[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
U.S. GOVERNMENT PRINTING OFFICE
67-622 PDF WASHINGTON : 2010
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20402-0001
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
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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.]