding the fact that the 1993 law was 
approved by strong bipartisan majorities in Congress.
    She also knowingly defied the particular law we have 
already heard about, the Solomon Amendment, which concerns 
military recruitment. As Dean, Ms. Kagan treated military 
recruiters as second-class citizens. She did not allow the 
military to recruit on an equal basis with other agencies, and 
even called on her students to forcefully criticize military 
personnel.
    As we have heard on some occasions, she has expressed 
support for those in uniform, but such superficial gestures 
cannot mitigate her official actions. She apparently was 
encouraged by a ruling in 2004 by the Third Circuit Court of 
Appeals that the Solomon Amendment was likely unconstitutional, 
but this court had suspended its own ruling pending review by 
the U.S. Supreme Court. Nevertheless, in violation of the 
Solomon Amendment, Ms. Kagan continued to restrict military 
recruiters at Harvard Law School.
    In 2005, she escalated from hostile words to legal 
activism, and she joined a friend of the court argument to the 
Supreme Court, claiming that Harvard Law could bar military 
recruiters because it barred all recruiters who discriminated 
against homosexuals. But in 2006, this argument, along with the 
suspended Third Circuit Court ruling, was struck down by the 
Supreme Court unanimously. Even the most liberal-minded 
Justices rejected Ms. Kagan's position. With a stinging rebuke, 
the Court said that her theories were clearly not what Congress 
had in mind. She later acknowledged that her actions were not 
justified, but said that she had acted anyway in the hope that 
the Department of Defense would not enforce the law. The issue 
here is bias, and Ms. Kagan's record reveals the persistent 
bias, at least regarding the military.
    As a citizen, I cannot support the appointment of Justices 
who would pick and choose which law they wished to follow or 
violate a law in hopes that it would not be enforced. As a 
veteran, I am even more troubled that an activist Justice would 
not instead defer to the other branches of Government, 
particularly the Congress, which the Supreme Court has itself 
recognized as more qualified to act on issues concerning the 
military.
    And what evidence is there that Ms. Kagan has shown an 
understanding of the Defense Department's position regarding 
homosexuals in the military? The 1993 law clearly states why 
homosexual activity in the military is harmful to its mission 
while stressing that the military is a specialized society 
subject to special laws that would not apply to the citizenry 
at large. Those who do not understand the special nature of the 
military should not be handed authority to make important 
decisions that affect it.
    And I question whether Ms. Kagan has consistently applied 
her stated principles regarding discrimination against 
homosexuals. Her principles did not seem to come into play in 
2007 when President Clinton, the sponsor of ``Don't ask, don't 
tell'', spoke at Harvard's commencement or, as we have already 
heard, when a member of the Saudi ruling family, a person in a 
position to influence the policy in Saudi Arabia which executes 
homosexuals opened a school on campus and Ms. Kagan did not 
lift her voice against that.
    Last, I would think that a person so opposed to rules 
governing the military as Ms. Kagan would encourage rather than 
hinder participation in the military by her graduates so that 
they may be part of the composition of the military's 
leadership and thus have the opportunity to influence military 
policy.
    It is unfortunate that Ms. Kagan has presumed herself the 
wisdom to demand the military to accept professed homosexuals, 
but in my view, she has neither the experience on which to base 
that wisdom nor the responsibility to deal with the 
consequences of her conviction.
    I thank you again, Chairman, for this opportunity.
    [The prepared statement of Colonel Moe appears as a 
submission for the record.]
    Chairman Leahy. Thank you, Colonel. And, of course, 
yesterday--and now I will be on my time--we put into the record 
a letter from First Lieutenant David Tressler, who is currently 
serving in Afghanistan, who strongly supports Solicitor General 
Kagan. He was at Harvard Law when she was dean. And we will 
have on the next panel Kurt White, who is the President of the 
Harvard Law School Armed Forces. After graduating from West 
Point, Mr. White, served as a platoon leader, an executive 
officer in Iraq where he earned two Bronze Stars in 2004 and 
2006, left active duty in 2007 with the rank of captain, went 
on to serve in the National Guard, currently finishing graduate 
degrees in law and business at Harvard, who supports Solicitor 
General Kagan.
    Mr. Gross, it is nice to have you back to the Committee, 
and I appreciate you following in Ms. Ledbetter's footsteps by 
educating people about why the Supreme Court matters and how 
their decisions in your case need to be overturned by 
legislation. I hope that my friends on the other side will join 
us in passing the Protecting Older Workers Against 
Discrimination Act. We passed the Ledbetter bill with 
bipartisan support, and we will need the same help there. In 
fact, in your written testimony, you state that all Americans 
owe Ms. Ledbetter thanks for helping us overturn an unjust 
decision.
    Ms. Ledbetter, yesterday Senator Klobuchar made a great 
point about women like Elena Kagan who broke the glass ceiling. 
When you started working at Goodyear, how many women managers 
were there?
    Ms. Ledbetter. None to my knowledge. I never met any.
    Chairman Leahy. Do you know how many women were on the 
Supreme Court when your case went before them?
    Ms. Ledbetter. One.
    Chairman Leahy. How do you think women or young girls in 
this country would feel if Solicitor General Kagan is confirmed 
and we have for the first time three women on the nine-member 
Supreme Court?
    Ms. Ledbetter. I think it would be an outstanding 
accomplishment for the people across the Nation, not only the 
women but also their families. And one thing I have heard in 
observing and watching the hearings, all of Elena Kagan's 
responses have been that she would adhere and follow the law, 
not make the law. She understands what her responsibility would 
be as a Supreme Court Justice.
    Chairman Leahy. Is that why you support her?
    Ms. Ledbetter. Yes, sir. Yes, sir.
    Chairman Leahy. Thank you.
    Ms. Ledbetter. I wish the people on the Supreme Court, five 
of those Justices, just one more had adhered to the law in my 
case. Then my outcome would have been different.
    Chairman Leahy. Thank you.
    Ms. Gibbins, you spoke about life and work on the shores of 
Prince William Sound in Alaska. You have dedicated your life to 
doing it, rather gripping stories to hear the personal effect 
on people, the suicides, the demoralized people. All those 
people, as I understand it, like the folks in the gulf, worked 
very hard, played by the rules, did not expect any--expected 
everybody else to play by the rules. In your testimony, you 
touched on the impact of the Exxon case on your community, and 
you are not one of the litigants in it, so you do not have a 
financial interest in this. But you have seen what it has done 
to the people there, just as we are seeing every night on the 
news and every morning in the papers about what it is doing to 
the people down in the gulf.
    Do you think that the Supreme Court ruling in Exxon 
Shipping v. Baker has affected public confidence in our justice 
system? And if so, how?
    Ms. Gibbins. Well, as I mentioned briefly, the impact that 
it had on the people in my community, what they took away from 
it is a sense that there is no justice. And currently I work a 
lot with people in the gulf. We are trying to be very 
supportive of them. And I think there is the same fear.
    And when you look at the mistakes that have been made, the 
human errors, the attention on the profit margin, the missed 
opportunities over and over again to prevent things like this--
and I am also president of the Chamber of Commerce. I believe 
in business, and I believe that business can do the right 
thing. But when the laws are not enforced and the best tool 
that we have to hold corporations accountable, punitive 
damages, is not used in the way that they were intended, then 
people lose faith. And I would have to say that the people in 
my community have lost faith.
    Chairman Leahy. Thank you very much. My time has expired. I 
am going to be putting a letter in the record after, but I will 
yield to Senator Sessions.
    Senator Sessions. Thank you, Mr. Chairman.
    I thank our military witnesses for, with clarity, stating 
the true facts of what happened at Harvard. It was not a little 
bitty matter. It was not a matter that just slid into reality 
and Dean Kagan was caught somehow in the middle of a 
controversy. She was a leader, she was a driving force in the 
effort to remove the military from full and equal access to 
that campus after the Solomon Amendment had been passed and 
that was required.
    Captain Hegseth, were you with General Petraeus in Mosul?
    Captain Hegseth. I was not. I did not have the chance to 
serve under him. No, sir.
    Senator Sessions. I was with the 101st there during that 
time in Mosul. They had the Alabama National Guard attached to 
them, too, at that time.
    But you talked about coming in the back door, having to 
eat--or maybe it was Captain Youngblood--having to dine in the 
kitchen and not sit out front. Do you think just from--both of 
you, you are Yale, you are Harvard, you are Notre Dame. Do you 
feel that that policy, setting aside the impact it may have had 
on recruiting, sent a message of some kind to the veterans and 
to the recruiters who may themselves have come off the 
battlefield to come on that campus?
    Captain Youngblood. Oh, absolutely.
    Senator Sessions. What was that message, Captain?
    Captain Youngblood. That message very clearly is that your 
service to the country and to protect the Constitution is not 
valued by these institutions.
    Senator Sessions. Captain Hegseth.
    Captain Hegseth. It certainly was not a message of support. 
You know, I know she met with veterans on Veterans Day. I know 
she honored them on public occasions. And, you know, that is 
appreciated by veterans. We learned that lesson from Vietnam 
vets who we did not honor. But it is a whole other thing when 
you take actions on their behalf to proactively give them 
access, elevate their service, show fellow classmates that 
indeed entering the military, going to the JAG Corps, and being 
an Army lawyer or an Air Force lawyer is a way to contribute to 
your country just like any other legal defense fund. It is one 
thing to say it. It is another thing to do it. And I think she 
made that very clear.
    Senator Sessions. You being somewhat familiar with the 
Harvard campus, I understand that the speech she made to a 
protest was at the same time that a recruiter was in the next 
building attempting to recruit students. And so she made a 
speech in which she condemned the military policy and spoke out 
in that fashion.
    Do you think that would have been an asset to the recruiter 
in his effort in the next building?
    Captain Hegseth. It is certainly not going to help, sir. 
Also, the fact that it was encouraged that students would sign 
up for time with recruiters who had no interest in joining the 
military to clog the time and clog the rolls so that less 
actual possible recruits would have access. That is something 
Ms. Kagan also is purported to have encouraged.
    Senator Sessions. Well, this veterans group, do you have 
any knowledge of it at Harvard----
    Captain Hegseth. I have been a member of some veterans 
groups. Oftentimes, we sit around and drink beer sometimes, but 
we do not usually bring recruiters on campus, sir.
    Senator Sessions. Well, the veterans group at Harvard, they 
did not have a salary, they did not have an office. They were 
just a group of people that got together on occasion. How do 
you feel--Dean Kagan's testimony here about how the veterans 
association was offered the opportunity to be helpful to the 
recruiters. How do you judge that as a realistic explanation 
for denying them the official ability to utilize the recruiting 
services and office?
    Captain Hegseth. I just do not think there is anyway you 
could possibly say that that is equal access. You are thrusting 
it on students with a full workload like anyone else. They did 
not sign up to bring recruiters on to campus. They do not have 
the resources. They are not being paid. They are not able to 
publicize it. Students oftentimes did not even know that 
recruiters were there. So it is an issue when the Office of 
Career Services--anybody that has been at a university knows 
that all the folks that come in to offer jobs go through the 
Career Services. You read the bulletin or you look on the 
screen to see when they are here, who you can meet with. When 
you do not have access to that, you are not accessing the pool 
of students in any sort of equal way.
    Senator Sessions. Do you agree, Captain Youngblood?
    Captain Youngblood. I absolutely do. In fact, you know, 
much is made over time about the network, you know, the 
networking opportunities going to an Ivy League will provide 
students and be shut out of that, when everyone goes through a 
Career Services Office, in effect prevents people from ever 
considering those careers.
    Senator Sessions. Colonel Moe, thank you for your service. 
Do you have any comments on that subject?
    Colonel Moe. Well, you know, actually the experience I had 
at Notre Dame was in direct contrast to what these gentlemen 
have said for the very opposite reason. Notre Dame, a strictly 
Catholic school, practices the Catholic character of the just 
war, et cetera, has a very, very strong ROTC presence, and as a 
student and later a faculty member and then a researcher at the 
Kroc Peace Institute, I saw very well and discussed very 
heatedly with a number of faculty about the position of the 
military on campus and even issues of war.
    But one of the references I made in my testimony, Senator, 
actually comes from the mouth of Father Ted Hesburgh, by many 
standards certainly not a flaming conservative, who believed 
that one of the main reasons to have a strong ROTC presence at 
Notre Dame, both in the undergraduate and graduate school, was 
that those graduates who go forth in the military and influence 
the military such as they could from their upbringing.
    Senator Sessions. Thank you.
    Chairman Leahy. Thank you. My brother-in-law was a 
teacher--he is a Holy Cross priest, and he was a teacher there 
for some time. I would love to hear more of it. We are trying 
to keep to our strict schedule, and I am going to turn the 
gavel over to Senator Cardin, although the next person to be 
recognized will be Senator Specter. And if anybody feels like 
they are being cutoff, it is, again, because of the 
extraordinary circumstances of starting this at this hour, just 
so all the others who are going to want to testify will have 
the time to, both for and against Solicitor General Kagan. So 
that is why I am--and I know you have been waiting patiently, 
but that is why we are keeping to the time. Thank you.
    Senator Specter. Mr. Chairman, may I yield to Senator 
Durbin and take a turn a little later?
    Chairman Leahy. Certainly. Go ahead, Senator Durbin.
    Senator Durbin. Well, thanks Senator Specter, and thanks to 
the panel for your testimony, all of you.
    I want to especially thank Ms. Ledbetter, Mr. Gross, and 
Ms. Gibbins for putting a face on many of the issues that are 
before the Supreme Court. Our hearings here tend to be so 
general and so technical and so legal that I am sure at the end 
of the day a lot of people think, well, this will never affect 
me. But each one of you has a story to tell about how it 
affected you personally, and I thank you very much for doing 
that.
    Ms. Ledbetter, we met before, and I congratulate you for 
not giving up after losing in the Supreme Court. I was there 
when President Obama signed his first bill, the Lilly Ledbetter 
Fair Pay Act, and I was glad to be part of that.
    Mr. Gross, coming from the Midwest and having worked with 
the Farm Bureau all my life, I am sorry you were the victim of 
age discrimination, and I am sorry this Court, the Supreme 
Court, which is supposed to be a non-activist Court, decided to 
invent a legal theory to deny you recovery. I think that is 
unfortunate.
    Ms. Gibbins, 21 years ago I was up in Prince William Sound, 
right after the spill, and I saw it. And I will never forget it 
as long as I live. And I, too, share your skepticism about some 
of the promises that are made on the corporate side and know 
that we need to have a court system and a Congress that is 
sensitive to the need to think, as you say, and be thoughtful 
in the way we approach some of these environmental issues.
    To the other three witnesses, I apologize for stepping out 
for a moment, but I have read your testimony, and I thank you 
for being here and thank you for your service to our country. 
We all appreciate it very much.
    I would like to note by way of a question two things that 
struck me recently. One is the fact that we all know so many of 
our great veterans of World War II are passing on. Time is 
taking its toll. And I have one Joe Flynn who lives in my home 
town and who was part of the D-Day invasion and the Battle of 
the Bulge. A great old fellow, so proud of his service in World 
War II, and I do not question for a minute what Tom Brokaw 
said, ``The Greatest Generation.'' They served for the duration 
when they decided to enlist in our armed forces.
    But there was also another historic event just last week, 
the 60th anniversary of the beginning of the Korean War, and we 
gathered in Statuary Hall, and one of the first persons to 
speak was Congressman Charlie Rangel of New York. Congressman 
Charlie Rangel was a combat veteran of the Korean War. He had 
enlisted before the Korean War in an army that was segregated. 
And Congressman Rangel happened to be able to serve in Korea in 
combat because of the efforts of President Truman to integrate 
our armed forces.
    I raise that issue because I want to ask one of you, any of 
you, if you think that we can honor the Greatest Generation and 
our military men who gave so much to our country and still look 
back with some dismay that it was a segregated force and it was 
not until the Korean War that our military was truly 
integrated. And if you think that you can--and I believe you 
can--can you understand for a moment how some may have feelings 
about discrimination in our current military against those of a 
different sexual orientation and believe that that 
discrimination should also be noted and people may want to 
speak out on it?
    I invite your comments.
    Captain Hegseth. Senator, I would say that I can understand 
that certain members of our society would feel excluded because 
of a particular policy, and many people have different opinions 
on that policy. My testimony and my issue is the way in which 
Ms. Kagan confronted that policy. She could have done so by 
talking about the wrongs of countries like Saudi Arabia that 
execute homosexuals. She could have taken issue with it by not 
bringing Senators and Congressmen who voted for the law she 
calls ``immoral, wrong, of the first order'' to campus.
    There are many different ways she could have zeroed in on 
that particular policy and instead used the military as the 
focal point to do it when these recruiters, you know, they are 
messengers. They are there to recruit----
    Senator Durbin. But I ask you, you do not disagree with the 
premise, that if you feel that there is discrimination in our 
society and even though you respect the institution, the 
military in World War II, but know there was discrimination, 
that speaking out is not un----
    American or inconsistent with our history, is it?
    Captain Hegseth. I am not calling it un-American, but I 
think you also have to look at it in the context of a post-9/11 
world where we are fighting a real enemy and we need recruits 
and good ones.
    Senator Durbin. I understand that, and I also understand 
the testimony of Solicitor General Kagan, and you have all 
noted and see it differently that during this period of time, 
the recruiters were on campus with veterans organizations and 
they actually increased the number of recruits. Some of you 
said, well, we could have had maybe more if they had done it in 
a different fashion.
    But I think it was clear from the letters we have received 
in this Committee, she is not opposed to veterans. She is not 
opposed to the military. It was a matter of conscience for her 
to speak out. I respect her for that. She might have done it 
differently. We all might do things a little differently. But I 
think in the end there is no question that she has the greatest 
respect for the military and our country, as I have respect for 
your service.
    Thank you.
    Senator Cardin. [Presiding.] Thank you, Senator Durbin.
    Senator Hatch.
    Senator Hatch. Mr. Chairman, I'm just grateful for all 
these witnesses and appreciate their testimony here today. 
Thank you.
    Senator Cardin. Senator Klobuchar.
    Senator Klobuchar. Thank you very much, all of you, and 
thank you especially for your service and everything you've 
done for our country. I really appreciate it.
    We talked a lot about your case during the questions of 
Solicitor General Kagan, Ms. Ledbetter, and I wanted to just go 
through some of that. First of all, could you just go through 
again how you found out, how you had to find out that some of 
your counterparts--your male counterparts were making more 
money than you did and got raises that you didn't get?
    Ms. Ledbetter. Yes. I only learned about the discrepancy in 
my pay after 19 years, and that was with someone leaving me an 
anonymous note, because otherwise I would not have known 
because Goodyear prohibited each one of us from ever discussing 
our pay or we would not work there. So our pay was never 
discussed and we could not find out, and that was the only way 
I had to find out.
    Senator Klobuchar. So you had no way of knowing that other 
workers, men that were getting more money than you, and it kept 
getting worse and worse as the years go by, you didn't know 
that?
    Ms. Ledbetter. No, I did not. I had no way to know.
    Senator Klobuchar. Right. Then you go to court and you win 
an award to say you could make up that money that you'd lost, 
and then you go to the U.S. Supreme Court, and what did they 
tell you in terms of when you were supposed to have found that 
out?
    Ms. Ledbetter. According to the response that Justice Aleto 
wrote, he said that I should have complained after the first 
paycheck that I received that was discriminatory, even though I 
didn't know that and no way to prove it.
    Senator Klobuchar. So I'm just wondering, and I know that 
Justice Ginsburg--and this is something I talked to Solicitor 
General Kagan about this--was I suppose only--you would have 
had to be, like, rifling through the drawers, looking at 
paystubs or asking your fellow employees who much they were 
making. Is that what you were supposed to do?
    Ms. Ledbetter. Well, I was supposed to do that in order to 
find out, and had I done that I would have been fired.
    Senator Klobuchar. Right. So I think one of the reasons 
your case, in addition to the obvious wrongs that were righted 
by the law that was passed in Congress, but I think one of the 
things that interested me about your case was it was just an 
example of you, who never thought you'd end up here in the 
halls of Congress, nor I think did any of the other witnesses 
here, I can see them shaking their heads at the end, wondering 
if it's that fun anyway to be here.
    But what you were--what strikes me most about your case is 
that you just happened to be in this situation. You ended up 
going to the highest court in the land, and I think to me you 
are an example of what I talked about, that these decisions 
have an impact on regular people when the court makes these 
decisions.
    You touched on the fact, through your testimony, that 
sometimes the law isn't always clear, Ms. Ledbetter, and that 
the importance of the court using common sense is very 
important. And do you want to talk a little bit more about why 
you think Solicitor General Kagan, who I know you're here to 
testify for today, why you think she has that common sense?
    Ms. Ledbetter. Because that's what I've heard her say in 
these hearings so far, is that she would adhere to the law and 
not be making the law. It's Congress' job to change laws and 
make new laws. A Supreme Court justice should adhere to the law 
and follow the precedent, and I've heard her say she would 
follow precedent. I heard Senator Specter yesterday comment 
about some of the--two of the last three Supreme Court justices 
that went on the bench have not ruled according to the way they 
testified when they were confirmed.
    Senator Klobuchar. Very good.
    Now, Ms. Gibbins, I was always interested in your case, not 
only because of the horrible wrong that happened there, but 
also actually it was a Minnesota law firm that represented the 
fishermen, the plaintiffs in the case. So I'm somewhat 
familiar. I actually read a book on it called Cleaning Up about 
the case and how long it took, and those kinds of things.
    What do you think we can learn from what happened, the 
delay? I think 8,000 of the plaintiffs died before getting any 
of the awards because of the delay in their case. As you 
mentioned, the verdict was $5 billion slashed down to $500 
million. What are the lessons we can learn in terms of the 
Supreme Court, and also what we should be doing now with the 
oil spill in the Gulf?
    Ms. Gibbins. Have you got a couple of weeks?
    [Laughter.]
    Senator Klobuchar. I have exactly 19 seconds. No, I think 
you can go a little into my time. The Chairman will allow me.
    Senator Cardin. Fifteen seconds.
    Ms. Gibbins. Well, one of the big problems was, after 20 
years, everything was out of context. The strategy that the 
lawyers had for their clients was out of context, the climate 
of the country had changed. One of the things that I think 
concerns me the most is, over that time, the U.S. Chamber of 
Commerce had a really serious influence on the composition of 
the court, and as an environmental activist and as president of 
our local Chamber of Commerce, I support business, but I think 
somewhere along the line we forgot that the backbone of the 
United States is actually small business.
    In terms of what's going on in the Gulf, I think we need to 
look at some of the things that were applied in Alaska, our oil 
response system, our regional Citizens Advisory Councils, and 
those things need to be institutionalized nationwide. I also 
think that it's incredibly important that we institutionalize 
transparency through public participation in the incident 
command system, in the development of plans. Here we have a 
plan for response in the Gulf that--there's nothing there, and 
if citizens can be participating, I think that's the real hope 
of transparency.
    Senator Klobuchar. Thank you very much.
    Thank you, Mr. Chairman.
    Senator Cardin. Thank you very much.
    Senator Kyl.
    Senator Kyl. Thank you, Mr. Chairman. I appreciate all of 
the witnesses' testimony.
    As to the first three, I take from the invitation to have 
them testify a hope that their presence argues for a justice 
who would rule for them; a more results-oriented ploy, I cannot 
imagine. It is precisely the concern I have about the 
President's motivation in nominating Elena Kagan. As to the 
last three, I thank you for your service and your testimony.
    Senator Cardin. Let me thank all of our witnesses. I 
particularly want to thank our three military witnesses for 
their service to our country, and we very much appreciate you 
being here.
    I do want to put in the record a letter that was sent to 
Chairman Leahy today from Zachary Prager, a Lieutenant in the 
Navy, in support of Dean Kagan, who was at Harvard during the 
time in question. Without objection, that will be made part of 
the record.
    [The letter appears as a submission for the record.]
    Senator Cardin. I also want, during my time, to underscore 
the point that I said in my opening statements at Solicitor 
General Kagan's hearing. That is, I wanted Americans to get a 
better understanding of the impact of the Supreme Court on 
their everyday lives. I think this panel has been particularly 
helpful in that regard. It affects students, their decisions. 
It affects, certainly, workers. It affects consumers, and 
clearly affects those who are fighting for our environment.
    I particularly want to thank Lilly Ledbetter and Jack Gross 
and Jennifer Gibbins for putting a face on the issue. We hear 
statistics, we hear numbers, but we really are talking about 
the effect on real people's lives. We know the name Gross and 
we know the name Ledbetter because of Supreme Court decisions, 
but they're real people, as we see here today, who have real 
emotions. Solicitor General Kagan said that she wants every 
American to get a fair shake. It's something that really 
impressed me in her opening comments.
    So I just want to go back just one more time and give you, 
Ms. Ledbetter, Mr. Gross, Ms. Gibbins, a chance to respond as 
to how you felt when you took your case to the court and were 
able to prove discrimination, able to get a jury to give you an 
award, knew that Congress had passed a law against gender 
discrimination, against age discrimination. You had the law on 
your side. Then your case goes to the Supreme Court.
    In one case, Ms. Ledbetter, the court rules against you. In 
the other, Mr. Gross, the court changes the case in order to 
take up basically a different matter. But the results were the 
same: you both were denied your individual justice, but just as 
importantly, the reason you brought the case, is to make it 
clear that gender discrimination and age discrimination have no 
place in America.
    How did you feel the day you learned about the Supreme 
Court decision?
    Ms. Ledbetter. The day I learned, I was very disappointed 
because, as you said, the law had been on my side. It supported 
my case. The Equal Employment office had supported me all the 
way to the Supreme Court. And then those five justices decided 
I should have complained back in the early days when my pay was 
first set, even though I didn't know it and even though I had 
no way to prove it, and even though we were not allowed to 
discuss or ask about our pay.
    It was so hard to understand how they could do that, and 
the precedent had always been in other cases that it would have 
gone in my favor. It was really devastating, because this is 
real people, real lives, and it's not easy to swallow this 
disappointment when they change the law. I felt--and the 
Supreme Court didn't say I had not been discriminated against, 
they just said I waited too long.
    Senator Cardin. Mr. Gross.
    Mr. Gross. A couple of things. During the hearing, Justice 
Suter made the comment that juries are smarter than justices, 
and that kind of rang true. I really felt like the first 
obligation of our court system would be to try to sanctify that 
a jury who heard all of the evidence and saw all of the 
testimony, our citizens, heard the law. I think they were able 
to interpret it; they're pretty bright Iowans. I think the 
discrimination is a little bit like pornography. You may not be 
able to define it clearly, but you know it when you see it. I 
believe the jury did.
    Second, when we got to the hearing and we had presented 
everything that had been briefed, I had personally spent 
$11,000 just in printing costs for the briefs once we got 
there. We got through our argument, the Solicitor General took 
half of our time and made an argument on our behalf.
    And then all of a sudden, we were just blindsided. They 
decided, let's just take off in a new direction, and instead of 
addressing the issue that they had agreed to take, they said 
let's go back and look at the entire context of the ADA and the 
language of it, and essentially they just redefined the law.
    Senator Cardin. Thank you.
    Ms. Gibbins, you've already answered that from your 
community, I think.
    Senator Specter.
    Senator Specter. Thank you, Mr. Chairman.
    Captain Youngblood, I was in ROTC myself. Some will say the 
University of Pennsylvania is elite. You expressed concern 
about difficulties of recruiting on so-called ``elite'' 
campuses. I think ROTC is very important. Just a 20-second 
personal story. I went to summer camp, one of 2,000 cadets, on 
June 25, 1950. It was the day the Korean War started. We were 
in khaki. We thought we'd never go back to college. Most were 
fourth year. But when we finished our training, they sent us 
back to school because they wanted to win the war. I served 
stateside during the Korean War as a lieutenant in the United 
States Air Force.
    And I think the military has to have access to campuses. 
When you deal with the issue of sexual orientation, you're on a 
very sensitive subject. Thinking has evolved on the matter with 
the Supreme Court changing the law of criminality there. I have 
a couple of issues that I'd like you to respond to.
    One issue is whether sexual orientation has any impact on 
the ability to serve, and the second would be whether, even if 
you disagree with Ms. Kagan--and I've disagreed with her on 
quite a few things over the course of the last couple of days, 
and I'm thinking about her nomination very carefully. Would you 
say that this one issue, in the context of her overall career, 
would be a disqualifier? But take up Number one first, about 
sexual preference having any impact on a person's ability to 
serve, man or woman.
    Captain Youngblood. Well, I would say, first off, Senator, 
the issue--and this is something I've argued since I was a 
student in college and this was an issue back in the 1990s. You 
know, so long as someone is willing to put their service to the 
military first, just like everybody in the military has to do, 
mission comes first, I personally don't have a problem with 
that.
    But again, mission has to come first. If something arises 
that disrupts the mission, it doesn't matter what it is, it 
could disrupt the mission. So, you know, Congress sets that 
policy. It's your decision as a Member of Congress so to do. 
You know, someone in the military would just salute and drive 
out smartly.
    Senator Specter. Well, there are a number--many things can 
affect mission. But do you think sexual orientation does?
    Captain Youngblood. Well, again, like I say, if someone's 
willing to put their service first and worry about the mission 
first, to me it's not something that's an issue.
    Senator Specter. And how about the question of one issue 
disqualifying a nominee for the court?
    Captain Youngblood. Well, I think it's not an issue, 
strictly speaking, of don't ask/don't tell here. It's more an 
issue that through her own decision, Dean Kagan, at the Harvard 
Law School, decided to strictly ignore the law. There was no 
injunction from a court that had jurisdiction over Harvard Law 
School. No one issued a statement or enjoined the DoD from 
enforcing the law. As her letter said, which I read into the 
record, she strictly acted hoping that she would be able to not 
have the law enforced, knowing full well that the law was in 
full force and effect.
    So to that, I would say somebody that shows disregard of 
that nature to a Federal law, a law set by this body, is not 
acting in conjunction or in honoring the rule of law, which she 
has been on record saying that she would honor the rule of law, 
so there's a direct contradiction there. But then second, 
especially in a time of war when there are people out fighting 
and dying, we have somebody that is flouting the foundation of 
the rule of law, which is to say our Constitution. So that, I 
do have a serious issue with.
    Senator Specter. Well, thank you for your service, Captain 
Youngblood and Captain Hegseth and Colonel Moe.
    One question for you, Mr. Gross. Your age discrimination 
victory before a jury was reversed by the Supreme Court, which 
as you characterized it, did not follow precedent. And I think 
that precedent is very important. We've had a lot of discussion 
in this room about stare decisis, the fancy Latin phrase, ``to 
follow the law.''
    I've been concerned about, nominees talk about stare 
decisis and then not follow it. I talked extensively about 
Chief Justice Roberts, who said he would follow it, then issued 
a long concurring opinion, really repudiating his testimony. 
One of the concerns I have is what we can do about nominees who 
say one thing here, and cross the street and cite it some other 
way.
    I've been pushing television for a long time as the one 
thing, if people understand what the court does and they decide 
all the cutting-edge questions, there might be some pressure on 
accountability. I'd like your opinion, as a fellow who's been 
to the Supreme Court, probably even watched television, whether 
you think that television would have a good impact generally, 
or if we understood what the court was doing, would have some 
influence on accountability.
    Senator Cardin. Mr. Gross, you can respond quickly. You can 
always supplement this by a written response.
    Mr. Gross. Well, there's actually several parts to that 
question. In general, I agree with a lot of what you're saying. 
I watched a little bit of the hearings. I think there's a 
consensus among everybody, both parties, that we don't want 
activist judges, we want them to follow the law. I've heard it 
time after time. There does seem to be some partisanship that 
enters into that. I don't know if you can find a perfectly 
unpartisan candidate for that spot. I think you have a very 
tough job on your Committee to vet people. That's what we hire 
you to do, and we're assuming that you're going to do the best 
job that you can, being as diplomatic as I can.
    As far as televising things and keeping them open, I think 
that would be good, transparent. But I don't know where else to 
go with that.
    Senator Cardin. Thank you. That was a very concise answer. 
Appreciate it.
    I thank our witnesses for their testimony. That will 
conclude the first panel. We will now call up the second panel.
    Senator Leahy has announced that because we are unable to 
do more than one round, that there may be some questions that 
will be propounded in writing to our different panelists. With 
your cooperation, we might be coming back to you and asking you 
for further information. I believe the record is open until 
noon on Monday for questions to the witnesses.
    Thank you all very much for being here.
    Senator Sessions. Mr. Chairman? I'd just thank all of you. 
I'm sorry I didn't get to talk to the first three witnesses. I 
got carried away with the military issue that I care about.
    Ms. Ledbetter, it's good to see you went past that Goodyear 
plant a lot of times, according to my wife, who grew up in 
Gadsden. And congratulations on moving the Congress to alter 
the law, I think, in a way that will not allow that kind of 
thing to happen.
    Ms. Ledbetter. Thank you, Senator.
    Senator Cardin. Again, we thank all the witnesses for 
making the effort to be here. It's certainly important for this 
process. This is the Supreme Court and it's important we get as 
much information as possible.
    Ms. Ledbetter. Thank you.
    Senator Cardin. If I could ask the witnesses, and the 
witnesses only, to rise in order to take the oath, I would 
appreciate that. Thank you very much.
    [Whereupon, the witnesses were duly sworn.]
    Senator Cardin. Thank you. Please be seated.
    As pointed out in the last panel, we would ask that you 
respect the 5-minute clock. Your entire written statement will 
be placed in our Committee record. We will adhere to a 5-minute 
round for the members. And as I also indicated, we might be 
propounding supplemental questions in writing. If we do, we'd 
ask your courtesy in responding in a timely way.
    Our first witness is Professor Jack Goldsmith. Mr. 
Goldsmith is the Henry L. Shattuck Professor of Law at Harvard 
University. He holds a JD from Yale Law School, a BA and MA 
from Oxford University, a BA from Washington & Lee University.
    He clerked for the Supreme Court Justice Anthony M. 
Kennedy, Court of Appeals Justice J. Harvey Wilkinson, and 
Judge George Aldritch on the Iran-U.S. Claims Tribunal.
    Professor Goldsmith.

  STATEMENT OF JACK GOLDSMITH, HENRY L. SHATTUCK PROFESSOR OF 
                    LAW, HARVARD LAW SCHOOL

    Mr. Goldsmith. Thank you, Mr. Chairman, and thank you to 
the members of the Committee. Thank you for the opportunity to 
comment on the nomination of Elena Kagan to be an Associate 
Justice of the Supreme Court of the United States.
    I have come to know Elena Kagan well since Harvard hired me 
in 2004 during her term as dean. Based on hundreds of 
conversations with her, based on my reading of her scholarship, 
and based on my assessment of her very successful legal career, 
I believe that she will be a truly outstanding Supreme Court 
justice.
    In my written testimony I offered three reasons for this 
conclusion. The first concerns her immense competence, that is, 
her intelligence, her knowledge of the law, and the range of 
her relevant experiences. This point has been ably demonstrated 
by Elena Kagan herself over the past 3 days and I will not 
comment on it further. I will instead focus on the two other 
reasons I think she will be a great justice, her attitude 
toward the law and her temperament.
    First, her attitude toward the law. Elena Kagan's unusual 
seriousness about the law was apparent in the very first 
conversation we ever had in 1994. I'm sure she doesn't remember 
it, but I remember it well. I was an entry-level law professor 
candidate visiting the University of Chicago where Kagan was 
teaching at the time.
    Over dinner, I summarized a paper that I was presenting to 
the faculty the next day on the role of Federal courts in 
deciding foreign relations cases in the absence of guidance 
from Congress. Kagan responded with an avalanche--and I use 
that metaphor advisedly--of difficult questions that pressed me 
to clarify my thesis and that pushed me on its implications for 
matters racing from the conflicts of law, to the Erie doctrine, 
to the meaning of the Commerce Clause.
    It was a truly remarkable performance. I had been in the 
teaching market for many months but I had not encountered 
Kagan's razor-sharp questions, questions that exposed 
weaknesses and inconsistencies in my thesis. Kagan quickly 
grasped my central point, questioned how it fit in with broader 
legal principles.
    Here was someone who took legal doctrine seriously, someone 
who by instinct cared a lot about getting the doctrine and the 
case holdings and the broader legal implications just right, 
and someone who is remarkably knowledgeable about the law and 
unusually adept at legal argument. I will say that she also 
displayed a similar attitude toward the law countless times 
during our years together at Harvard in conversation, and in 
appointment Committee meetings, and in faculty workshops.
    Kagan's view--in my opinion, Elena Kagan views the law with 
an earnest respect to have a reality, to have an autonomy, and 
to have a constraining bite. And while I do not purport to 
speak for fellow conservatives of various stripes, I think this 
quality is one reason why so many prominent conservative 
lawyers who know Elena Kagan well admire and support her 
confirmation. My colleague John Manning, who has known Kagan 
since law school, writes to this Committee that she is 
``careful and reflective in her legal analysis and cares deeply 
about law and legal craft.''
    Former Judge Michael McConnell, now a professor at Stanford 
Law School who has known Kagan for 20 years since they were 
together on the Chicago faculty, writes that ``she has 
demonstrated a fidelity to legal principle, even when it means 
crossing her political and ideological allies.''
    These are extraordinary testaments to Kagan's--these and 
others--and there are other similar testaments from 
conservative lawyers on the record--are an extraordinary 
testament to Kagan's commitment to the integrity of law and 
should count in favor of her confirmation.
    Now I turn to her temperament. And I think she has an ideal 
temperament to be a Supreme Court justice. She has a remarkably 
open mind, she cherishes intellectual debate, and she generally 
considers all sides of an argument before exercising her 
judgment.
    These were some of the qualities that, in my opinion, 
helped make Harvard Law School an intellectually richer and 
intellectually more diverse law school under her deanship. It's 
a little awkward for me to talk about this because I am 
actually held up as a conservative scholar who was hired while 
serving in the Bush administration.
    I'm held up as the example of how open-minded she was. It 
makes it a little awkward for me to talk about this, but I do 
think that her actions as dean, not just in connection with me 
but much more broadly, do demonstrate a commitment to the frank 
and open exchange of ideas and reveal a temperament ideally 
suited for the Supreme Court.
    I don't think she was interested in achieving balance for 
balance's sake. I think she thought that excellence in law 
school required an intellectual environment where every idea 
can flourish. Now, this might seem like an obvious point, but 
in the American Legal Academy, and especially among the most 
elite law schools, it is far from obvious and not at all 
established.
    Much attention has been paid to her hiring of conservative 
scholars, but this is too narrow a focus, for these hires were 
a small feature of a larger commitment to treating everyone and 
all ideas on the merits rather than through an ideological 
lens.
    My time is running short, but I would say it was not just 
the way she treated me and not just the way she treated 
conservatives, but the way she treated everyone. I agree with 
Michael McConnell that these aspects of Kagan's deanship 
``demonstrate qualities of mind and character that are directly 
relevant to being a justice on the Supreme Court, respect for 
opposing argument, fair-mindedness, and willingness to reach 
across ideological divides, independence, and courage to buck 
the norm.
    Thank you.
    [The prepared statement of Professor Goldsmith appears as a 
submission for the record.]
    Senator Kaufman. [Presiding] Thank you, Mr. Goldsmith.
    Curt White is the president of the Harvard Law Armed Forces 
Association and hails from Teliqua, Oklahoma. After graduating 
from West Point, Mr. White served as platoon leader and 
executive officer in Iraq, where he earned two bronze stars in 
2004 and 2006. He left active duty in 2007 with the rank of 
captain and went on to serve in the National Guard. He's 
currently finishing his joint graduate degrees in law and 
business at Harvard.
    Please proceed, Captain White.

 STATEMENT OF CAPTAIN KURT WHITE, PRESIDENT, HARVARD LAW ARMED 
            FORCES ASSOCIATION, ARMY NATIONAL GUARD

    Captain White. Thank you, Mr. Chairman and members of the 
Committee. It's a great honor to be asked to testify at this 
hearing.
    I'm most grateful, however, for the opportunity to help 
dispel some of the untrue and unfair accusations of anti-
military bias that have been leveled against Ms. Elena Kagan, a 
woman who, in my short time of knowing her as the dean of the 
Harvard Law School, went to such great lengths to show her 
respect for, and appreciation of, the military and military 
veterans.
    Rather than spending my time directly addressing the 
policies toward military recruitment at Harvard Law School 
during Ms. Kagan's time as dean, issues which she has spoken to 
and directly addressed herself, I will rather spend my few 
minutes explaining my interactions with Dean Kagan, her 
feelings toward the military, and the pro-military environment 
that she created during her tenure as dean.
    I first heard Ms. Kagan speak in the fall of 2007 as she 
gave the welcoming address to the students of my incoming law 
school class. Sure, she had many eloquent and inspiring words, 
but one of her speech has remained particularly memorable for 
me. As Dean Kagan was ensuring that every student knew what a 
special class they had just joined, she began listing the 
States and countries from which students had come, and then 
began speaking to some of the incredible honors and 
accomplishments of those seated around me.
    As I listened to the descriptions of my classmates, I was 
somewhat surprised that I had been allowed to join this amazing 
group as a student at the Harvard Law School. I was more 
surprised, though, when Dean Kagan pointed out the number of 
military veterans seated in the room among the incoming class 
as a group of students that others should keep their eye out 
for and try to meet during the coming year.
    It was truly a proud moment to be recognized in such a way, 
that the dean of the law school saw military service as 
something so important that she would mention the veterans to 
the entire class on our first day. It made me immediately feel 
welcome and respected in my new environment. I later found out, 
from speaking to veterans in other classes, that Dean Kagan 
made a point of highlighting military members and military 
service each year during her welcoming address.
    Later that year, I had the rare opportunity as a first-year 
law student to spend an evening visiting intimately with the 
dean. Around Veterans Day, Dean Kagan hosted a dinner for 
military veterans and their families. During this dinner she 
spoke very little, other than to express her deep gratitude to 
the current and former service members seated at the table.
    The evening consisted mainly of Dean Kagan asking about our 
military service, listening intently to our stories, and 
expressing her sincere appreciation for our service. It was 
truly moving to have the dean of the law school take an evening 
out of her schedule to show her thanks to our small group of 
veterans. More, she made each of us feel as if she was the one 
who was honored to have the opportunity to dine with us and 
visit with us for the night. This event which Ms. Kagan 
pioneered during her time as dean meant a great deal to the 
veterans at the school and has luckily been continued by her 
successor.
    Also, while Dean Kagan was leading the law school, numerous 
other attempts were made to emphasize the service of the 
military veterans at the school, from articles published on the 
school web site, to highlights of veterans and their stories in 
alumni newsletters.
    During the time I knew her as dean of the Harvard Law 
School, Ms. Kagan's support of the military was clearly 
evident. Over the past 3 years, I've been a part of numerous 
conversations between veterans at the Harvard Law School where 
all have spoken warmly of her graciousness toward the veterans 
since we arrived there.
    It might seem that this would not be a conversation that we 
would need to have with each other on multiple occasions, but 
such was the importance of Dean Kagan's words and actions 
toward us to our overall experience at the law school that it 
was something that we could not help but discuss frequently.
    It is, thus, my honor to have the opportunity to answer 
anti-military accusations made against Ms. Elena Kagan, who 
again did so much to make the experience of myself and my 
fellow veterans what it was, and who did so much to make us 
feel welcome, appreciated, and as she has mentioned earlier in 
her testimony, indeed revered while she was the dean.
    With that I'll conclude my remarks.
    [The prepared statement of Captain White appears as a 
submissions for the record.]
    Senator Kaufman. Thank you, Captain White.
    Professor Robert Clark is the Harvard University 
Distinguished Service Professor and Austin Wakeman Scott 
Professor of Law, and the former dean and professor of law at 
the Harvard Law School.
    He's also a former commercial and corporate lawyer and 
faculty member of the Yale Law School. He received his BA from 
Marinaw College, his Ph.D. from Columbia University, and his JD 
from Harvard Law School.
    Professor Clark.

STATEMENT OF ROBERT C. CLARK, HARVARD UNIVERSITY DISTINGUISHED 
 SERVICE PROFESSOR, AUSTIN WAKEMAN SCOTT PROFESSOR OF LAW, AND 
                FORMER DEAN, HARVARD LAW SCHOOL

    Professor Clark. Thank you, Senator and members of the 
Committee. I support the appointment of Elena Kagan to the 
court and I'd like to offer some perspectives based on my own 
experience as her colleague and her predecessor in the role of 
dean at Harvard Law School.
    I believe her superb performance as dean should be a 
positive factor in your decision-making. Now, I admit that the 
case for Solicitor General Kagan has many parts. First, she has 
demonstrated, I think, to all of you in the last few days, as 
she clearly demonstrated to me personally, she is extremely 
bright. I know this from having taught her and observed her and 
graded her in the mid-'80s and from having studied her 
scholarship in the late 1990s when deciding whether to 
support--which I did--her appointment to our faculty.
    Moreover, she thinks like a lawyer, and I, at least, mean 
this in a good way. She makes sure she understands the law and 
the facts very closely and accurately and precisely and puts 
them together carefully before she draws her conclusions.
    I think that a lawyer who actually does this, as she does, 
is unlikely to get too creative or loose when she makes 
decisions as a judge. She will feel obligated to follow the 
law, not make it up.
    Furthermore, she has relevant experience with the law not 
only in her recent experience as Solicitor General, but in my 
view also in her many years of spectacularly successful 
teaching of constitutional law and administrative law, which 
are very relevant subjects to this position that she's about to 
get, I hope.
    This teaching experience tends to be neglected, I know, 
when people discuss her qualifications for the court, but I 
think it's relevant because she knows legal doctrines inside 
and out in a way that very few practicing lawyers do.
    But I want to stress now her performance as an 
institutional leader and explain why I think the skills and 
attributes she brought to her role as dean and developed while 
dean would benefit her and the court if she's confirmed. I was 
dean for 14 years, a long time, 1989 to 2003, and strongly 
supported Elena Kagan as the choice to be my successor.
    From my viewpoint, once she became dean she did a fantastic 
job of taking positive changes and initiatives that had been 
begun in the 1990s and building on them. She was not one who 
tried to take over and change the paradigm, as so many new 
leaders do, or to take things in an ideological or particular 
direction. She built on what the faculty had come to want to 
do.
    For example--I'll give three examples, if I have time. We 
hired a large number of faculty members, including some top 
scholars from leading schools during her tenure. The number 
went up about two dozen in just 6 years, from about 1981. That 
is, in a law school context, kind of amazing.
    In my view it's a positive indicator because in the case of 
a very complex law school like Harvard with multiple 
constituencies, it says something about the ability of the dean 
to build consensus. The appointments process is relentlessly 
democratic: you need two-thirds of the voting faculty to 
approve an appointment.
    In a strong-willed faculty, which we have, with widely 
varying views about what really counts as good scholarship, you 
need a dean who can understand many different points of view 
and then encourage people to work together. Dean Kagan did this 
successfully. I watched her learn to do it even better as she 
proceeded. She wasn't just political, she actually learned to 
understand and appreciate many different points of view.
    Similarly--this is dealing with another constituency--she 
took over and led a very successful fundraising campaign. In 
the late 1990s, under my guidance the law faculty developed an 
ambitious long-term strategic plan. We then proceeded to get 
university-level approval for a campaign to fund it--not easy--
and I spent a couple of years getting initial gifts and 
commitments. Then in June of 2003, my last month in office, we 
had a so-called kick-off of a public phase of this campaign. I 
announced we had already raised over $170 million in 
commitments and gifts, and gave, standing right next to me the 
about-to-become dean Elena Kagan and her team, the hard task of 
getting that number up to $400 million.
    Well, flash forward five-plus years later, the fall of 
2008. The campaign closed, having greatly exceeded its goal by 
reaching $476 million, which was another record in law school 
fundraising. We had done that already 10 years previously.
    This fundraising success, which is of fundamental 
importance to an institution like Harvard Law School that does 
not depend much on foundation grants or any government grants, 
would not have happened without Elena Kagan's skill in seeing 
other people's perspectives. I can say this from personal 
experience: in order to gain support from 23,000 alumni and 
friends of the school, which the law school did during this 
campaign, its dean had to learn to understand and appreciate 
the viewpoints of many very different people out there who have 
strongly varying attitudes about what the school was doing and 
planning to do. I watched her get better and better at this 
over time, and I heard reports from old alums that I knew 
already. I believe that her experience and success in this role 
will help her do a better job as justice of the court.
    And as with faculty and alumni, so with students. Dean 
Kagan did a superb job of boosting the mood and morale of the 
student body. She did this with gestures great and small, 
everything from an ice skating rink and free coffee----
    Senator Kaufman. Professor, could you wrap it up, please?
    Professor Clark. OK. To substantive revamp of the first-
year curriculum. I could go on listing her other achievements, 
but given the time I won't. I will note that I have an op-ed 
piece from the Wall Street Journal that I'd like to have put in 
the record that deals with the military recruiting issue. 
That's not my theme today. My concluding point is, I think the 
Committee's decision about Solicitor General Kagan ought to be 
positive.
    Yes, we may not--it may happen that as a justice she'll 
sometimes fill in the blanks of received common law in a way 
that some of us don't like, but as--and as history shows it's 
really hard to predict accurately what a future justice will 
do, but I think in this case worrying too much about the 
downside possibilities is to miss the forest for the trees. 
She's an excellent choice for the court and should be 
confirmed.
    [The prepared statement of Professor Clark appears as a 
submission for the record.]
    Senator Kaufman. Thank you, Professor Clark.
    Gregory G. Garre is a partner in the Washington, DC office 
of Latham & Watkins. He served as the 44th Solicitor General of 
the United States under President George W. Bush.
    Prior to his unanimous confirmation as Solicitor General by 
the Senate, Mr. Garre served as principal Deputy Solicitor 
General and then as Acting Solicitor General. She served as a 
law clerk for Chief Justice William H. Rehnquist, and to Judge 
Anthony J. Scalia of the U.S. Court of Appeals for the Third 
Circuit.
    Mr. Garre received his BA from Dartmouth College and JD 
from George Washington University Law School, where he was 
editor-in-chief of the Law Review.
    Mr. Garre.

 STATEMENT OF GREGORY GARRE, PARTNER, LATHAM & WATKINS, FORMER 
             SOLICITOR GENERAL OF THE UNITED STATES

    Mr. Garre. Thank you, Mr. Chairman, Ranking Member 
Sessions, members of the Committee. It's an honor to appear 
before you today.
    I had the great privilege of serving as Solicitor General 
of the United States at the close of the last administration, 
and like all former Solicitors General going back nearly a 
quarter of a century over the course of the Reagan, Bush I, 
Clinton, and Bush II administrations, I'm pleased to support 
the nomination of Solicitor General Kagan to be Associate 
Justice of the Supreme Court. My testimony today is focused on 
how General Kagan's service as Solicitor General will serve her 
well on the Supreme Court.
    Service as a Solicitor General is by no means a necessary, 
or in itself sufficient, qualification to sit on the Supreme 
Court, but the Office of the Solicitor General offers a 
valuable training ground for service on the court. In fact, the 
Solicitor General is sometimes referred to as the tenth 
justice, although as many former Solicitors General would say, 
and I can attest, never by the justices themselves.
    The Solicitor General is enmeshed in virtually all aspects 
of the court's business. She and her lawyers argue in about 
two-thirds of the cases appearing before the court each term. 
She personally argues the most important and usually most 
contentious cases before the Supreme Court each term, 
formulating and advancing the positions that serve the best 
interests of her client, the government.
    By all accounts, General Kagan has served the government 
well before the Supreme Court. Importantly, she managed the 
challenging transition from one administration to the next, 
with the best interests of the Solicitor General's Office and 
the United States in mind, and minimizing changing positions 
before the court.
    One vitally important area where the government's positions 
have remained essentially unchanged is in litigation involving 
the war on terror. General Kagan has successfully briefed and 
argued many significant cases in this area of law, including 
the decision in the case Holder v. Humanitarian Law Project, in 
which she successfully defended the constitutionality of the 
material support statute before the Supreme Court this term, as 
well as other cases involved in the handling of wartime 
detainees.
    It is not possible to work on these cases without gaining a 
deep appreciation for the national security challenges facing 
this country, and for the men and women who confront these 
challenges in the armed forces on a daily basis. I believe this 
experience will serve Solicitor General Kagan well.
    It is also significant that General Kagan has earned the 
confidence, trust, and admiration of the enormously talented 
career lawyers in the Office of the Solicitor General. It's 
hard for me to think of a higher compliment when it comes to 
her service as Solicitor General, nor better indication that 
she possesses the intellect, fair-mindedness, and dedication to 
duty that Americans expect in a justice of the Supreme Court.
    Now, it's true that General Kagan lacks judicial 
experience, but history shows that prior judicial experience is 
by no means a prerequisite to distinguished service on the 
Supreme Court, especially for someone like General Kagan with a 
varied background in the law and numerous accomplishments when 
she goes on the court.
    Some 40 individuals have joined the Supreme Court without 
prior judicial experience. I had the great privilege to clerk 
for one of them, Chief Justice William Rehnquist, and I am 
confident that his lack of prior judicial service in no way 
impeded his enormous accomplishments on the court.
    The Constitution grants the President broad leeway in 
determining how to carry out the enormously important 
responsibility of choosing a justice for the Supreme Court. One 
can hold different views on the important legal issues facing 
the country and still conclude that General Kagan is well-
qualified to serve on the Supreme Court. Like my predecessors 
as Solicitor General going back over the course of the past 
four administrations, I support Solicitor General Kagan's 
nomination to be an Associate Justice, and I hope that this 
Committee will do so, too.
    Thank you.
    [The prepared statement of Mr. Garre appears as a 
submission for the record.]
    Senator Kaufman. Thank you, Mr. Garre.
    Ronald Rotunda is the Doy & Dee Henley Chair and 
Distinguished Professor of Jurisprudence at Chapman University 
School of Law. Previously, he was professor at George Mason 
University School of Law and the University of Illinois School 
of Law. He received his BA from Harvard College and his JD from 
Harvard Law School. He subsequently clerked for Judge Walter 
Mansfield in the Second Circuit Court of Appeals.
    Professor Rotunda.

  STATEMENT OF RONALD ROTUNDA, THE DOY & DEE HENLEY CHAIR AND 
 DISTINGUISHED PROFESSOR OF JURISPRUDENCE, CHAPMAN UNIVERSITY 
                         SCHOOL OF LAW

    Professor Rotunda. Thank you very much. If you have any 
questions, speak up. My tie is kind of loud, so it's hard for 
me to hear.
    It's been 40 years since a Solicitor General has been 
nominated to the Supreme Court, since the late great Thurgood 
Marshall, the grandson of a slave. Since then, among other 
things, the law has changed. There's now a special law dealing 
with such situations, 455 U.S. Code--that is, 28 U.S.C.A. 
Section 455(b)(3).
    Basically it provides that if the justice has served in 
government employment, in such capacity participated--I'm 
paraphrasing, now--as an advisor concerning the proceeding or 
expressed an opinion concerning the merits of the particular 
case or controversy, she must disqualify herself.
    That's augmented by Section 455(a) that says you should 
disqualify yourself if the impartiality might reasonably be 
questioned. The Senate was, I think, pretty serious about this 
law in the House because they provided, in Section 455(e), that 
the parties cannot waive this particular disqualification, the 
justice must disqualify herself. Congress enacted the law in 
response to a case called Laird v. Tatum in 1972.
    The respondents in Laird moved to disqualify the new 
Justice Rehnquist because he had testified on a particular 
legal issue relating to this case when he was at the Justice 
Department and expressed a statement about the merits of a 
case. He wasn't a lawyer on the brief. He wasn't even in the 
Solicitor General's Office, he was Office of Legal Counsel.
    Justice Rehnquist, in his opinion, acknowledged--he said 
they're correct in stating that during the course of my 
testimony and on other occasions I expressed an understanding 
of the law, as established by the decided cases, that was 
contrary to the position that the respondents took, but he 
refused to disqualify himself. Under the law at the time, I 
think that was correct. So people were upset with that, so they 
changed the law.
    Now they had this much broader language. If they 
participated not simply as counsel but as an advisor, whether 
his opinions are public or private, whether they're oral or 
written, if he's expressed an opinion concerning the merits of 
a particular case or controversy, he must disqualify himself. 
There are very few cases interpreting this, but those that do 
exist are fairly broad.
    First of all, it's clear under the statute this applies to 
U.S. Supreme Court justices, not just the others. So Solicitor 
General Kagan, if she's on the court, will obviously disqualify 
herself in all cases in which she's counsel of record, but it 
doesn't matter that she's no longer counsel of record, that the 
Deputy Solicitor General has taken over. She also has to recuse 
herself if she was an advisor concerning the proceeding, that 
is, gave advice about the particular proceeding or expressed an 
opinion concerning the merits of a particular case or 
controversy.
    The statute defines proceeding very broadly to include pre-
trial matters. The Supreme Court web page acknowledges this. It 
says that if you've earlier been involved in the case as a 
lawyer you must disqualify yourself, whether or not you're on 
the record. The pre-trial--that is, all stages of litigation, 
including the pre-trial.
    One of the few cases interpreting the section is United 
States v. Iron--in 1994. It involved a U.S. Attorney who became 
a district judge. He was U.S. Attorney at the time of an 
investigation before there was an indictment. It eventually led 
to indictment and a criminal trial.
    The judge was not personally involved in the investigation, 
it simply occurred under his watch. The Ninth Circuit said you 
have to disqualify yourself. The Ninth Circuit acknowledged he 
wasn't personally involved, but said it imputes to the U.S. 
Attorney the knowledge and acts of his assistants. Now, that 
would be everybody, of course, I think, in the Solicitor 
General's Office.
    Several years ago under the Bush administration, the 
Solicitor General's Office coordinated and had advice on many, 
perhaps all, of the detainee cases then in the lower courts. I 
don't know what's done now, but if the keep the same procedure 
she would have to disqualify herself in all of the detainee 
cases, even though they're not yet at the appellate level. 
Newspapers have reported that she gave oral advice and had 
input into briefs filed in the Arizona immigration case.
    If that's true--I don't know, we'll ask her--she should 
disqualify herself if that case ever comes to the Supreme 
Court. If the administration asked her advice on the 
constitutionality of proposed legislation in connection with 
contemplating proceeding, either where the United States would 
be plaintiff or defendant, if you have a particular proceeding, 
a particular thing in mind, she'd have to disqualify herself.
    Now, she's only been Solicitor General for, what, less than 
2 years. I don't think there will be a lot of cases like this. 
I would think within the next year or two she would--this 
qualification would end. But until that time, in cases 
involving the United States, she should disqualify herself.
    Thank you very much.
    [The prepared statement of Professor Rotunda appears as a 
submission for the record.]
    Senator Kaufman. Thank you, Professor Rotunda.
    Robert Alt is the Senior Legal Fellow and Deputy Director 
of the Center for Legal and Judicial Studies at The Heritage 
Foundation. He's also a fellow in Legal and International 
Affairs of the John M. Ashbruck Center for Public Affairs at 
Ashland University in Ohio. He received his bachelor's degree 
from al Souza Pacific University and his JD from the University 
of Chicago Law School.
    Professor Alt.

  STATEMENT OF ROBERT ALT, SENIOR FELLOW AND DEPUTY DIRECTOR, 
 CENTER FOR LEGAL AND JUDICIAL STUDIES, THE HERITAGE FOUNDATION

    Mr. Alt. Thank you, Mr. Chairman and Ranking Member 
Sessions, for inviting me to testify.
    As these hearings open, numerous members of this Committee 
lamented what was variously described as the judicial activism 
or corporativism of the Roberts court. Indeed, TV viewers who 
tuned in late could be excused if they believed they were 
watching re-runs of the confirmation hearings for John Roberts 
or Samuel Aleto, given the frequent references to those 
justices.
    Singled out for special condemnation were the Roberts 
court's decisions in Citizens United and Ledbetter. The 
complaints raised closely tracked those of liberal activists 
who issued reports which both highlighted their grievances and 
served as talking points on these cases and on the Roberts 
courts in anticipation of these hearings.
    The story of a conservative activist pro-corporatist 
Roberts court may sound compelling at first blush, particularly 
with its repetition and regrettable distortion of the cases 
involved, but it is just a story, and a fictional one at that.
    Take, for example, the case of Citizens United. In his 
State of the Union Address, the President chided the Supreme 
Court for reversing a century of law. Multiple members of this 
Committee complained at the beginning of this hearing about the 
Roberts court overturning longstanding precedent. But the 
suggestion that the court overturned a century of precedent 
just isn't true.
    The leading case in this area of campaign finance law is 
Buckley v. Vallejo. In that case, and time and time again 
thereafter, the court affirmed the First Amendment free speech 
rights of individuals, groups, and incorporated groups making 
independent expenditures. Since Buckley, the only interest that 
the court has accepted as being sufficient to justify 
governmental regulations closely drawn is preventing the actual 
corruption or the appearance of corruption. This has been the 
consistent standard applied by the court, including in cases in 
which the free speech rights of corporations were recognized.
    There was just one outlier case, Austin v. Chamber of 
Commerce, in which the court, for the first and only time, 
embraced a kind of speech equalization theory to permit 
restrictions on corporate independent expenditures in an 
opinion which ignored well-established precedent.
    But this case was the jurisprudential equivalent of an 
orphaned eunuch: it had no jurisprudential parents and it bore 
no meaningful jurisprudential children. Even after Austin, the 
court returned to rejecting rationales for government 
regulation outside of preventing actual corruption or the 
appearance of corruption.
    The court in Citizens United overturned precedent, yes, but 
it did not overturn a 100-year-old precedent that was well-
revered or established. It overturned a 20-year-old case that 
was an outlier in the law and that stood as contrary to the 
leading case on the topic and virtually every other case on the 
topic decided and it did so in the service of a well-grounded 
approach to the Constitution, one which recognizes that 
political speech is really the core speech protected by the 
First Amendment.
    Contrary to the misguided claims bandied about, this case 
is not a sin against stare decisis, but rather comported with 
the proper understanding of that term by adhering to the 
multiple precedents which Austin itself ignored and abrogated.
    Or take Ledbetter. President Obama said that Ledbetter 
``didn't know that she was getting paid less. When she 
discovered it, she immediately filed suit to get back pay, and 
the suggestion was somehow that she should have filed suit 
earlier.''
    Just this week, Senator Feinstein said that she found it 
shocking that ``the court would hold to a technicality when a 
woman couldn't possibly have known, during the time that the 
tolling was taking place, that she was disadvantaged, and when 
she learned she was disadvantaged it was too late.''
    But it just isn't true. As the court noted, Ledbetter 
conceded in her own deposition, which I have right here, that 
she knew about the alleged pay inequity more than 5 years 
before she filed suit. Her novel arguments were necessary in 
order to evade the statute of limitations that were imposed by 
Congress, not by the courts.
    This raises a very important issue. In many of the cases 
that have been used by liberal activists and most recently by 
members of this Committee to allege activism by the court, the 
crux of the argument is that the person objecting does not like 
the policy outcome.
    But the outcomes in these cases were dictated by policies 
of Congress and dutifully carried out by the courts. If 
Congress disagrees with its own policy it can change it, as it 
did in the wake of the Ledbetter case. Far better this than 
courts undermining the rules that Congress has drafted in order 
to impose its own view of what policy is. Now, that would be 
activism.
    There is no need to make a papier mache Mephistopheles of 
activism. There's real activism in the world. There are even 
examples of real pro-business activism decisions by the Supreme 
Court, such as its decision in BMW v. Gore, in which Justice 
Stevens found in the Due Process Clause, probably hiding behind 
some emanations and penumbra, a constitutional cap on punitive 
damages, a position rejected by conservative justices who 
sought to apply the law according to its original meaning.
    But the claims of a concerted conservative pro-corporatist 
Supreme Court, while good political talking points and an able 
diversion from questions about Dean Kagan's failure to adhere 
to the requirements of Federal law in the Solomon Act, are just 
not true.
    Thank you. I welcome your questions.
    [The prepared statement of Mr. Alt appears as a submission 
for the record.]
    Senator Kaufman. Thank you, Mr. Alt.
    Ed Whelan is the president of the Ethics and Public Policy 
Center. He served as principal Deputy Assistant Attorney 
General for the Office of Legal Counsel under President George 
W. Bush. He clerked for Judge J. Clifford Wallace in the U.S. 
Court of Appeals for the Ninth Circuit, and for Supreme Court 
Justice Antonin Scalia. Mr. Whelan received his undergraduate 
degree from Harvard University, his JD from Harvard Law School.
    Mr. Whelan.

  STATEMENT OF ED WHELAN, PRESIDENT, ETHICS AND PUBLIC POLICY 
                             CENTER

    Mr. Whelan. Thank you, Senator Kaufman. Thank you, Senator 
Sessions.
    Various supporters of Elena Kagan's nomination have sought 
to bolster their position by flinging assertions that the 
Supreme Court, under Chief Justice Roberts, has engaged in 
conservative judicial activism. Those assertions are badly 
confused. A sober assessment of the current reality and future 
risk of judicial activism provides compelling reason to vote 
against the Kagan nomination.
    Since the Warren court's heydays in the 1960s, the court 
has entrenched the Left's agenda and usurped the realm of 
representative government through a series of activist rulings 
on a broad range of matters, including abortion, secularism, 
obscenity and pornography, gay rights, criminal procedure, 
national security, and the death penalty. These monuments of 
liberal judicial activism have deeply transformed--and I would 
submit degraded--American politics, institutions, and culture.
    Even worse, new edifices of Leftist ambition are in the 
works. Elena Kagan is a predictable vote, quite possibly the 
decisive fifth vote, in favor of inventing a Federal 
constitutional right to same-sex marriage. Reasonable people 
have different views on whether and how public policy should 
accommodate same-sex relationships, and that's a matter that's 
being worked out through the democratic processes.
    But the court's invention of a constitutional right would 
not only radically redefine the central social institutions of 
marriage and the family for the entire Nation, it also branded 
as bigots and inevitably would coerce and penalize all those 
Americans who understand the essence of marriage as a union of 
a man and a woman.
    Ms. Kagan would also provide the fifth vote to continue the 
court's unprincipled practice of selectively relying on foreign 
law to alter the meaning of the Constitution, one part of a 
broader, transnationalist agenda that would displace the 
constitutional processes of representative government and 
dilute cherished constitutional rights to free speech and 
religious liberty.
    By contrast to the decades-long reality and ongoing threat 
of liberal judicial activist rulings, the overall picture of 
supposed conservative judicial activism pales into virtual 
nothingness. Let's consider a remarkable colloquy that took 
place just last week on the Senate floor among three Senate 
Democrats, all members of this Committee, though I see that 
unfortunately none of them is able to be here right now.
    Each of the three Senators complained about the supposed 
conservative activism of the Roberts court, each offered a 
supposedly compelling example of that activism. Senator Cardin 
gave as his example of judicial activism the Supreme Court's 
ruling in Ledbetter. In that case, the court majority ruled 
that the time period for filing a charge of employment 
discrimination with the EEOC begins when the discriminatory act 
occurs and that it isn't retriggered by later non-
discriminatory acts. That ruling flowed directly from four 
Supreme Court precedents over the previous three decades. I'm 
quite sure that Mr. Garre, who signed the brief in that case 
for the government, will attest and argue for the exact 
position the Supreme Court adopted--will attest to that.
    The court in Ledbetter expressly left open the question 
``whether Title 7 suits are amenable to a discovery rule, 
whether, that is, in those instances in which the employer was 
not aware that she'd been discriminated against, the charging 
period would instead run from the time that she discovers the 
discrimination.''
    But here's what Senator Cardin had to say about the 
Ledbetter ruling: ``This defies logic. How can a person bring a 
claim when they don't know they're being discriminated against? 
It makes no sense.''
    In short, Senator Cardin's vehement denunciation of the 
Ledbetter ruling rests on his simply misreading the case. Three 
years after the court's ruling in Ledbetter, Senator Cardin 
thought that the court had rejected applying a discovery rule 
to the charging period in Title 7 suits. He also evidently 
didn't understand that Mrs. Ledbetter had waited more than 5 
years after she learned of the discrimination to file her EEOC 
charge.
    As respected legal analyst Stuart Taylor has written, 
President Obama and other Democrats were able to make the 
court's ruling against Ledbetter seem outrageous only by 
systematically distorting the undisputed facts.
    Next in the Senate colloquy was Senator Whitehouse. His 
showcase ruling was a 2008 case in which the court ruled, by a 
5:3 vote, that punitive damage is awarded against Exxon in 
connection with the Exxon-Valdez oil spill was excessive as a 
matter of maritime common law.
    Senator Whitehouse's discussion of the case suffers from a 
few unfortunate omissions. First, the author of the majority 
opinion that he decries was the liberal Justice Suter. Second, 
Justice Ginsburg, in dissent, describes Suter's opinion as 
``well-stated and comprehensive,'' and called the case ``a 
close one.''
    Third, Senator Whitehouse leaves the impression that the 
court's general review of punitive damages awards divides 
justice along ideological lines, but in fact Justices Scalia 
and Thomas are the strongest opponents of the position that the 
Constitution imposes general substantive limits upon punitive 
damages.
    I see that my time is running out. I'd be happy to address 
any questions on the arbitration case that Senator Franken had 
so much to say about, inaccurately, during the confirmation 
hearing. But let me conclude by simply noting that it's 
entirely proper that Supreme Court decisions be subjected to 
careful scrutiny and, where appropriate, vigorous criticism.
    But as the colloquy I've discussed and detailed more 
extensively in my written comments illustrates, so many of the 
criticisms of the Roberts court for supposedly engaging in 
conservative judicial activism are of dismal quality and invite 
the suspicion that they're motivated by crude political 
considerations. Genuine concerns about judicial activism cut 
strongly against the Kagan nomination.
    Thank you.
    [The prepared statement of Mr. Whelan appears as a 
submissions for the record.]
    Senator Kaufman. Thank you, Mr. Whelan.
    Stephen Presser is the Raoul Berger Professor of Legal 
History at Northwestern University School of Law, and holds a 
joint appointment at Northwest's Kellogg School of Management. 
He's a graduate of Harvard College and Harvard Law School. 
Following graduation, he served as a law clerk for Judge Malcom 
R. Willkey of the Court of Appeals for the DC Circuit.
    Professor Presser.

 STATEMENT OF STEPHEN PRESSER, RAOUL BERGER PROFESSOR OF LEGAL 
         HISTORY, NORTHWESTERN UNIVERSITY SCHOOL OF LAW

    Professor Presser. Thank you, Mr. Chairman. I've been asked 
to address the propriety of a Supreme Court justice's turning 
to international or foreign authority in order to interpret the 
Constitution of the United States, a point to which Mr. Whelan 
alluded.
    This question is really part of a broader problem, which is 
what a Justice is supposed to do when a Justice explicates the 
meaning of constitutional provisions. Here, we should return to 
first principles, and in particular return to the most 
important statement on judicial review, that offered by 
Alexander Hamilton in Federalist `78, quoting the Baron de 
Montesquieu, to the effect that ``there can be no liberty when 
judicial function of government is not separated from the 
legislative.''
    To put it in the vernacular--and we talked about this--it's 
the job of justices to judge, not to make law. In the past few 
years we've seen several instances of justices turning to 
international or foreign law to make American constitutional 
law. Thus, Justice Kennedy, turning to the law of the European 
community, found support for his view, departing clearly from 
prior precedent, that consensual homosexual acts could not be 
criminally punished.
    In a similar manner, recent Supreme Court decisions, 
relying in part on European and other international authority, 
have decided that it is unconstitutional to apply the death 
penalty to minors and that it is unconstitutional to apply the 
death penalty to persons suffering from mental retardation.
    Now, the results in all of these cases might be wise social 
policy, but they all represent really legislative acts by the 
court. In America, where the people are supposed to be 
sovereign, changes in such social policies are supposed to be 
for the popular organ, the legislature, or for the ultimate 
popular organ in action, amending the Constitution.
    Turning to international or foreign authority then as a 
means of reworking constitutional provisions or overturning 
prior precedents betrays the nature of our Federal system and 
flies in the face of the rule of law. It should be acknowledged 
of course that, from the beginning of our history, Federal 
judges and Supreme Court Justices have used international 
authority in order to reach judicial decisions, and indeed even 
to aid in the interpretation of provisions of the United States 
Constitution. But there's a profound difference between this 
use of international law and that use of Justice Kennedy's 
referred to earlier.
    In the early years of our Republic and subsequently, judges 
and justices have quite properly sought to understand and apply 
the Law of Nations, a body of super-constitutional principles 
that apply to every nation and that have been the subject of 
work by international scholars for hundreds of years.
    But this recourse to the ancient Law of Nations, this 
traditional recourse to international law, is very different 
from turning to recent international or foreign jurisprudence 
to implement policies and rules, very different from those 
previously prevailing. One is a longstanding legitimate use of 
international authority, the other is a usurpation of the 
sovereignty of the people.
    As you members of the Senate examine the qualifications of 
General Kagan for this awesomely responsible position, you must 
ask yourselves whether she is a person who believes that it's 
appropriate to turn to international or foreign authority to 
alter the meaning of the Federal Constitution.
    There are some troubling comments on this issue made by 
then-Dean Kagan about 2 years ago when she was introducing 
Justice Kennedy at Harvard. Dean Kagan praised Kennedy as a 
jurist who addressed constitutional questions from an 
independent perspective and as one who understood that 
questions of constitutional interpretation had to be made 
pursuant to a realization that the United States is part of an 
international community.
    Dean Kagan observed that Justice Kennedy has emerged as a 
fiercely independent voice on cases involving all manners of 
legal issues. Further, Dean Kagan remarked that ``I would point 
to Justice Kennedy's unique and evolving vision of law. Far 
from swinging between positions that are defined by others,'' 
she said, ``Justice Kennedy consistently charts his own 
course.'' It seems very likely to me that, in her words to 
introduce Justice Kennedy then, Dean Kagan laid out her own 
jurisprudential philosophy.
    Her praise of Justice Kennedy's jurisprudence and his 
independence could certainly be interpreted as Ms. Kagan is 
suggesting, both that it was appropriate for Justices to 
formulate their own notions of what the Constitution should 
mean, and that it was appropriate for Justices to change the 
meaning of the Constitution by reference to emerging 
international norms and policies. Both of these ideas are not 
what a Justice is supposed to do, and I do believe it is your 
task to discover if that is in fact what General Kagan 
believes. If she does, I think you have cause to hesitate 
before voting to confirm her as a justice of the Supreme Court.
    In a country such as ours, governed by the rule of law, 
it's not the job of a judge or justice to have a unique and 
evolving vision of law or to chart his own or her own course. 
It is, to the best of his or her ability, to determine what the 
law is and then to follow it. Before you vote to confirm a 
Justice Kagan, you must be sure that she understands that.
    Thank you.
    [The prepared statement of Professor Presser appears as a 
submission for the record.]
    Senator Kaufman. Thank you, Professor Presser.
    I'm to start with the round, 5 minutes each. I'll start 
with me and then Ranking Member Sessions, and so on.
    Professor Goldsmith, in your testimony you spoke briefly 
about your view of the relevance of prior judicial experience 
to serve on the Supreme Court. Can you elaborate on that, and 
also on whether there might be a down side to having the entire 
court come from an appellate court background?
    Mr. Goldsmith. Thank you, Senator. In my written testimony 
I stated that I thought it was irrelevant that she had no prior 
judicial--that Elena Kagan had no prior judicial experience, 
and I stated, as Greg Garre did, that many of our most 
distinguished Justices did not have--Chief Justice John 
Marshall, Chief Justice William Rehnquist, Chief Justice Earl 
Warren, and I could go on and on. I think Greg said there were 
65. I don't have a particular view about whether it's a good or 
bad thing to have had prior appellate experience.
    Senator Kaufman. Thank you.
    Captain White, let me begin by recognizing your service to 
the country as a platoon leader and--your service to us all, 
and we thank you for it.
    The testimony this morning that General Kagan was welcoming 
and accommodating to military veterans. Can you tell us a 
little bit more about that?
    Captain White. So, during my time there--I say it really 
started on my first day with me. I think for most of the 
veterans I have spoken to, we all went to--we all went into 
Harvard with some bit of trepidation, going to an Ivy League 
school which traditionally, I think, don't have the reputation 
of being as supportive of the military as maybe some other 
institutions in the country.
    So it was really wonderful on that first day to be 
recognized for our service in front of our classmates and for 
that to be pointed out and for then Dean Kagan to show her 
gratitude toward us. So that was really, I guess, what started 
it. And then I think after that being there while articles were 
published in the school newspaper as well as on the school 
website, highlighting veterans and their stories, was something 
that just really went toward creating an environment that 
showed that even whatever the policies were regarding military 
recruiting in the Office of Career Services it was an 
administration headed by Dean Kagan that was very supportive of 
the military in general and very much appreciated the service 
of the veterans that were there at the law school.
    Senator Kaufman. Thank you.
    Professor Clark, you preceded Dean Kagan as dean of the 
school. Can you give us a brief description of the chronology 
of the law school's interaction with military recruiters in 
connection with the Solomon Amendment?
    Mr. Clark. Yes. Well, as you know the law school adopted 
its nondiscrimination policy rule that said that each person 
that wanted to recruit and use the OF COURSE had to sign the 
statement way back in 1979, long before I became dean. After 
the don't ask, don't tell policy emerged, the practice 
developed that the military recruiters couldn't sign in, they 
couldn't use OF COURSE, but we quickly enlisted the veterans 
students association as a vehicle for getting military 
recruiters on campus. And the idea there was fairly simple, but 
it is possible to express disagreement with a policy while 
still showing respect and appreciation for the military.
    The Solomon Amendment came out in 1996 and in 1998 we got 
an inquiry from, I think it was the Air Force asking us to 
explain why we thought we had complied with the regulations 
under that. We sent them a letter and they said, ``this seems 
OK.'' And it was like that until about December 2001, not 
surprisingly a few months after 9-11 when perhaps with new 
members or perhaps because of the new environment we got 
another letter saying, we no longer see how this constitutes 
the requisite access what your practice is there and we're 
going to recommend to the Department of Defense that the 
funding be cut.
    So I consulted at great length with the president of 
Harvard, Larry Summers, and the general counsel and with 
student groups of all sorts and faculty members on the 
placement committee and we tried to respond to that letter. 
They were not satisfied and cut it short, I guess, and in July 
2002 we said, OK, we'll let them use the OF COURSE and then 
issued a statement to the student body in August explaining the 
history and what was going on and said, you're still free to 
express your views on the don't ask, don't tell policy, but 
this is the way it's going to be. And so that is the practice 
that she took over.
    And, in effect, what she did after the Third Circuit 
opinion was to simply revert back to the old pattern which had 
existed for, I don't know, a very long time and seemed to work 
while the case was on appeal to the Supreme Court. But changed 
when she got the msg from that Department of Defense that 
despite all this she was not going to--they were not--they were 
going to try to cutoff Harvard's funding.
    And as my letter to the Wall Street Journal--my op-ed 
pointed out, this was really a matter of law school expressing 
a policy about discrimination. We're a law school, after all. 
And we did not feel it was our--I did not feel it was our right 
to put the whole university at risk of funding, you know, by 
maintaining a policy. Especially, you know, it didn't matter at 
all to the law school, but it mattered enormously to the 
medical school and the school of public health which got a lot 
of funding from the various government departments that were 
covered in the Solomon Amendment.
    Senator Kaufman. Thank you, Professor Clark.
    Ranking Member Sessions.
    Senator Sessions. Thank you, Mr. Chairman.
    A good place for a professor of law to be who is not a 
lawyer.
    Mr. Clark. Thank you.
    Senator Sessions. Your remarkable ascendency here.
    Mr. Goldsmith, do you consider yourself a conservative?
    Mr. Goldsmith. Yes, I do.
    Senator Sessions. I felt your book on terrorism was a sea 
or an island of insanity maybe and a sea of some hysteria 
around. And I have quoted from it a number of times in a debate 
over how to handle these issues and I respect you for it. But 
let me just ask you this, I believe Manning and Mule were hired 
with you by Dean Kagan?
    Mr. Goldsmith. We were all hired within a few years, yes, 
sir.
    Senator Sessions. Of her appearance on campus. Are you 
aware of any other recognized conservative who was hired under 
her tenure?
    Mr. Goldsmith. Well, we don't really think about it as much 
as people outside the law school do about conservatives and 
nonconservatives. And I don't know the political or legal views 
of a lot of my colleagues. I do think it's misleading if you're 
implying that only three conservatives were hired in her 
tenure.
    Senator Sessions. Yeah, I'm implying that.
    [Laughter.]
    Mr. Goldsmith. Yes, sir. I don't think that's accurate.
    Senator Sessions. Three out of 43.
    Mr. Goldsmith. I don't think that's accurate, sir. I think 
you have the numerator wrong. The reason that I would say that 
the reason the Vermule and Manning and I are picked out is 
because we write about legal issues and public law and we are 
taken to have a conservative stance on that.
    Senator Sessions. Maybe you're right.
    Mr. Goldsmith. But I don't believe the numerator is 
accurate. And I would also say that, you know, there were a 
whole range of hires right, left, and center of all stripes and 
I don't know and I don't really care about the political 
affiliations.
    [Simultaneous conversation.]
    Senator Sessions. There are not many known out of the 100-
some-odd faculty conservatives other than you three.
    Mr. Goldsmith. No, sir. I would disagree with that as well.
    Senator Sessions. Not a lot. What percentage would you 
give? Over 10?
    Mr. Goldsmith. Yes, sir, I would.
    Senator Sessions. Over 20?
    Mr. Goldsmith. I don't know.
    Senator Sessions. I doubt it. I doubt over 10.
    Mr. White, the only thing I would say to you is, I 
appreciate your testimony and respect it. I would just note 
that when you came in this was after the controversy and Dean 
Kagan had started having some dinner with the military. But 
before that, she was not doing that, and that's when the 
controversy occurred. And I think the other witnesses' 
testimony that the military wasn't the one that should have 
been blamed, those in Congress who voted the law are the ones 
responsible for that law.
    Mr. Whelan, you talked about this question of activism and 
I really do think it's important. I think I used Senator 
Hatch's formulation of it. I'm not sure he agrees I got it 
right, but I would say an activist that deserves criticism is 
one who ceases to be faithful to the legitimate interpretation 
of the law or the Constitution and allows personal political, 
religious, social agenda to impact how they decide a case, a 
non-legal basis for a decision.
    And with regard to Ledbetter, in your opinion, were 
previous cases--that decision consistent with previous 
interpretations of the statute?
    Mr. Whelan. Absolutely.
    Senator Sessions. Were there any previous interpretations 
of a similar type?
    Mr. Whelan. Well, absolutely, Senator. The decision was 
consistent with four Supreme Court precedents over three 
decades. The opinion spelled that out in detail. And, again, I 
really invite you to ask the man who wrote the brief argument 
in the case for the government. Mr. Garre, I'm sure, will 
confirm that.
    Senator Sessions. Is that correct? That's right, Mr. Garre.
    Mr. Garre. That's correct. It was one of the Department of 
Justice attorneys on the brief. I did not argue the case. I do 
think that Mr. Whelan is right that the government's position 
in that case and ultimately the Supreme Court's decision in 
that case was in line with a number of prior Supreme Court 
decisions.
    Senator Sessions. And it would therefore be unfair to 
accuse the court of an activist ruling in that case?
    Mr. Garre. I agree with that, your honor.
    Senator Sessions. Your honor?
    Mr. Garre. Senator.
    [Laughter.]
    Mr. Garre. Force of habit.
    [Laughter.]
    Senator Kaufman. He liked the former better.
    Senator Sessions. I would note that Dean Kagan never made 
that mistake having never argued or been before a judge but a 
few times in arguing a case.
    Mr. Alt, on Citizens United people criticized the Court for 
ordering a rehearing as if this were some error on the Court. 
It seems to me that showed their great respect and 
understanding that a case might need to be reversed and it 
needed great care before such an action would be taken, the 
Austin case, I guess, in particular. Would you consider that 
the Court ordering a rehearing was a wise thing to do before 
making a significant decision in that circumstance?
    Mr. Alt. I certainly would, Senator. I think it gave the 
parties ample opportunity to both brief and argue the question. 
Regrettably the government's position given the failings of the 
statute didn't get any better. It went from defending it on the 
basis of it could be used to ban books, to well, the statute 
could be used to ban pamphlets. And I think that the Court 
found that equally disturbing in the second argument.
    One of the other criticisms that has been frequently made 
is that they didn't try to avoid the question. But if you look, 
the Court had been avoiding the constitutional question on this 
for a long time and it had gotten to the point where they were 
bending the law to the point where it was breaking. They needed 
to answer this question. And I do think that rehearing gave the 
parties ample opportunity to brief and to argue before the 
action was taken to overturn Austin.
    Senator Sessions. Professor Rotunda.
    Mr. Rotunda. Just to add to that----
    Senator Sessions. Before you say, let me just thank you for 
the serious question on recusal. I think we'll all have to 
think about that as this nomination goes forward.
    Mr. Rotunda. Thank you. Just to add to that, Citizens 
United is talked about as a conservative decision. I don't 
understand that part. That is, the ACLU was very prominent in 
it filed an amicus brief on behalf of the winning position, the 
so-called ``conservative position.'' The Court was very clear, 
the majority, going through the long history. You had 
politicians like Senator--or President Harry Truman when he 
signed a particular statute acknowledging he thought the 
provision on corporate restrictions was unconstitutional. And 
there was a long series of victims in prior cases from justices 
like Justice Douglas, who most people would not think of as all 
that conservative, supporting the position that the majority 
embraced.
    I mean, you can like Citizens United, you can not like it, 
it's a free country. You can say what you want. But to say that 
that's a conservative opinion is surprising when there were so 
many liberal supporters embracing the position that the Supreme 
Court ultimately adopted.
    Senator Sessions. Thank you.
    Senator Kaufman. Thank you. Senator Hatch.
    Senator Hatch. Thank you, Mr. Chairman, I appreciate it. I 
appreciate each one of you folks who are here today.
    Professor Goldsmith, I'm happy to have you there. I think 
it's a great addition to Harvard.
    Captain, we have to respect what you say.
    Dean Clark, I've watched you for years and I enjoyed your 
testimony. It was very frank. You mentioned some concerns you 
had, but on the other hand it's important testimony.
    Mr. Garre, I've had quite a bit to do with a number of you 
guys here, so I feel very deeply toward all of you.
    I've read Professor Rotunda and his constitutional law and 
his whole series. And I just want to pay tribute to you as 
well.
    You read it too, huh?
    [Laughter.]
    Senator Hatch. Now, if I understand you, Mr. Alt, and you, 
Mr. Whelan, you're saying in the Ledbetter case that the Court 
did nothing wrong, it just sustained a Congressional enaction--
enactment; right?
    Mr. Whelan. Well, yes, Senator. It's even beyond that.
    Senator Hatch. Sustained a--is it a 180-day statute of 
limitations?
    Mr. Whelan. A charging period for EEOC filings. But, again, 
Senator, it's beyond that. My point is that the criticisms that 
have been leveled against it rest constantly on a 
misrepresentation of what the Court held. The Court made clear 
that it was not----
    Senator Hatch. That's my point. I mean, I agree with you on 
that. The fact of the matter is Congress then came back and 
changed it so that they could correct the so-called ``ill.'' 
But in all honesty, if it's true that she had 5 years since she 
left the position, she could have asserted herself in 180 days. 
Now, that's cloudy in a lot of our minds, but the fact of the 
matter is, it's not activism to sustain the law that Congress 
passed. And if it happens to be wrong, Congress can change that 
law which it did in this particular case. If I get you right, 
that's what I understand you were saying.
    Mr. Whelan. Well, that's correct, Senator. And, again, the 
examples that I used of liberal judicial activism were rulings 
on constitutional grounds that invalidated democratic 
enactments in hugely important areas in a way that Congress and 
state legislators cannot possibly address. So that's where you 
see the core of judicial activism when courts wrongly rule on 
constitutional issues in a way that invalidates democratic 
enactments.
    Senator Hatch. I don't disagree with you. In the Citizens 
United case, either one of you could answer this or anybody 
else for that matter, in the Citizens United case it seemed to 
me that that case overruled the Austin decision. But how many 
decisions were different from Austin before that?
    Mr. Alt. Once again, I do think it's apt to refer to it as 
an orphaned unique. This is a case, if you take a look----
    Senator Hatch. You don't have to convince me on Austin. I 
think they should have overruled Austin. My point is a bigger 
point than that and that is they really sustained years and 
years and case after case that had preexisted. Am I right or 
wrong on that?
    Mr. Alt. Absolutely. Dating back from the U.S. v. the 
Congress of Industrial Organizations case in 1948 in which the 
Court suggested that limitations which would restrict writing 
by a union would--writings by a union would----
    [Simultaneous conversation.]
    Senator Hatch. Basically what they did was reaffirm Buckley 
v. Bolin.
    Mr. Alt. Certainly with regard to the core. Again----
    [Simultaneous conversation.]
    Senator Hatch. My point is it doesn't sound like activism 
to me.
    Mr. Alt. No. Buckley said that free speech was the rule and 
the exception is limitations on corruption and the appearance 
of corruption. Austin came up with a fanciful expansion on 
that.
    Senator Hatch. When this hearing started, our colleagues on 
the other side, I think were taking on the Roberts Court as 
though it was an activist Court. I personally think that's 
wrong. And I think you've made a fairly decent case here today 
that it is wrong.
    Mr. Whelan. Senator, if I may add one point about Citizens 
United that I developed more in my written testimony. Solicitor 
General Kagan declined to defend the actual rationale of 
Austin, a point which underlies what an outlier that case was. 
She was criticized by folks on the left for doing so. Chief 
Justice Roberts in his concurring opinion pointed out her 
failure to do so. And I think--I'm not faulting her for that, 
I'm pointing out that it illustrates that Austin was not a 
precedent worthy of respect.
    Senator Hatch. Well, the Court explained that it overruled 
Austin because Austin was not consistent with the First 
Amendment. I'll always argue on the part of the First Amendment 
if I can. In other words, in overruling Austin, the Court was 
preferring the Constitution to one of its own principles.
    Mr. Whelan. Exactly. And as Professor Rotunda pointed out, 
it's odd to describe a robust First Amendment ruling that 
benefits unions equally with corporations and it's sought by 
the ACLU as a conservative result.
    Senator Hatch. My time is up, but isn't adhering more 
closely to the law in this case to the Constitution an example 
of judicial restraint rather than judicial activism?
    Mr. Whelan. The Court's obligation is to strike down 
democratic enactments that violate the Constitution. When it 
does that, it is not engaging in activism.
    Senator Hatch. So that's judicial restraint.
    Mr. Whelan. Entirely consistent with Judicial restraint. 
Yes, Senator.
    Senator Hatch. Thank you.
    Senator Kaufman. Senator Kyl.
    Senator Kyl. Thank you, Mr. Chairman. And thank you all. 
Captain, first of all, thank you very much for your service. 
All of you have provided us important advice about someone who 
you know well or whose views you have closely studied and your 
testimony therefore is very helpful to us and we thank you for 
it.
    I have not read the written version of all of your 
testimony, but I have read yours, Mr. Whelan. I found it up to 
your usual incisive and impactful standard. I only regret that 
none of my democratic colleagues except Senator Kaufman are 
here to be instructed in the error of their ways.
    [Laughter.]
    Senator Kyl. And Professor Rotunda, I too am baffled that 
upholding political speech in the First Amendment is not 
considered a liberal decision in either the classical or 
contemporary sense of that. I would enjoy being in a legal 
seminar with every one of you. Thank you very much for your 
testimony.
    Senator Kaufman. Thank you. I just have a couple of 
questions. Professor Goldsmith, just having spent some time 
around a law school, the vast majority of courses that are 
taught at a law school are courses that you could not identify 
who or what someone's political persuasions, Bankruptcy Court, 
Administrative law; isn't that true?
    Mr. Goldsmith. You might be able to depending on how they 
taught it, but likely not.
    Senator Kaufman. Professor Clark.
    Mr. Clark. Yeah, I think the more general point is there 
are lots of divisions within faculties at universities and law 
schools in particular and there are people who you would call 
right and left. But what they mean by that is very, very 
different from what you are meaning here in these confirmation 
hearings.
    Senator Kaufman. Thank you.
    Mr. Clark. That is, it's usually about some methodologic 
whether you think historians are worth reading or whether you 
think economic analysis with a lot of quantitative data means 
anything. It's that sort of thing rather than what you've been 
talking about for a few days.
    Senator Kaufman. Thank you.
    Mr. Garre, as a former Assistant General, you have a unique 
perspective, on that you share with General Kagan. Please tell 
us a little bit about the relationship between the Supreme 
Court and the Solicitor General and how you believe service as 
Solicitor General provide valuable experience in serving on the 
Court?
    Mr. Garre. Senator, I think it's valuable in a number of 
different respects. The Solicitor General is an officer of the 
Court. She is the most frequent litigant before the Court. She 
is grappling in many respects with the same issues that the 
Supreme Court is grappling with and it is simply impossible to 
serve as Solicitor General and not develop a profound respect 
for the Supreme Court and appreciation for its role in American 
government. And so in all those respects I think it will be 
extremely helpful, I'm sure, that General Kagan had a deep 
knowledge of the Supreme Court before she held that job. But an 
experienced Solicitor General in practicing before the Court 
gives you a unique perspective on the workload of the Court, 
the rhythms of the Court and the role of the Court.
    Senator Kaufman. Thank you. Senator Sessions.
    Senator Sessions. Thank you. And, Mr. Garre, you wouldn't 
know that Solicitor General Kagan made her first appellate 
argument ever just 9 months ago. And has, I think, actively 
served as a Solicitor General for only 14 months and has had no 
other sustained legal experience other than 2 years in a law 
firm right out of college. And I think Justice Rehnquist had a 
number of years of full-time practice serving in the Office of 
Legal Counsel which is an exceedingly critical part of the 
Department of Justice. But regardless, I just think her 
experience is, by any standard, thin. It would be difficult for 
me to imagine anybody to say it's not thin.
    And I will back off, Professor Clark. I'm sure I overstated 
a bit maybe the bias of Professor Goldsmith or imbalance in 
Harvard. But it is a real legitimate criticism and concern of a 
lot of us that law schools do have an extraordinary number of 
liberal, progressive faculty members as compared to 
conservatives. Some have felt they need to do better and maybe 
in that last few years have done a little better. But the 
balance is real. And law students have to be pretty 
intellectually vigorous to withstand that when they go through 
the courses--or hardheaded, like I was when I went through. But 
thank you all. This was really a good panel.
    Professor Presser, I think that this international law 
issue is important because Americans believe they should not be 
controlled by anyone that they don't elect to represent them, 
or getting taxation without representation. How can we have our 
law controlled, defined, or modified, or influenced by some 
parliament in Belgium or some potentate somewhere in the world?
    Mr. Presser. You're absolutely right. We fought a 
revolution over that and I don't think we can let ourselves be 
guided by some foreign bodies or some foreign emerging law. I 
only wish you had had a little bit clearer answers perhaps from 
General Kagan on that point. I think it's one that you have to 
be very concerned about.
    Senator Sessions. I do too. I thought that, you know, if 
you believe like Justice Kennedy has said, or Justice Ginsberg, 
or Stevens, why not defend them.
    By the way, I'm not sure you mentioned, but I was taken 
aback by Justice Stevens' opinion Monday in the McDonald case 
in which he talked about wisdom from a billion people around 
the world or something. It suggested that that somehow 
influenced his decision. Am I incorrect?
    Mr. Presser. No, I don't think so. I think the idea is in 
the air and I think it would be very important to press it.
    Senator Sessions. Well, Justice Scalia did his best, and 
I'll say that. Thank you, Mr. Chairman.
    Senator Kaufman. Senator Hatch.
    Senator Hatch. Just happy to have all of you here. I think 
the testimony has been across the board.
    Senator Kaufman. I do too. I think the testimony has been 
excellent and I really want to thank you all for coming here 
and helping with this. As we all know this is--as a Senator I 
have to say that this is the--after sending troops in harms way 
which is always the toughest decision for a Senator to make, 
how we vote on Supreme Court nominees is clearly the most 
important thing we have to do. It's a lifetime appointment and 
a Supreme Court Justice will be making decisions that are going 
to affect long after I'm gone or long after anybody at this 
table is gone. So I really want to thank you for participating 
in what I think is one of the most important processes we go 
through.
    And with that, I will dismiss you. And if the next panel 
would please come forward.
    Senator Kaufman. Good evening, everyone. The hearing has 
now come back to order.
    Because of the number of witnesses on this panel, I'd like 
to reiterate previous requests and ask all witnesses to please 
limit your oral statements to 5 minutes or under. If I 
interrupt, we can just put the rest of it in the record. 
Whatever you have, we will put in the record, but we would like 
to keep it to 5 minutes. Your full statement, written 
statement, will be put in the record, or any part you haven't 
finished will be put in the record.
    Senators, likewise, will have 5 minutes to ask questions of 
the panel. Along with Ranking Member Sessions, I am very glad 
to welcome ABA witnesses Kim Askew and William Kayatta. 
Together with the ABA witnesses, we will also hear from 
Professor Ronald Sullivan, Marcia Greenberger, Justice Fernande 
``Nan'' Duffly, Dr. Charmaine Yoest, Tony Perkins, Commissioner 
Peter Kirsanow, David Kopel, and William Olson.
    Now I'd ask you all to stand and be sworn so we may begin. 
Please raise your right hand.
    [Whereupon, the witness was duly sworn.]
    Senator Kaufman. Thank you.
    The ABA customarily assesses the qualifications of 
potential nominees to the Federal judiciary. Ms. Askew and Mr. 
Kayatta will address the ABA's evaluation of Solicitor General 
Kagan to serve in the United States Supreme Court.
    Kim Askew is the chair of the ABA Standing Committee on the 
Federal Judiciary, and William Kayatta is the First Circuit 
Representative of the ABA Standing Committee on the Federal 
Judiciary.
    Ms. Askew.

STATEMENT OF KIM ASKEW, ESQ., CHAIR, AMERICAN BAR ASSOCIATION, 
  STANDING COMMITTEE ON THE FEDERAL JUDICIARY ACCOMPANIED BY 
WILLIAM J. KAYATTA, JR., FIRST CIRCUIT REPRESENTATIVE, AMERICAN 
  BAR ASSOCIATION, STANDING COMMITTEE ON THE FEDERAL JUDICIARY

    Ms. Askew. Thank you, Mr. Chair, Ranking Member Sessions. 
We are honored to appear here today to explain the ABA Standing 
Committee on the Federal Judiciary's evaluation of the 
professional qualifications of Solicitor General Elena Kagan.
    The Standing Committee gave General Kagan its highest 
rating and unanimously found that she is Well Qualified. For 
over 60 years, the Standing Committee has conducted a thorough, 
nonpartisan, non-ideological peer review of nominees to the 
Federal courts.
    We assess the nominee's integrity, professional competence, 
and judicial temperament. The Standing Committee does not 
propose, endorse, or recommend nominees, we only evaluate the 
professional qualifications of a nominee and then rate the 
nominee either Well Qualified, Qualified, or Not Qualified.
    Of course, a nominee to the Supreme Court of the United 
States must possess exceptional professional qualifications. As 
such, our investigations of a Supreme Court nominee is more 
extensive than nominees to the lower Federal courts in two 
principal ways. First, all circuit members conduct 
investigations into the nominee's professional qualifications 
in every Federal circuit in the United States, not just the 
circuit in which the nominee resides.
    Second, while the Standing Committee independently reviews 
the writings of the nominee, we also commissioned three reading 
groups of distinguished scholars and practitioners. We were 
pleased to be assisted this year by a practitioner's reading 
group and academic reading groups at Georgetown University Law 
Center and Washington University in St. Louis School of Law. 
These professors are all recognized experts in their 
substantive areas, and our practitioners group contains top 
trial and appellate lawyers.
    In conducting General Kagan's evaluation, we contacted by 
letter some 2,400 persons, including every United States 
Federal judge, State judges, lawyers, law professors, and 
deans, and community and bar representatives. We conducted in-
depth interviews with some of the preeminent and most 
experienced lawyers and judges in the country.
    We interviewed several justices on the Supreme Court of the 
United States, Federal and State court judges, lawyers within 
the Solicitor General's Office, lawyers who had worked with or 
against General Kagan as she has headed the Solicitor General's 
Office, and we spoke with former Solicitor Generals from both 
political parties. We followed her career at the University of 
Chicago Law School and Harvard Law School, and interviewed law 
professors and deans there and elsewhere. Aided by our reading 
groups, the Committee analyzed her academic writings, 
transcripts of her oral arguments, speeches, and other 
materials.
    Mr. Kayatta and I personally interviewed General Kagan last 
month. The nearly unanimous consensus of all we interviewed 
demonstrated that General Kagan's professional qualifications 
are exceptionally outstanding in every respect.
    We concluded that General Kagan's integrity, professional 
competence, and judicial temperament meet the high standards 
for appointment to the Supreme Court of the United States. She 
is Well Qualified. Our rating of Well Qualified reflects the 
clear consensus of her peers who have knowledge of her 
professional qualifications and we reached out to a broad range 
of our legal profession.
    By any measure, General Kagan has had an extraordinary 
legal career. She ably serves our Nation as the Solicitor 
General. She is the former dean of the Harvard Law School, and 
before that successfully became a tenured professor at two of 
our top law schools, where she taught in some four different 
subject matter areas.
    She has held two different positions in the White House 
under President Clinton. Her skills as a lawyer are described 
as ``brilliant'', ``remarkable'', and ``at the highest level.'' 
She is exceptionally competent, quickly grasping the most 
complex of legal issues. She is a gifted writer.
    She possesses a keen intellect, strong listening skills, is 
open-minded, willing to consider different and opposing points 
of view, and she possesses the ability to find common ground in 
the most difficult of circumstances. We ask that the ABA's 
statement be made a part of the record, the written statement 
that was submitted, and we thank you for the opportunity to 
present these remarks on behalf of the Standing Committee.
    Senator Kaufman. Your statement will be put in the record. 
Thank you, Ms. Askew.
    Ms. Askew. Thank you.
    Senator Kaufman. Thank you, Mr. Kayatta.
    [The prepared statement of Ms. Askew appears as a 
submission for the record.]
    Senator Kaufman. Professor Ronald Sullivan is the Edward R. 
Johnston Lecturer on Law and the director of the Criminal 
Justice Institute at Harvard Law School. He's also a founding 
fellow of the Jamestown Project, a think tank that focuses on 
issues of democracy. He's a graduate of Moorehouse College and 
a graduate of Harvard Law School.
    Professor Sullivan.

 STATEMENT OF RONALD SULLIVAN, EDWARD R. JOHNSTON LECTURER ON 
 LAW, DIRECTOR OF THE CRIMINAL JUSTICE INSTITUTE, HARVARD LAW 
                             SCHOOL

    Professor Sullivan. Thank you very much, Mr. Chairman, Mr. 
Ranking Member. Thank you for having me here.
    Let me begin with what I take to be the obvious, and that 
is anyone who has even had a passing acquaintance with Elena 
Kagan recognizes the fact that she has a first-class mind. 
She's an outstanding legal scholar and a terrific teacher. Her 
academic record is unassailable.
    Hearings on Supreme Court nominations represent an 
important--indeed, essential--expression of our democracy. This 
Committee attempts to carefully balance important norms of 
judicial autonomy with notions of democratic accountability.
    Understandably, the degree to which a particular nominee's 
judicial philosophy should be taken into account in making your 
decision is hotly contested, but whether framed in the 
vocabulary of judicial philosophy or the vocabulary of 
professional competence, the question--the primary question 
that animates this hearing and has done so for a long time is, 
what type of justice will Elena Kagan be if this Senate 
confirms her?
    To the extent that we can know what type of Supreme Court 
justice she might be, I respectfully suggest that we have to 
look at the whole person, her entire record as an academic, as 
an administrator, and as a policy advisor. Equally important, a 
fair evaluation of General Kagan's character will better 
illuminate the values that she would bring to the bench, should 
the Senate confirm her.
    Now, with that in mind I'd like to offer a few observations 
about the person I know, my former colleague, my former dean, 
and the person whom I'm proud to call my friend.
    Now, given that much of my academic work focuses on issues 
of access to justice, I want to talk to you a minute about 
Elena's record with respect to developing clinical programs 
while serving as dean of the Harvard Law School. As this 
Committee knows, clinical programs provide expert legal 
services to people, communities, businesses, and even 
governments that otherwise could not afford such services.
    Core principles of our justice system--equal protection 
under the law, equal access to the law, and the fair 
distribution of burdens and benefits across the citizenry--were 
advanced by then-Dean Kagan's support and interest in clinical 
programs. Concrete people and institutions were provided with 
legal services, and her efforts as dean demonstrated a firm 
commitment to these values.
    Significantly, the student body responded to her 
leadership. The number of students participating in clinical 
programs grew by an astounding 240 percent. Likewise, the 
number of hours students dedicated to pro bono work rose by 158 
percent. I know from personal experience the kind of impact 
that pro bono work can have on one's professional career, as my 
exposure to pro bono work while myself a student at Harvard Law 
School shaped my choice to serve the under-served and indigent 
with the best legal training that the country had to offer, 
expertise that my former clients, when I was a public defender 
right here in DC, would never have been able to afford.
    The clinical work done at Harvard and supported by then-
Dean Kagan is not merely another line added to a student's 
resume. Rather, clinical work is the place where some of our 
Nation's brightest legal minds decide to use those minds in the 
public service of our democracy.
    I also want to say a brief work about Elena's intellect and 
her intellectual method. I found her to be an active consumer 
of knowledge. She has a swift and eager mind and sought to 
understand complex issues before comment or action. While she 
had many answers, not a trait uncommon to Harvard law 
professors, she recognized that she did not have all the 
answers, which may be a trait less common among some of my 
colleagues. But she was always willing to engage. Her thought 
was always in progress and she was always willing to revise an 
opinion when facts and reasons conspired to produce a different 
result.
    Finally, I shall end by recounting one of General Kagan's 
first acts as dean. As the incoming dean, she could have 
decided to accept and hold the Royal Professorship of Law, the 
law school's first endowed chair. She declined. The Royal 
Professorship is named after Sir Isaac Royal, Jr., whose family 
earned its immense fortune from the trans-Atlantic slave trade.
    Because the chair was funded by this means, Elena Kagan 
opted to become the first person to hold the Charles Hamilton 
Houston professorship, an endowed chair named after one of the 
most prominent African-American attorneys to ever graduate from 
the Harvard Law School, and indeed the mentor of the late 
Justice Thurgood Marshall.
    In the end, I submit that any fair read of General Kagan's 
character, career, and scholarship will inevitably lead to the 
conclusion that she is intellectually gifted, fair-minded, 
hardworking, and an independent thinker.
    Thank you for the time.
    Senator Kaufman. Thank you, Professor Sullivan.
    [The prepared statement of Professor Sullivan appears as a 
submission for the record.]
    Senator Kaufman. Marcia Greenberger is a prominent women's 
rights lawyer and the founder and the co-president of the 
National Women's Law Center. She's an expert on sex 
discrimination and has participated in the development of key 
legislative initiatives and litigation protecting women's 
rights. She received both her BA and JD from the University of 
Pennsylvania.
    Ms. Greenberger.

  STATEMENT OF MARCIA GREENBERGER, FOUNDER AND CO-PRESIDENT, 
                  NATIONAL WOMEN'S LAW CENTER

    Ms. Greenberger. Thank you very much. Thank you, Senator 
Kaufman, and thank you Senator Sessions and Senator Hatch. I'm 
Marcia Greenberger, co-president of the National Women's Law 
Center, which, since 1972, has been involved in virtually every 
major effort to secure and defend women's legal rights in this 
country. I thank you for the invitation to testify, and I do so 
in strong support of Solicitor General Elena Kagan to be an 
Associate Justice of the United States Supreme Court.
    Elena Kagan shines as an example of the progress made in 
this country. Hers is a remarkable legal career for anyone, but 
all the more so because she had to break down barriers along 
the way. None of the positions she has held came to women with 
ease, and she excelled at each. When she clerked for Justice 
Marshall, a giant of a lawyer and a justice, she was just one 
of 7 out of 30 clerks, 7 women out of 30 clerks who clerked for 
the Supreme Court that term.
    The year before she became a tenured law professor at the 
University of Chicago Law School, only four women were tenured 
or even on tenure track at that time. And of course she became 
the first woman to be dean of Harvard Law School in its almost 
200-year history, and in 2009 became the first woman Solicitor 
General. Kudos have accompanied her performance in each of 
these demanding roles.
    She's clearly a person of extraordinary intellect and 
capacity, everyone concedes that, and each of the institutions 
she served benefited enormously from her great talents. The 
Supreme Court and the country will benefit with her on it not 
only because of her brilliance, but because of the quality of 
justice that will be improved for both men and women when the 
bench is more representative. When, for the first time, three 
women sit on the court, the court's deliberations will be 
deeply enriched by their experiences and perspectives.
    My written testimony describes in more detail why even one 
more woman on the court can make such a difference. Moreover, a 
review of Elena Kagan's record has led the center to conclude 
that, if confirmed, her approach to legal questions would be 
open-minded and dedicated to the application of the law's 
purpose and intent. She would be scrupulously fair and 
committed to dispensing equal justice.
    All women rely upon the Constitution and the law to ensure 
that fairness and equal opportunity are a reality in our daily 
lives. Women have a particularly great stake in judges' 
commitment to equal justice and the protection of their legal 
rights.
    Women's enormous progress toward equal opportunity has 
rested upon the constitutional right under the Equal Protection 
Clause, to be free from government-imposed discrimination, and 
the right to privacy under the Due Process Clause, as well as 
the core statutory protections that women fought so hard to 
secure in such fundamental areas as education, employment, 
health and safety, and economic welfare.
    Elena Kagan's record demonstrates that she will bring to 
the court that commitment to the rule of law and to equal 
justice for ordinary Americans, including the women of this 
country who often need its protection, as we heard in earlier 
panels, in ways that they never expected.
    One noteworthy example, which I discuss in my written 
testimony in more detail, is a case that dealt with the ability 
of individuals to go to court, to bring criminal contempt 
proceedings for violations of civil protections orders, and 
those are orders of particular importance to victims of 
domestic violence. She argued that case herself. She did so 
having clearly put enormous time and effort into it. It's been 
described in earlier panels that the cases that a Solicitor 
General argues himself or herself are noteworthy, and clearly 
she saw this one as important.
    To us, this evidences what we believe is a hallmark for 
Solicitor General Kagan, that she understands and has concern 
for the way the legal system affects people who need its 
protections most, in this case, victims of domestic violence, 
who still too often struggle to receive justice in our justice 
system.
    You know, Justice O'Connor recently noted that Canada has 
four women on its nine justice--on its nine--high court, 
including a female chief justice, and she said, now, what's the 
matter with us? You know, we can do better. With the 
confirmation of Solicitor General Kagan to the Supreme Court, 
this country is rightfully continuing on its path to doing 
better.
    Ours is a history of the first path breaker, then the 
second, and the third follows until we reach a point--still in 
the future but I am sure we will reach it--where we all stop 
noticing, because it is taken as a given, that there will be 
representation of all of us in our richness and diversity in 
this country.
    Thank you.
    Senator Kaufman. Thank you, Ms. Greenberger.
    Ms. Greenberger. May I just say one quick thing?
    Senator Kaufman. Absolutely.
    Ms. Greenberger. I understand my time is expired, but there 
were a number of comments about the Ledbetter case I see very 
differently, so I hope in the questioning I'll have an 
opportunity to discuss it.
    Senator Kaufman. Thank you.
    [The prepared statement of Ms. Greenberger appears as a 
submission for the record.]
    Senator Kaufman. The Honorable Justice Nan Duffly is an 
Associate Justice on the Massachusetts Court of Appeals and a 
board member of the National Association of Women Judges. 
Previously she served on the probate and family court. She 
earned her BA from the University of Connecticut and her JD 
from Harvard Law School.
    Justice Duffly.

    STATEMENT OF JUSTICE FERNANDE ``NAN'' DUFFLY, ASSOCIATE 
   JUSTICE, MASSACHUSETTS COURT OF APPEALS ON BEHALF OF THE 
              NATIONAL ASSOCIATION OF WOMEN JUDGES

    Justice Duffly.--for this Committee to speak in support of 
Solicitor General Elena Kagan's nomination to the Supreme 
Court. I am honored to be here today as past president of the 
National Association of Women Judges as its current co-chair of 
the Judicial Selection Committee, and on behalf of NEWJ's 
current president, Alaska Supreme Court Justice Dana Favre.
    The National Association of Women Judges is the voice of 
our Nation's female jurists. It has supported the advancement 
of women in the judiciary since our founding in 1979, when we 
first sought the appointment of the first woman to the Supreme 
Court. In September 1981, Joan Dempsey Kline, the co-founder of 
NEWJ, testified before this Committee on behalf of Sandra Day 
O'Connor, also a founding member.
    The first female attorney in what would be the United 
States, Margaret Brent, arrived in Maryland in 1683, but women 
were not admitted to State bars in this country until 1869, and 
there were no women judges until 1870 when the first woman was 
appointed a justice of the peace in Wyoming. A century would 
pass before every State had a woman on the bench.
    The advancement of women in the legal profession has not 
been rapid nor inevitable, but we are now past celebrating 
firsts. We look forward to celebrating full diversity on our 
Nation's courts.
    Judge Favre and I are appellate judges with nearly two 
decades of judicial experience each. We well recognize the 
essential qualifications that a justice of our highest court 
must have: superior intellectual capacity, an intimate 
knowledge and deep understanding of constitutional law, and the 
driving principles of legal jurisprudence in this country. 
General Kagan has these qualifications in abundance, as you've 
heard from our prior witnesses.
    Not all judges appointed to our appellate courts have, or 
need, prior judicial experience. Elena Kagan's rich and varied 
legal career as a private attorney, a White House lawyer, a 
professor, a dean, and the government's attorney in matters 
before the Supreme Court will provide her with a unique 
constellation of experiences that will bring fresh ideas to the 
court.
    The depth and breadth of General Kagan's educational and 
professional experience, coupled with her intellectual aptitude 
and preparedness, will serve her well on the high court, should 
she be appointed. A brilliant and highly regarded lawyer, law 
professor, whose communication skills are renowned, as you 
probably already experienced, her views will be respected and 
welcomed, if not adopted, by her colleagues.
    My interactions with General Kagan occurred largely during 
the year she served as the dean of Harvard Law School, from 
2003 to 2009, which coincided with my leadership positions in 
the NAWJ. Among other things, we worked together on an 
initiative that sought to provide information to law students 
about women and minority advancement in our country's law 
firms.
    At her request, I worked on educational programming for the 
Women's Leadership Summit that she convened at Harvard in 2008, 
and as an active alumna I've had a number of opportunities to 
interact with her and to hear her speak. I learned from these 
interactions that she comes prepared as a quick and nimble 
intellect, humor, and a respect for her audience.
    I believe that the presence of women and minorities on a 
court has an impact on overall decision-making that goes beyond 
the opinions of the female or minority judges themselves. When 
judicial colleagues respect each other they are open to the 
interchange of new ideas that those from diverse backgrounds 
can bring. Women judges bring unique experiences that inform 
their own decisions, but the interchange between male and 
female colleagues has, in my experience, profoundly affected 
the decisions of both the female and the male jurists.
    Now, that Elena Kagan would be one of three women on the 
Supreme Court is also significant, would also be significant. 
In order to benefit from the diversity of background and 
experience that women bring to the bench, the presence of women 
cannot be occasional or token. Our courts, but most important 
our Nation's highest court, must reflect the diversity of our 
people.
    For well over two decades, women and men have been 
graduating from our law schools in nearly equal numbers, which 
likely means that the men and women are equally represented in 
the current pool of attorneys eligible for judicial 
appointment.
    With the appointment of Elena Kagan, the Supreme Court 
would come a step closer to reflecting the broad diversity of 
those who call America home. The National Association of Women 
Judges supports with enthusiasm and without qualification the 
nomination of Elena Kagan to the Supreme Court of the United 
States.
    Thank you.
    Senator Schumer. [Presiding] Thank you, Justice Duffly.
    Now, Charmaine Yoest. Dr. Charmaine Yoest is president and 
CEO of Americans United for Life. Dr. Yoest began her career in 
the White House during the Reagan administration. She's also 
worked as the project director of the Family, Gender, and 
Tenure project at the University of Virginia, and as vice 
president at the Family Research Council.
    She has also worked as the Project Director of the Family, 
Gender and Tenure Project at the University of Virginia, and as 
Vice President at the Family Research Council. She received her 
BA from Wheaton College and her MA and Ph.D. from the 
University of Virginia.
    Dr. Yoest, your entire statement will be read in the 
record, and you may proceed.

  STATEMENT OF CHARMAINE YOEST, PRESIDENT AND CEO, AMERICANS 
                        UNITED FOR LIFE

    Ms. Yoest. Mr. Chairman, Ranking Member Sessions, Senator 
Hatch, thank you very much for the opp to testify today on 
behalf of Americans United for Life, the Nation's oldest pro-
life public interest law and policy organization.
    Our vision at AUL is a nation where everyone is welcomed in 
life and protected in law. We have been committed to defending 
human life through vigorous judicial, legislative, and 
educational efforts since 1971, and have been involved in every 
abortion-related case before the Supreme Court, including Roe 
v. Wade.
    In fact, 30 years ago this week, AUL successfully defended 
the constitutionality of the Hyde amendment before the Supreme 
Court in Harris v. McRae, a landmark case in defense of unborn 
human life.
    I am here tonight because of AUL's strong opposition to the 
nomination of Solicitor General Elena Kagan to the United 
States Supreme Court. Based on our research, we believe that 
Ms. Kagan will be an agenda-driven justice on the Court and 
that she will oppose even the most widely accepted protections 
for unborn human life.
    The hearings have strengthened our opposition to Ms. 
Kagan's appointment. As the record shows, she was willing to 
manipulate the facts to pursue her own personal political 
agenda while serving as an adviser to President Clinton.
    Indeed, she demonstrated a pattern of behavior of letting 
her passion for a particular policy, in this case, partial 
abortion, overwhelm her judgment.
    Tonight, I would like to make three points. First, I urge 
this Committee to officially investigate the discrepancies that 
have arisen this week between Ms. Kagan's testimony and the 
written record about her actions related to potentially 
lobbying the American Medical Association and the American 
College of Obstetricans and Gynecologists during her tenure in 
the Clinton White House.
    The questions surrounding this period are troubling and 
call into question Ms. Kagan's ability to adopt an impartial 
judicial temperament.
    Second, Ms. Kagan, has an extensive record that 
demonstrates her hostility to regulations of abortion and any 
protections for unborn human life. We believe that Ms. Kagan 
would undermine any efforts by our elected representatives to 
pass or defend even the most widely accepted, common sense 
regulations of abortion, like bans on partial birth abortion, 
parental notification, and informed consent.
    Her testimony this week, particularly her response to 
Senator Feinstein that any regulation of abortion requires the 
Doe health exception has added to this concern.
    Third, we believe that a nominee's judicial philosophy goes 
to the heart of his or her qualifications to serve on the 
United Supreme Court, and we believe that Ms. Kagan's agenda-
driven judicial philosophy makes her unqualified to serve on 
the Court.
    We are asking this Committee to investigate Ms. Kagan's 
record related to her interaction with both the AMA and ACOG 
during her tenure as a policy adviser to President Clinton.
    I would like to focus attention tonight on her apparent 
efforts to influence and distort the record on the medical 
science related to partial birth abortion. In a December 14, 
1996 memo, Ms. Kagan addressed the pending release of a 
proposed statement by ACOG that partial birth abortion is never 
medically necessary. ``The release of such a statement,'' she 
argued, ``would be a disaster.''
    In response, White House documents show that Ms. Kagan 
drafted an amendment to ACOG's statement, dramatically altering 
their language, which stated that partial birth abortion, and I 
quote, ``may be the best or most appropriate in a particular 
circumstance to save the life or preserve the health of a 
woman.''
    ACOG subsequently adopted Ms. Kagan's handwritten change 
into their final statement.
    Ms. Kagan claimed before this Committee that she was simply 
a scribe for changes coming from ACOG, but her response raises 
more questions than it answers. And this was not an isolated 
case.
    We have further evidence that she pursued the same strategy 
with the AMA. Similar to ACOG's original position, the AMA 
issued a policy stating that no situations had been identified 
where partial birth abortion was the only appropriate method of 
abortion and that ethical concerns surround it.
    In a White House e-mail dated June 1, 1997, Ms. Kagan wrote 
that she just came from a meeting which focused on, quote, 
``whether the AMA policy can be reversed at its convention on 
June 23.'' She then concluded, ``We agree to do a bit of 
thinking about whether we could contribute to that effort.''
    Ms. Kagan was so opposed to the passage of a ban on partial 
birth abortion that she appears to have advocated for ACOG and 
the AMA to suppress or modify their medical view. She made a 
deliberate decision to advocate for partial birth abortion, 
even to the point of working to deceive the American public 
about the medical science related to he procedure.
    On this panel tonight, we have heard quite a bit about the 
role of women in the judicial system. Let me just say, as a 
woman, that this deeply offends me.
    Thank you.
    [The prepared statement of Charmaine Yoest appears as a 
submission for the record.]
    Senator Schumer. (Off microphone) and will be read in the 
record.
    Tony Perkins. Mr. Perkins is the President of the Family 
Research Council. He is a former member of the Louisiana 
legislature, and a veteran of the United States Marine Corps. 
He received his undergraduate degree from Liberty University 
and his MPA from Louisiana State University.
    Mr. Perkins, your entire statement will be read in the 
record, and you may proceed.

 STATEMENT OF TONY PERKINS, PRESIDENT, FAMILY RESEARCH COUNCIL

    Mr. Perkins. Thank you, Mr. Chairman, Ranking Member 
Sessions, and the remainder of the committee, Senator Hatch. 
Thank you for the invitation to testify.
    As one who spent a number of years in uniform as a Marine 
and a police officer, my remarks will focus primarily on Ms. 
Kagan's treatment of military recruiters at Harvard Law School.
    As has been pointed out, while dean of the law school, she 
defied the requirements of Federal law known as the Solomon 
Amendment. Her violation of this Federal law was motivated by 
her vehement opposition to the military's prohibition against 
open homosexuality.
    This protracted incident, combined with the just made 
public report of her rewriting of the medical finding of ACOG 
on partial birth abortion as an adviser in the Clinton White 
Houses, raises doubts as to whether she possesses the requisite 
judicial temperament and impartial nature required of a Supreme 
Court Justice.
    On the former topic, when Ms. Kagan did comply with the 
law, she wrote to the campus, making clear just how grudging 
her cooperation with the military was in light of the 
military's, quote-unquote, ``repugnant policy.''
    She declared, quote, ``I abhor the military's 
discriminatory recruitment policy,'' and she added that ``The 
policy was a profound wrong, a moral injustice of the first 
order,'' end quote. A moral injustice of the first order.
    Of all the moral injustices throughout history that man has 
inflicted on man, she equates them to a military policy enacted 
by Congress.
    Mr. Chairman, the purpose of our military is to fight and 
win this country's wars. War is the most difficult human 
activity, bar none. It requires organized groups of men and 
women to act with strategic and tactical lethality, while its 
members are simultaneously being wounded and killed.
    In war, the normal ways of living are completely sacrificed 
in the harsh, punishing environment of combat. Even in 
peacetime settings, in units not engaged in combat, great 
sacrifices are required.
    Military life, by its nature, must be characterized by 
regular lack of privacy and repeated situations of forced 
intimacy.
    As military experts have testified and this Congress has 
affirmed, in such an environment, it is not a moral injustice 
of the first order to minimize the sexual exposure that such 
conditions force on soldiers, sailors, Marines and airmen. It 
is the only sensible and effective way to run a military 
organization.
    It should be noted that the current law on homosexuality in 
the military has been repeatedly challenged and upheld by the 
Federal courts, and the Supreme Court unanimously upheld the 
Solomon Amendment.
    Now, some have defended Ms. Kagan's actions regarding the 
military, claiming they do not demonstrate that she is anti-
military. And there is truth in that, only in that she does not 
oppose the military simply because they are the military.
    However, clearly, she does oppose the military, because 
they have not yet bowed to the demands of the sexual counter-
culture.
    Her record would suggest that it is not that Ms. Kagan does 
not want the military to defend our Nation against terrorists. 
It's just that she wants to use the military to advocate 
radical social policies more.
    This becomes very clear when one examines the amicus brief 
that Ms. Kagan signed on to in the Solomon case. The brief 
began with a sweeping declaration that is startling in its 
implications. Quote, ``We are deeply committed to a fundamental 
moral principle. A society that discriminates based on sexual 
orientation or tolerates discrimination by its members is not a 
just society,'' end quote.
    Note that Kagan and the professors condemned not only a 
society that discriminates, but a society that tolerates 
discrimination by its members. I abhor discrimination based on 
race and other immutable characteristics, but the implications 
of this statement are chilling for the freedom of speech and 
the freedom of religion in America.
    It should alarm those who live in the 45 states that define 
marriage a union of a man and a woman, and to the tens of 
millions of Americans who affirm biblical moral teaching.
    Her own statements make obvious that Elena Kagan would 
strike down any marital statute, including the Federal Defense 
of Marriage Act, which defines marriage as being the union of 
one man and one woman.
    At question is not whether Ms. Kagan is a good person or 
even if she is skilled in the law. What is in question is her 
ability to be an impartial jurist.
    Her record makes clear that she is an impassioned activist 
that only sees laws and, in some cases, science as mere 
obstacles to overcome in pursuit of a far left agenda.
    We do not need a justice on the Supreme Court who sees it 
as her life mission to write the homosexual version of Roe v. 
Wade by striking down one man-one woman marriage all across 
America.
    These positions and the temperament accompanying them make 
her unfit to sit as an associate justice on the Supreme Court, 
and I urge the Senate to reject her nomination.
    [The prepared statement of Tony Perkins appears as a 
submission for the record.]
    Senator Schumer. Thank you, Mr. Perkins.
    Now, Peter Kirsanow. Mr. Kirsanow is a partner in the labor 
and employment practice group of Benesch Friedlander and serves 
on the U.S. Commission on Civil Rights.
    He is a former member of the National Labor Relations 
Board, to which he received a recess appointment from President 
George W. Bush. He received his BA from Cornell University in 
New York State, and his J.D. from Cleveland State University.
    Commissioner Kirsanow.

         STATEMENT OF PETER KIRSANOW, BENESCH LAW FIRM

    Mr. Kirsanow. Thank you, Mr. Chairman, Ranking Member 
Sessions, and Senator Hatch. I am Peter Kirsanow, a member of 
the U.S. Commission on Civil Rights, and a partner with the 
labor employment practice group of Benesch Friedlander, and I 
am here in my personal capacity.
    The U.S. Commission on Civil Rights was established 
pursuant to the 1957 Civil Rights Act to, among other things, 
act as a national clearinghouse for information related to 
denials of equal protection and discrimination.
    In furtherance of the clearinghouse function, my assistant 
and I reviewed the documents related to civil rights authored 
by Ms. Kagan from her time as a clerk to Justice Marshall 
through her tenure as Solicitor General, all in the context of 
prevailing civil rights jurisprudence.
    Our view revealed at least two significant concerns with 
respect to Ms. Kagan's approach to cases involving racial 
preferences and school assignments, which approach has been 
rejected by the Supreme Court in at least six cases.
    The first concern pertains to Ms. Kagan's position on the 
third circuit case of Piscataway v. Taxman, contending that 
Title VII permits the nonremedial use of racial preferences by 
employers for the purpose of achieving diversity.
    In Taxman, the Piscataway Board of Education laid off a 
white teacher rather than a black colleague for the express 
purpose of increasing diversity in the school's business 
education department. However, this was done despite the fat 
that there was no evidence of discrimination against black 
teachers, no evidence of workforce segregation, and no evidence 
of a manifest racial imbalance in a traditionally segregated 
workforce.
    In fact, black teachers were actually over-represented on 
Piscataway's faculty relative to the general population.
    Ms. Kagan's position went beyond what the Supreme Court has 
held to be permissible voluntary affirmative action under 
Johnson v. Transportation Agency and Steelworkers v. Weber. In 
essence, Ms. Kagan's position would give employers wider berth 
to make employment decisions on the basis of race.
    The second concern pertains to Ms. Kagan's endorsement of 
three Texas school districts' plan to assign students to 
schools on the basis of race. Again, solely for the interest of 
racial balancing, but without any evidence of either de jure or 
even de facto segregation or discrimination.
    Although Ms. Kagan found the school bridge's approach to 
be, quote, ``amazingly sensible,'' the Supreme Court also 
rejected this approach in Parents Involved v. Seattle School 
District and Meredith v. Jefferson County.
    Taken together, Ms. Kagan's position in Taxman and Goose 
Creek would give employers and administrators license to engage 
in racial engineering on a far more expansive scale, 
effectively making decisions, counting winners and losers on 
the basis of race in many circumstances.
    Evidence produced before the Civil Rights Commission shows 
that when the courts have opened the door to racial engineering 
just a bit, preferences have expanded exponentially.
    For example, evidence adduced in two recent Civil Rights 
Commission hearings shows that more than 10 years after the 
Supreme Court's decision in Adarand, Federal agencies persist 
in using race-conscious programs in government contracting 
versus race-neutral alternatives.
    Moreover, even though the Supreme Court struck down the use 
of raw numerical weighting in college admissions in Gratz v. 
Bollinger, thereby requiring that race be no more than a thumb 
or feather on the scale in the admissions process, powerful 
racial preferences have shown absolutely no signs of abating.
    A recent study by the Center for Equal Opportunity shows 
that at one major university, racial preferences are so great 
that the odds that a minority applicant would be admitted 
overly similarly white comparative are 250-to-1. At another 
major university, the odds are 1,115-to-1.
    That's not a thumb or a feather on the scale. That's an 
anvil or a bus. Were Ms. Kagan's position to prevail, the 
concept or principal of equal treatment would yield 
increasingly to preferential treatment.
    Furthermore, Ms. Kagan's endorsement or embrace of racial 
engineering by employers would actually harm the very 
minorities who are the intended beneficiaries of the 
preferences.
    Evidence from a 2006 Civil Rights Commission hearing shows 
that there is increasing data that racial preferences create 
what is known as a mismatch effect that increase the 
probabilities that minorities will fail.
    For example, black law students, who are the beneficiaries 
of preferences, are 2.5 times more likely than their white 
comparatives not to graduate; four times more likely to fail 
the bar exam on the first try and six times more likely never 
to pass the bar exam, despite multiple attempts.
    It is respectfully submitted that Ms. Kagan's 
interpretative doctrine permits employers, administrators and 
others to single out certain groups for preferential or 
differential treatment. Today, there is nothing that prevents 
those same employers from shifting their preferences to some 
other group tomorrow, contrary to the colorblind ideal 
contemplated by the 1964 Civil Rights Act.
    Thank you, Mr. Chairman.
    [The prepared statement of Peter Kirsanow appears as a 
submission for the record.]
    Senator Schumer. We thank all the witnesses for staying 
within the 5-minute time limit.
    David Kopel is the Research Director of the Independence 
Institute and an Associate Policy Analyst at the Cato 
Institute. He is also an adjunct professor of advanced 
constitutional law at Denver University.
    Mr. Kopel received his J.D. from the University Law School 
and his B.A. from Brown University.
    You may proceed.

   STATEMENT OF DAVID KOPEL, RESEARCH DIRECTOR, INDEPENDENCE 
                           INSTITUTE

    Mr. Kopel. Thank you very much, Senator Schumer.
    The last 3 days have raised rather than allayed concerns 
that Justice Kagan could destroy rather than defend Second 
Amendment rights.
    You have been offered platitudes that Heller is settled law 
and that the nominee knows that Second Amendment rights are 
very important to many Americans.
    Last summer, Ms. Sotomayor offered nearly identical 
assurances. Yet, this Monday, Justice Sotomayor and Justice 
Breyer declared that Heller should be overruled.
    Those rights which so many Americans consider so important 
would be eliminated by judicial fiat.
    Ms. Kagan has rejected every opportunity which this 
Committee has offered to provide any meaningful commitment to 
the Second Amendment. To the contrary. She has even refused to 
affirm that the Declaration of Independence has any value in 
guiding constitutional interpretation.
    While the Declaration states that the protection of 
inalienable natural rights is the very purpose of government, 
Ms. Kagan will not answer whether the natural right of self-
defense is among those inalienable rights.
    We know from history that Jefferson and Madison and the 
rest of the founders and their intellectual ancestors, such as 
John Locke, considered self-defense to be one of the most 
fundamental of all rights.
    As Supreme Court clerk, Justice Kagan wrote, ``I'm not 
sympathetic,'' when a man challenged the DC handgun ban, which 
Heller later found to be unconstitutional. ``I'm not 
sympathetic'' is, obviously, the expression of her own opinion.
    The 1996 comparison of the National Rifle Association to 
the Ku Klux Klan indicates great hostility even to the 
political advocacy of Second Amendment rights. There has been 
no credible explanation of this comparison.
    As my written testimony details, a few weeks ago, the White 
House provided one explanation, which, on its face, was not 
credible. On Tuesday, Ms. Kagan provided an entirely different 
explanation. She said that the NRA/KKK line was her record of a 
phone conversation with someone else.
    But a memo from Fran Allegra at the Department of Justice 
to Ms. Kagan at the White House reflects that it was Ms. Kagan 
herself who specifically wanted to know if the Volunteer 
Protection Act would apply to either the Klan or the National 
Rifle Association.
    As Ms. Kagan has accurately testified, Supreme Court 
judging is not a robotic process. There is a great deal of 
judgment involved.
    In the near future, there will be judgment about whether to 
overrule Heller or McDonald v. Chicago. Even if those cases 
remain intact, there will be judgment about what types of anti-
gun laws infringe Second Amendment rights.
    A court which is unsympathetic to the Second Amendment 
could construe the Second Amendment so narrowly that it would 
provide little practical protection for the rights of the 
American people.
    In the Clinton White House, Ms. Kagan was the architect of 
a unilateral executive ban on the import of 58 rifles. Her 
White House aide, Jose Cerda, accurately characterized the 
Kagan-Clinton ban.
    ``We are taking the law and bending it as far as we can to 
capture a whole new class of guns.'' Senator Leahy wrote to the 
Clinton White House to strongly protest what he called ``using 
a Presidential directive to avoid the normal legislative 
process.
    The Kagan-Clinton gun ban required that the word ``or'' in 
a statute be read to mean ``and.'' It required that the term 
``sporting purposes'' be read to mean only hunting and not 
target shooting.
    The Kagan ban was premised on the legal theory that the 
only type of legitimate hunting rifle is the type which would 
be used by a wealthy person who could afford to pay for a 
professional hunting guide.
    The ban further defined legitimate sport hunting according 
to the restrictive rules of 13 states rather than the rules of 
the majority of states.
    On Tuesday, Ms. Kagan told this Committee that her gun 
control work in the Clinton White House was just to keep guns 
out of criminal hands. But the Clinton-Kagan gun ban prevented 
all law abiding citizens from acquiring those rifles, even 
after passing a background check.
    The Second Amendment cannot long endure without a robust 
First Amendment. Based on Ms. Kagan's scholarly works, it is 
clear that not since Robert Bjork has the Senate Judiciary 
Committee held hearings on a Supreme Court nominee with such a 
well established record in favor of substantially constricting 
First Amendment rights.
    Ms. Kagan was a great dean at Harvard, and her testimony 
has shown you that she is expert on constitutional law, highly 
intelligent, and has a fine sense of humor. Neither her 
testimony nor her professional record have given you plausible 
reasons to believe that she would protect the Second Amendment 
rights of the American people.
    Thank you.
    [The prepared statement of David Kopel appears as a 
submission for the record.]
    Senator Schumer. Thank you, Mr. Kopel.
    And our last witness is William Olson. He is the principal 
of the law firm of William J. Olson, PC. He received his J.D. 
from the University of Richmond and his B.A. from Brown 
University.
    Mr. Olson.

  STATEMENT OF WILLIAM OLSON, PRINCIPAL, WILLIAM J. OLSON, PC

    Mr. Olson. Thank you, Senator Schumer, and Senator 
Sessions, and Senator Hatch.
    Our law firm represents one of the Nation's leading Second 
Amendment groups, Gun Owners of America, and we have filed 
amicus briefs in Supreme Court cases, such as Heller and 
McDonald.
    Despite the Court's decisions in Heller and McDonald, 
Americans understand that the right to keep and bear arms 
continues to be in jeopardy. Both victories were achieved by 
narrow 5-4 votes. And Ms. Kagan is not a person who could be 
expected to defend the Second Amendment.
    Early in her career, Ms. Kagan evidenced visceral hostility 
to the people's right to keep and bear arms as a law clerk to 
Justice Thurgood Marshall in the Sandidge case. I am familiar 
with that case, because, with Dan Peterson, I filed the only 
amicus brief supporting Mr. Sandidge.
    I searched for my Sandidge file, and here is what I found. 
Mr. Sandidge was an African-American man who worked at a 
laundromat in the District. He was required to carry his cash 
receipts with him to his apartment over the laundromat, which 
necessitated him leaving the building and walking around the 
street briefly between the two entrances.
    Mr. Sandidge had been robbed previously. When arrested, he 
was carrying a .25 semiautomatic pistol to protect himself.
    Ms. Kagan urged Justice Marshall to deny the petition for 
cert for one reason--``I'm not sympathetic.'' Supreme Court 
rules set forth the standards for granting cert. ``I'm not 
sympathetic'' is not among them.
    If Ms. Kagan meant that she was not sympathetic with his 
legal position, remember that the Sandidge court had ruled that 
the Second Amendment was only a collective right, not an 
individual right.
    If Ms. Kagan meant she was not sympathetic with Mr. 
Sandidge, Ms. Kagan turned her back on a man who was made into 
a felon for exercising his right to keep and bear arms.
    In 1997, in Printz v. United States, the Supreme Court 
struck down the Brady bill requirement that state and local law 
enforcement officers must work for the Federal Government, 
doing background checks on handgun sales.
    While that case was still pending, the Clinton White House 
was designing an end-run strategy should it lose the case, and 
Ms. Kagan was in the thick of it.
    An e-mail reveals her role. ``Based on Elena's suggestions, 
I have sought options as to what POTUS could do by executive 
action. For example, could he, by executive order, prohibit a 
Federal firearms licensee from selling a handgun without a 
chief law enforcement officer certification? ''
    Ms. Kagan appears to have believed that the President could 
circumvent Congress and act without statutory authority to 
impose restrictions on firearms.
    Ms. Kagan then worked on the Presidential directive that 
would suspend the importation of firearms that were legal under 
the law that Congress had passed.
    When asked in these hearings by Senator Grassley on Tuesday 
of this week whether the Second Amendment codified a 
preexisting right or whether the right to keep and bear arms 
was created by the Constitution, she replied, ``I never really 
considered the question.''
    When Senator Grassley asked whether the Second Amendment 
right was a fundamental right, Ms. Kagan said it was, because 
the majority of justices in the McDonald case said so.
    The Kagan view of rights is that they are whatever a 
majority of the Supreme Court rules at a particular time in a 
particular case. But under that philosophy, what the Court 
grants, the Court may take away.
    If Ms. Kagan does not know whether our inalienable right to 
defend ourselves from criminals and tyrants comes from God, as 
the Declaration of Independence states, or from government, she 
cannot be trusted to protect our God-given right to self-
preservation.
    During these hearings, Ms. Kagan also acknowledged that 
Heller had precedential weight and agreed to abide by it, but 
refrained from providing her own personal views or whether the 
case was rightly decided.
    When asked whether the Second Amendment protected an 
individual right, she said, ``There's no question after Heller 
that the Second Amendment contains such a guarantee.''
    That is nice. But what about before Heller? Heller did not 
rewrite the Second Amendment. The Supreme Court decision only 
rejected a false notion that it protected only collective 
rights.
    Ms. Kagan's answer that she is bound by Heller provides us 
no assurance that, as a justice, she is bound by the Second 
Amendment, as written by the framers.
    Thank you, Mr. Chairman.
    [The prepared statement of William Olson appears as a 
submission for the record.]
    Senator Schumer. Thank you, Mr. Olson.
    Now, I will give myself 5 minutes, and then we will call on 
Senator Sessions, then Senator Hatch.
    My first question is to Kim Askew. The standing committee's 
report, ABA, focused on the concerns raised by some critics 
that Solicitor General Kagan does not have experience as a 
judge.
    In fact, according to your report, the overwhelming view of 
those interviewed thought it was important to also have judges 
who have spent a number of years outside the judiciary.
    Why do you believe broad legal experience outside the 
Judicial Branch would be beneficial to Elena Kagan, if she is 
confirmed as a justice on the Supreme Court?
    Ms. Askew. Thank you. The standing Committee is reporting 
the information that we received from the many lawyers and 
judges that we interviewed as part of our peer review. And so 
what we present to you we think is the overwhelming position 
that we obtained in talking about that issue.
    We learned that many of the outstanding lawyers and judges 
believe that it is important to have former judges, and it is 
also important to have those who have some other background, as 
academicians, as practitioners, as government officials.
    When we look at the professional qualifications of a 
nominee, we look at the distinguished accomplishments that they 
bring in whatever area they have focused their careers in.
    That is what we did with General Kagan. There is no 
question that when we look at an appellate court, such as the 
Supreme Court, in addition to trial experience, we do not 
always require trial experience. We look at those things that 
relate to what an appellate court judge will do.
    We look for a high degree of legal scholarship. We look for 
academic talent. We look for analytical and writing abilities, 
and we look for overall excellence. And based on what we were 
able to conclude, she is certainly preeminent in all of those 
areas, and that is why the standing Committee came to its well 
qualified rating.
    Senator Schumer. Thank you.
    For Ms. Greenberger. A number of the witnesses had a view 
of Ledbetter that might be different than yours. Why do you 
view the Ledbetter case as a departure from precedent and 
practice?
    Ms. Greenberger. Well, let me just give a few specifics. 
When the Supreme Court decided Ledbetter, and it did so 5-4, it 
overturned 9 out of 10 court of appeals circuit decisions that 
would have decided the legal issue of whether she was allowed 
to bring her claim in court in Lilly Ledbetter's favor.
    The only case out of the 10 circuits that decided 
differently was the Ledbetter court. That was a major 
departure.
    Second, although the government did, in the Solicitor 
General's office, in the last administration when the opinion 
was issued, as was discussed in the panel earlier, side with 
Goodyear Tire. The case below had the government on Lilly 
Ledbetter's side.
    The official and expert agency, the Equal Employment 
Opportunity Commission, that is charged with interpreting our 
anti-employment discrimination law for decades, had interpreted 
the law to allow cases like Lilly Ledbetter's to go forward and 
was in her case on her side.
    Third, there was actually an extremely disturbing 
suggestion that her testimony that she did not learn about the 
nature of the pay discrimination until she received an 
anonymous note was not accurate. And there was a waived 
deposition supposedly establishing that she knew about this 
discrimination years before she filed the charge.
    No deposition that I have seen indicates that she had such 
knowledge. She has testified repeatedly that she had no 
knowledge. The jury below had believed that, as well.
    So for both the set of facts at issue, the law at issue, 
government longstanding interpretations at issue, this was a 
major change in the law by a 5-4 decision. And the dissenting 
opinion had gone through in great detail the distress of the 
four dissenting justices in the Supreme Court, and let me say 
it is not because it is the--the concern is not because of a 
desire to have one driven agenda result versus another.
    The concern was because the role of the justices on the 
Supreme Court is to interpret the intent of the law and apply 
it as Congress intended it to apply.
    The pretty quick reversal demonstrated that the five 
justices had distorted Congress intent, had shifted what the 
intent of the law had meant to a point that it eviscerated the 
ability to ever bring a pay discrimination case in court.
    Senator Schumer. Thank you.
    Senator Sessions.
    Senator Sessions. Ms. Greenberg, I would just say that I am 
going to go back and look at that case. It is amazing we have 
such disagreements about it, and it went out on the floor and I 
am not sure I fully understand it.
    I do know that Congress felt that the statute was not 
artfully drawn and rewrote it so it would be clear. And one of 
the reasons lawyers are cautioned about criticizing courts is 
because they may be ruling on a basis of law that might not be 
apparent to others. So I think we need a fair analysis of it.
    Ms. Askew, when you say you talked to judges about Dean 
Kagan, I presume, unless it was in the last few months before 
the Supreme Court, there were not judges before whom she had 
practiced or tried cases. Is that correct?
    Ms. Askew. Mr. Kayatta, who is the lead evaluator on this, 
has informed me that he is not a potted plant and as the lead 
evaluator, he would like to add something.
    Senator Sessions. Well, just a question. Did you talk with 
any judge before whom she actually tried a case before a jury 
or before a judge?
    Mr. Kayatta. No. Since she had not tried a case, we could 
talk to no judge. We did talk to judges before whom she had 
appeared and argued and we did talk to judges who knew her 
quite well in other circumstances, judges from what would be 
fairly described as both sides of--appointed by Presidents of 
both parties.
    Senator Sessions. Well, according to the Bar Association 
rules, as I understand it, in examining professional 
competence, the Committee has expressly stated that it, quote, 
``believes that a prospective nominee to the Federal bench 
ordinarily should have at least 12 years of experience in the 
practice of law,'' closed quote; and that, quote, ``substantial 
courtroom and trial experience as a lawyer or trial judge is 
important,'' closed quote.
    Now, I would just say that I learned so much more in the 
practice of law about how this magnificent, beautiful system 
operates than I did in law school, because it is difficult to 
have your hands around the reality of it.
    I found it difficult to understand how, when she did not 
meet those qualifications, that the Committee reached the 
highest rating for the highest score in the land.
    I know that the nominee is bright and that kind of thing, 
but I do think that perhaps the highest rating was not called 
for, and I would just share that.
    Mr. Chairman, I think received today or late yesterday, a 
letter from the National Rifle Association, who studies the 
issue and defends the rights of individual Americans to keep 
and bear arms, has written a letter, at the conclusion of the 
hearing, opposing the nomination of Dean Kagan, Solicitor 
General Kagan, and I would offer that for the record.
    Chairman Leahy. [Presiding.] without objection.
    [The letter appears as a submission for the record.]
    Senator Sessions. Mr. Olson, I think it was an important 
point you made, just briefly, because my time is short, the 
statement about the right to keep and bear arms, individual 
rights, those statements related, I think, as you correctly 
stated, to her statement of what the court held.
    It had no connection to whether she might conclude. That 
was very similar to now Justice Sotomayor, who made the same 
statement and was in the minority, the 5-4 case voting on not 
to uphold gun rights. Is that right?
    Mr. Olson. Yes, sir. Actually, that is a characteristic 
displayed by some people who have a philosophy called judicial 
supremacism, which is to say that they respect what their 
fellow justices say, they respect what their predecessor 
justices say, but not so much what the framers said when they 
wrote the Constitution. And that was the danger of her view, as 
expressed yesterday.
    Mr. Kirsanow, I want to say I appreciate the Civil Rights 
Commission taking action to deal with the new Black Panther 
case and seeking to find the truth about that, because the 
Department of Justice should have the integrity in that 
division, among any division, all the divisions that is 
required, and I'm concerned about that and I believe this 
committee, Mr. Chairman, is going to have to have hearings on 
it. I appreciate the Civil Rights Commission for raising that.
    Mr. Kopel. Is my time out?
    Senator Schumer. We can go to a second round, if you wish.
    Senator Hatch.
    Senator Hatch. Thank you, Mr. Chairman.
    Let me begin with you, Dr. Yoest. As you know, whether an 
abortion in general or an abortion procedure in particular is 
medically necessary. It's a very important issue in both the 
political and the legal arenas.
    Yesterday, I asked General Kagan about a 1996 memo that she 
wrote regarding legislative and political strategy in partial 
birth abortion issues. She noted that the American College of 
Obstetricians, or ACOG, had concluded that it could identify, 
quote, ``no circumstances,'' unquote, in which partial birth 
abortion would be the only option.
    General Kagan wrote, ``This, of course, would be a 
disaster,'' unquote, in her own memo. The memo includes her 
handwritten alternative language that the procedure, quote, 
``may be the best or most appropriate procedure in a particular 
circumstance,'' unquote.
    Now, that is obviously a completely different spin, and it 
could easily have very different impact, both politically and 
legally.
    I have two questions for you about this memo. First, am I 
right that ACOG, in fact, adopted General Kagan's positive 
language over its own language and that the Supreme Court 
relied on it in striking down Nebraska's ban on partial birth 
abortion in the case of Stenberg v. Carhart?
    Ms. Yoest. Yes, sir. You are correct.
    Senator Hatch. My second question is this. General Kagan 
told us yesterday that she characterized ACOG's original no 
circumstances language as a disaster, because it did not 
accurately reflect ACOG's own medical position.
    In other words, General Kagan told us that it would not be 
a political disaster for the Clinton Administration, but a 
public relations disaster for ACOG, if I interpreted her 
testimony correctly, and I think I did or I am.
    It seems a little odd that she would make a comment about 
medical accuracy in a memo about political and legislative 
strategy.
    It strikes me that this medical group was probably more 
qualified to state its own medical opinion about a medical 
issue than the White House staffer would be.
    But I'm wondering if, in your research and analysis of this 
issue, do you have any information or an opinion on the best or 
most possible way to do this? And was this an example of 
General Kagan trying to be medically accurate or politically 
savvy?
    Ms. Yoest. I appreciate you asking the question and raising 
the question, Senator Hatch, and this is one of the reasons we 
have asked the Committee to investigate the question further, 
because we believe there are a host of questions that this 
whole incident raises about her ability to set aside her 
tendency toward activism on this issue.
    As we look at the documentation that has come out of the 
White House in terms of the time line of her meeting with ACOG 
in June, this memo in December, the final statement coming out 
in January, we just think there are a lot of questions about 
what the interaction was between Ms. Kagan and the medical 
record.
    It seems to be very puzzling. Her statements seemed to be 
quite cryptic. And I would also just add that one of the 
reasons that we actually revised my oral testimony was to 
ensure that the record reflected that it was not just the ACOG 
situation, but, also, there was a pattern of behavior which was 
followed-up by us seeing a similar kind of interaction between 
her office at the White House and the American Medical 
Association.
    So this did not happen just in isolation in one case, but 
that there were two cases where a medical opinion that partial 
birth abortion was not medically necessary was--shall we say, 
there was an attempt to repackage it, possibly.
    Senator Hatch. Thank you.
    Mr. Chairman, I might take a little bit longer than the 35 
seconds I have left.
    Senator Schumer. You have a second round, but we could do 
your second round now.
    Senator Hatch. I think it will be my last question or 
series of questions.
    Let me go to you, Mr. Kopel. Many of my constituents are 
concerned about how judicial appointments will affect the 
status of the right to keep and bear arms, especially in our 
State of Utah.
    Despite what some people, including a number of my Senate 
colleagues, may claim, I think the vast majority of Americans 
are pleased with the Court's ruling in both the District of 
Columbia v. Heller, that was in 2008, as well as McDonald v. 
City of Chicago earlier this week.
    Now, these decisions embody the obvious interpretation of 
the Second Amendment that the right to keep and bear arms is an 
individual right, a fundamental right, and a right that local, 
state and Federal Government must at all times respect.
    Now, some may fear that in the future, an activist Supreme 
Court may overturn these landmark decisions. They were both 5-4 
decisions.
    The more immediate concern, however, may be that the lower 
courts might apply the Heller and McDonald decisions so 
narrowly that they have little or no practical effect, and that 
is the present concern.
    Courts can claim to be applying these precedents while 
strangling them and undermining the rights of law abiding gun 
owners.
    Now, how legitimate is this concern? And given what you 
know about General Kagan's record in this area, is this 
something we should be thinking about as we consider whether to 
vote for or against her in our confirmation?
    Mr. Kopel. I think, certainly, there are many issues about 
what is the legitimate scope of gun control, which the Heller 
and McDonald cases have not answers.
    So, for example, the Heller case said that you can ban the 
carrying of guns in sensitive places, such as schools and 
government buildings, and that seems to imply that there is a 
right to keep and bear arms in general public places.
    But that has not yet been litigated and a future Supreme 
Court might allow lower courts that were hostile to the right 
to say, ``Oh, you can only have a right to have a gun in the 
home.''
    In fact, Mayor Daley is right now proposing replacement gun 
laws in Chicago, which would say you can only have one handgun 
per person in the home and you can never take the handgun 
outside the home. You cannot even take it onto the porch.
    So if someone is on your porch trying to burn your house 
down, you cannot step outside on the porch to do something 
about it.
    There are plenty of lower court judges who are, 
unfortunately, hostile to the right and without giving proper 
guidance by the Supreme Court, they might well uphold laws that 
would drastically reduce the practical effect of the Second 
Amendment.
    We also clearly saw that Justices Breyer, Sotomayor and 
Ginsberg want to overturn Heller. They are not content to 
merely chip away at it, but want to get rid of the--get the 
right as a meaningful individual right entirely.
    They have replaced it with a right that said, ``Oh, it is 
individual, but it is only for the militia,'' and who knows 
what the militia is. Maybe that is just when you are on duty in 
the National Guard.
    So they would make the second amendment, in a practical 
sense, nullified.
    Senator Hatch. Do you have any comment, Mr. Olson?
    Mr. Olson. Yes, Senator. If you read the Heller case 
carefully, the opinion of even the dissenting judges, Justice 
Breyer and others, accepted the fact that the Second Amendment 
protected an individual right, but then went on to say it is 
all a matter of the scope of the right.
    You have not even gotten that commitment from Solicitor 
General Kagan. In other words, if she were to go onto the Court 
with what we know about her now, she could be the most anti-gun 
justice on that Court.
    Senator Hatch. I appreciate all of your testimony here. I 
know you have all sincerely given us the best you can.
    This is a particularly difficult thing for a lot of us, 
because you cannot help but like Elena Kagan. You cannot help 
but recognize that she's a scholar. You cannot help but 
recognize that she has a good sense of humor and that she is a 
decent person.
    But I remember--it was hard for me to vote against Sonia 
Sotomayor. But her comments before us, it seems to me, have not 
been lived up to with regard to this issue alone, and there may 
be others, as well. And the things that we were so worried 
about turned out to be proper worries.
    So this is always a difficult thing for us, especially when 
you have a nice, intelligent person and you want to support 
them.
    All I can say is this, Mr. Chairman. I am appreciative of 
all these witnesses. I understand that there are differing 
points of view and differing feelings about these matters. But 
we are talking about one of the most important positions in the 
world, one of nine, in the greatest court in the world, and it 
is something I take really seriously.
    So I am anguishing over this, without question. And I just 
want to thank each one of you for appearing. And, Mr. Chairman, 
thank you for being kind to me and letting me go ahead here.
    Senator Schumer. Thank you, Senator Hatch.
    Senator Sessions, do you want to ask some questions? I have 
one question. You can go first, and then I will ask my one 
question.
    Senator Sessions. All right. Thank you. I would offer, for 
the record, a recent op-ed or article on National Review Online 
concerning General Kagan's abortion history or analysis of 
that.
    Senator Schumer. Without objection.
    [The article appears as a submission for the record.]
    Senator Sessions. Ms. Yoest, one thing that bothered me was 
that I had indicated in my opening statement that it appeared 
that Ms. Kagan, when she was working in the Clinton White 
House, convinced President Clinton, who was prepared to sign 
the partial birth abortion ban, apparently, that had passed 
with over 60 votes in the Senate, and that she perhaps 
convinced him not to do so.
    But she testified at the hearing, ``I was, at all times, 
trying to ensure that President Clinton's views and objectives 
with respect to this issue were carried forward,'' suggesting 
that she simply--she did not provide any input one way or the 
other into that debate.
    Is that the way you read the record? What is a fair 
analysis of the facts on that?
    Ms. Yoest. Well, sir, in my written testimony, we detail 
that the counsel that she gave to President Clinton after she 
discovered that he was inclined to support a weak ban on the 
partial birth abortion, she wrote a memo to him claiming that a 
ban, a pre-viability ban on partial birth abortion would be 
unconstitutional.
    This is particularly troubling to us and I think should be 
to the committee, because bans on partial birth abortion are 
among the most supported by the American people, by the vast 
majority of the American people.
    Yet, through her argument to President Clinton in that 
written record, she has already clearly indicated that she has 
prejudged, that she believes that the ban that has currently 
been upheld by the Supreme Court would be unconstitutional.
    So our concern is that she has demonstrated through that 
record a real hostility to very common sense regulations on 
abortion and that she would actually work toward taking our 
jurisprudence on the pro-life issue far beyond even what we 
have in Roe v. Wade right now.
    Senator Sessions. Well, thank you, for you and your 
leadership on the abortion issue. It is a matter of legitimate 
interest by millions of Americans who deeply are concerned 
about what they think is a procedure that is indecent and does 
not speak well of our Nation.
    I would ask, Mr. Perkins, maybe you and Ms. Yoest, briefly, 
since my time is about out, to share with us what you feel when 
a judge or a slim majority of the Court declares that the 
Constitution answers the question of whether abortion should be 
legal in America or not, and how much--when that happens, how 
difficult it is for the American people to see redress from a 
constitutional declaration on an intense social issue and moral 
issue as abortion.
    Mr. Olson. Well, Senator Sessions, I believe that is the 
reason it is still being debated today, is because the Court 
interjected itself into that issue. And my concern over Elena 
Kagan and her propensity to advance these created rights for 
homosexuals, that we are going to see her write the Roe v. Wade 
of gay rights into the Supreme Court.
    So it is very concerning, because what happens is these 
issues are never resolved. And 35-plus years later, we are 
still debating this issue of life, and it will not go away 
until it is addressed in the right and appropriate forum.
    Senator Sessions. Do you agree, Ms. Yoest?
    Ms. Yoest. I think it is really important for us to 
recognize in the record that even scholars who support an 
abortion right agree that Roe v. Wade represents more of a 
political and policy agenda than anything that is rooted in the 
Constitution.
    Senator Sessions. I could not agree more. I am afraid that 
is so, and it has not gone away, like some justices thought, 
and it is still with us.
    Mr. Kopel, briefly, I do not think a lot of people who 
believe in the right to keep and bear arms, who believe that is 
a constitutional right, realize how fragile it is; how, with 
one vote different in Heller or one vote difference in 
McDonald, any city, any state, any county in America could 
possibly completely ban firearms, because they would basically 
be saying either it is not an individual right and it only 
applies to a militia of some sort or that if it is an 
individual right, the states are not bound to follow that 
constitutional principle.
    Am I overstating that?
    Mr. Kopel. No. I think that is exactly right. And then what 
was at issue in McDonald was really the point of why the 14th 
Amendment was enacted, which was to make--after the Civil War 
and all the troubles we had seen were caused by states being 
able to violate First and Second Amendment rights and other 
rights of American citizens, there was a decision to say that 
the whole Bill of Rights should apply to the whole country.
    If McDonald had gone the other way, maybe the right to arms 
would be still robust in places like Colorado under local 
decisions. But we do not want to just have the right be robust 
in places where it is has strong popular support. If you are an 
unpopular speaker, you should have your First Amendment rights, 
even if you are someplace where everybody else hates what you 
are saying.
    Likewise, your inalienable human right of self-defense 
exists wherever you live in the United States. You should not 
have to flee from one part of the country to another 
hopscotching around where your constitutional rights exist. 
That is the point of McDonald. The Constitution is for all of 
us, all over the country.
    Senator Sessions. Senator Schumer, I thank you and Chairman 
Leahy. I do believe it is healthy to have this panel and have 
people come before the country and be on C-SPAN and present 
official positions before this Senate, and I think it is a 
healthy part of democracy and I appreciate the Chairman 
allowing us to have this opportunity.
    Senator Schumer. Thank you. On behalf of the chairman, 
thank you for your kind remarks and thank you for your very 
avid participation in the entire hearing.
    I have one final question for Professor Sullivan. Some 
mention was made tonight about positions that General Kagan 
advocates on affirmative action while she was in the Clinton 
Administration. I have two questions.
    First, in general, were the Clinton Administration's 
positions on affirmative action in line with the mainstream at 
the time? And second, did she ever, to your knowledge, while 
dean at Harvard, act inconsistently with the law on affirmative 
action?
    Mr. Sullivan. The answer to the first question is yes, and 
the answer to the second question is no. She did not act 
inconsistent, meaning that she acted quite consistently with 
those laws.
    One thing I would add, Senator Schumer, is I would just 
caution the public in inferring too much from positions as an 
advocate, as though those positions necessarily will translate 
into positions as a judge.
    We learn from the first day in law school that advocacy 
does not entail necessarily an acceptance of the position, but 
rather it is a particular skill that lawyers are quite well 
trained in.
    Now, it may imply something, but it is just not necessarily 
so. And sometimes I think that we prove too much in our 
statements with respect to people in different sort of roles.
    Senator Schumer. Thank you.
    Ms. Greenberger, do you want to say something?
    Ms. Greenberger. Just indulge me for a moment, yes. I know, 
of course, there are very deeply held views about whether Roe 
v. Wade should be overturned and that is not something that I 
wanted to address right now. And I do know, obviously, that 
that is a very important goal for Dr. Yoest and for Mr. 
Perkins, as well.
    What I did want to address was what sounded to me like a 
very serious charge regarding the actual record of women's 
health. And I think what would be very important and that I 
would commend this Committee to look at is the actual record in 
the cases, the physicians who testified under oath.
    For example, Justice O'Connor, in her opinion, referenced 
to a significant body of medical opinion regarding the fact 
that for some patients, and, of course, that means for some 
women, that it was a procedure that led to greater safety, with 
a detailing of the particular conditions.
    So I think that people can have a lot of different 
opinions, but, of course, because we are talking about a 
justice, the facts, what records show, what the trial courts 
found, that that is where the real wisdom would lie in this.
    I would urge looking at those facts, which are very 
consistent with Elena Kagan's record in her attempt to bring 
the facts to the President's attention.
    Senator Schumer. Thank you, Ms. Greenberger.
    With that, I want to thank all 10 of our witnesses for 
their differing, but all interesting and heartfelt testimony. 
And you have helped the panel and, I think, helped the country 
move further along in this process.
    So with that, these hearings are now adjourned.
    [Whereupon, at 8:08 p.m., the hearing was concluded.]
    [Questionnaire and questions and answers and submissions 
for the record follow.]






                                 
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