[Congressional Record Volume 156, Number 93 (Monday, June 21, 2010)]
[Senate]
[Pages S5171-S5177]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          SEPARATION OF POWERS

  Mr. SPECTER. Mr. President, I have sought recognition to again alert 
my

[[Page S5172]]

colleagues to what I consider to be a very important matter, and that 
is that the Supreme Court of the United States is materially changing 
the traditional separation of powers and that, as a result, the 
Congress of the United States continues to lose very substantial power 
in the Federal scheme under the Constitution of the United States. This 
is a theme I have submitted over the course of the last 30 years, since 
1981, with the confirmation proceedings of Justice Sandra Day O'Connor. 
And in now the 12th proceeding that I will personally have participated 
in, I raise this issue again to urge my colleagues to take a stand.
  The only opportunity we have to influence the process is through the 
confirmation of Supreme Court Justices. But we have witnessed a series 
of cases where instead of the traditional doctrine of separation of 
power, there has been a very material concentration of power which has 
gone principally through the Court and secondarily to the executive 
branch.
  The Framers put the Congress under Article I. It was thought at the 
time the Constitution was adopted that Congress would be the foremost 
branch representing the people. The executive branch is Article II, and 
the judiciary branch is Article III. Were the Constitution to be 
written today, I think we would find the course inverted. But what we 
have seen here is that recent decisions of the Supreme Court have 
abrogated the traditional deference given by the judicial branch to 
findings of fact and the determination of public policy arising from 
what Congress finds in its extensive legislative hearings, with the 
Court substituting its judgment with a variety of judicial doctrines. 
During the confirmation process where we examine the nominees, we 
continue to receive lip service about congressional authority but, once 
confirmed, we find that the nominees have a very different attitude and 
engage in very substantial jolts to the constitutional law in effect.
  The generalized standard for what would be the basis for upholding an 
act of Congress was articulated by Justice Harlan in Maryland v. Wirtz 
in 1968 interpreting the commerce clause, saying:

       Where we find that the legislation as a rational basis for 
     finding a chosen regulatory scheme necessary to the 
     protection of commerce, our investigation is at an end.

  That is the general legislative standard which had been adopted by 
the Court in reviewing acts of Congress until the case of City of 
Boerne v. Flores in 1997. There, the Supreme Court adopted a new 
standard. They articulated it as congruence and proportionality, with 
the Supreme Court of the United States reviewing the act of Congress to 
decide whether it was congruent and proportional to what the Congress 
sought to achieve, and that entailed an analysis of the record, giving 
very little deference to what Congress had found.
  On its face, the standard of congruence and proportionality suggests 
that the Court can come out anywhere it chooses. That was the view of a 
very strong dissent by Justice Scalia in a subsequent case, where he 
said:

       The congruence and proportionality standard, like all such 
     flabby tests, is a standing invitation to judicial 
     arbitrariness and policy-driven decisionmaking.

  So that when you take a standard of that sort and undercut the 
traditional deference to congressional fact-finding, you end up with 
the Court making law instead of interpreting law. Under that decision, 
we have seen a whole torrent of Supreme Court decisions declaring acts 
of Congress unconstitutional. Illustrative are the Morrison case, 
involving the Violence Against Women Act, the Garrett case under the 
Americans With Disabilities Act, and repeatedly the issue was undercut.
  As a result, in the confirmation hearings, many of us--this Senator 
included--sought to establish an understanding of a nominee's approach 
to giving the deference to congressional findings. Illustratively--and 
I have spoken on this subject before--Chief Justice Roberts and Justice 
Alito used all the right language, but when we find the application of 
the language, they have done a reverse course. Justice Roberts spoke 
eloquently about the need for modesty and for the Court not to jolt the 
system, but to follow stare decisis. With respect to fact-finding, this 
is what Chief Justice Roberts had to say in his confirmation hearing:

       I appreciate very much the differences in institutional 
     competence between the judiciary and the Congress when it 
     comes to basic questions of fact finding, development of a 
     record, and also the authority to make the policy decisions 
     about how to act on the basis of a particular record. It's 
     not just disagreement over a record. It's a question of whose 
     job it is to make a determination based on the record. . . . 
     [A]s a judge, you may be beginning to transgress into the 
     area of making a law . . . when you are in a position of re-
     evaluating legislative findings, because that doesn't look 
     like a judicial function.

  So there you have a very flat statement by the nominee saying that it 
is not the Court's role to transgress into the area of lawmaking, which 
is what does happen in reevaluating legislative findings.
  Justice Alito said about the same thing. This is his testimony in his 
confirmation hearing:

       I think that the judiciary should have great respect for 
     findings of fact that are made by Congress. The judiciary is 
     not equipped at all to make findings about what is going on 
     in the real world--not these sort of legislative findings. 
     And Congress, of course, is in the best position to do that. 
     Congress can have hearings and examine complex social issues, 
     receive statistical data, hear testimony from experts, 
     analyze that and synthesize that, and reduce that to 
     findings. And when Congress makes findings on questions that 
     have a bearing on the constitutionality of legislation, I 
     think they are entitled to great respect.

  The decision in Citizens United found the Court reversing recent 
decisions in the Austin and McConnell cases. Instead of giving the 
deference to the congressional findings, which was articulated by Chief 
Justice Roberts and Justice Alito, they did an about-face.
  In raising this consideration, I do not challenge the good faith of 
Chief Justice Roberts or Justice Alito. I recognize and acknowledge the 
difference between testifying in a confirmation hearing and what 
happens during the course of a decision when deciding a specific case 
in controversy. But when we take a look at what happened in Citizens 
United--and again, this is a matter of the illustration--we have the 
enormous record that was created by the Congress in enacting McCain-
Feingold and the findings of fact there to support what the Congress 
did, which was invalidated by the Supreme Court of the United States in 
Citizens United, which upset 100 years of precedent in allowing 
corporations to engage in political advertising.
  The scope and detail of the congressional findings were outlined by 
Justice Stevens in his dissenting opinion in Citizens United. The 
statement of facts by Justice Stevens on commenting on the record is 
not a matter of disagreeing on opinions. People are entitled to their 
own opinions but not to their own facts, as has been reiterated so 
frequently. This is what Justice Stevens noted on the congressional 
fact-finding:

       Congress crafted in the McCain-Feingold legislation ``in 
     response to a virtual mountain of research on the corruption 
     that previous legislation failed to avert.'' The Court now 
     negates Congress's efforts without a shred of evidence on how 
     section 203 or its State law counterparts have been affecting 
     any entity other than Citizens United.

  Justice Stevens said this to emphasize not only that the Court's 
holding ran counter to outstanding congressional judgment but also 
``the common sense of the American people,'' who have recognized a need 
to prevent corruption from undermining self governing since the 
founding and who have fought against the distinctive corrupting 
potential of corrupt electioneering since the days of Theodore 
Roosevelt.
  Justice Stevens went on to point out that the record compiled in the 
context of the congressional legislation was more than 100,000 pages 
long. He noted that judicial deference is particularly warranted, 
whereas here we deal with the congressional judgment that has remained 
essentially unchanged throughout a century of legislative adjustment.
  Now, as a result of what happened in Citizens United, we found that, 
illustratively, Chief Justice Roberts did substantially differently 
when on the Court in contrast with what he did in his confirmation 
hearing. In the confirmation hearing, Chief Justice Roberts did 
acknowledge that the act was a product of an ``extraordinarily 
extensive legislative record.''
  ``My reading of the Court's opinion,'' Chief Justice Roberts went on, 
``is that

[[Page S5173]]

was the case where the Court's decision was driven in large part by the 
record that had been compiled by Congress. The determination there was 
based on the extensive record carrying a lot of weight with the 
justices.''
  The matter was particularly problemsome. As Justice Stevens noted:

       The Congress relied upon the decision of the Supreme Court 
     in the Austin case.

  Stevens noted that overruling Austin was especially significant 
because Congress had specifically relied on that decision in drafting 
the McCain-Feingold Act.
  So essentially what you have here is relatively recent decisions by 
the Supreme Court of the United States in Austin and McConnell. You 
have a very extensive congressional record, which sets forth the 
factors about the need to avoid corrupt practices and electioneering 
brought about by money and, beyond the actual corrupt practices, the 
appearance of corruption, and the legislative effort to set this kind 
of a factual basis. And you have Justices in confirmation hearings 
committing to respecting and being deferential to congressional 
findings. But when the decision comes, 100 years of precedent is 
overturned. You don't have a modest decision; you have a decision which 
jolts the system.
  It is a difficult matter where we proceed candidly as to where we go 
beyond getting the most positive assurances we can from the nominees. I 
suggest to my colleagues that when we begin the confirmation process 
with Solicitor General Kagan next week, this should be a focus of 
attention because what is happening is that the power of Congress is 
being diluted. If you have legislative findings that go for 100,000 
pages and then you have Justices who have under oath said that they 
will give deference to congressional findings; you have Congress 
enacting the McCain-Feingold law based upon the standards set by the 
Supreme Court of the United States in the Austin case; you have the 
relatively recent precedents of Austin and McConnell, for instance, the 
Federal Election Commission; and then you have a case like Citizens 
United coming down, that ought to be a sharp focus of attention.
  My sense is that the reality is that this body and our counterpart 
across the Rotunda pay relatively little attention to what the Supreme 
Court of the United States does. They have the final say. It is often 
noted that they are right only because they are final. When we have an 
opportunity, through the confirmation process, to focus on these 
issues, I suggest to my colleagues that it is high time we do so.
  There is a second area where the authority of Congress has been very 
materially undermined. It has been where the Supreme Court of the 
United States declines to decide cases. We have a situation where the 
Court hears and decides relatively few cases. This is against the 
backdrop where, historically, the Supreme Court of the United States 
decided many more cases. Going back to 1886, the Supreme Court of the 
United States had on its docket 1,396 cases and decided 451 cases. In 
1987, the Supreme Court issued 146 majority opinions. In 2006, less 
than 20 years later, the Supreme Court heard arguments in only 78 cases 
and handed down opinions in only 68 cases. A year later, 2007, the 
Supreme Court heard arguments in 75 cases and handed down opinions in 
only 67 cases. In 2008, arguments in 78 cases, decisions in 65 cases. 
This is in a context where Chief Justice Roberts testified in his 
confirmation hearing that he thought the Court ought to hear more 
cases.
  In a letter I will submit for the Record, there is a detailing of the 
tremendous number of important circuit splits where the Supreme Court 
of the United States does not decide which circuit is correct or you 
have one circuit deciding a case one way or another circuit deciding a 
case another way, and then the situation arises in yet a third circuit, 
and there is no guiding precedent. There is confusion, and I suggest 
that the Court really has the duty to take up these circuit splits and 
make a definitive decision so that the law is clarified, so that 
litigants and lawyers can know where the law stands on a specific case. 
Stated simply and directly, the Court is not too busy to take up these 
circuit splits.
  There are other major cases where the Court declines to hear cases, 
which I respectfully submit that the Court ought to hear. Illustrative 
of one of the major constitutional conflicts in the history of the 
United States has been the controversy over warrantless wiretaps. You 
have the Foreign Intelligence Surveillance Act of 1978, which in very 
emphatic terms says the exclusive way a wiretap may be obtained would 
be through a warrant, where the Federal investigative authorities filed 
an affidavit of probable cause with a Federal judge or a Federal 
magistrate, and only after that permission is granted may the wiretap 
be activated. That is to protect the very basis of privacy and the very 
strong interdiction of the Fourth Amendment to the U.S. Constitution, 
which prohibits unreasonable search and seizure.

  It has been 5 years since it was disclosed that the executive branch, 
under the so-called Terrorist Surveillance Program, was undertaking 
warrantless wiretapping. The activity was being undertaken under the 
contention that the President had power as Commander-in-Chief, 
executive authority under Article II to disregard the act of Congress.
  It is standard hornbook law. The Congress cannot legislate in 
violation of the Constitution. But if, in fact, the President of the 
United States, under certain circumstances, has the authority as 
Commander-in-Chief to engage in conduct, Congress may not proscribe it, 
may not eliminate it, may not limit the power of the President that the 
President has under constitutional authority.
  But 5 years have passed and there has been no decision in the case. A 
Federal district court judge in Detroit declared the act 
unconstitutional. The case was appealed to the Court of Appeals for the 
Sixth Circuit, and in a 2-to-1 decision the court decided that there 
was no standing, which is a popular doctrine for declining to hear a 
case and ducking the issue.
  I believe any fair analysis of the opinion of the court of the 
dissenting opinion gave much additional weight to the dissenters or, in 
any event, a very close question, one of paramount importance that 
ought to have been decided by the Sixth Circuit.
  The case was then taken to the Supreme Court of the United States, 
which denied certiorari. Those issues are still very much in play.
  In a case in the U.S. district court in San Francisco, Judge Vaughn 
Walker has declared the act unconstitutional. It is questionable 
whether that is a final ruling in the case. But the Supreme Court of 
the United States, with as many law clerks as they have--four and five 
each; many more than they have had in earlier days--and with the very 
light docket they have, there is no reason that a case such as the 
Terrorist Surveillance Program should not be adjudicated by the Supreme 
Court so we would know what the law was on that subject.
  Another case which I have spoken about on the floor of the Senate 
involves the litigation brought by survivors of the September 11 
attacks on the United States where some 3,000 people were killed. A 
lawsuit was begun to get damages from the Government of Saudi Arabia, 
from five Saudi princes, from a Saudi charitable organization which was 
an instrumentality of the government, and other defendants.
  The Congress of the United States in the sovereign immunity law 
specifically decided that the sovereign should not have immunity in any 
case where there was a domestic tort involved, such as the conduct 
involved in 9/11.
  The Court of Appeals for the Second Circuit decided the legislation 
did not apply because it applied only in situations where a nation had 
been declared a terrorist state. That exception is nowhere in the 
statute. It had no place in the decision.
  When application was made for certiorari to have the case considered 
by the Supreme Court, the Solicitor General's Office, headed by 
Solicitor General Kagan, took the position that the Second Circuit was 
wrong but urged the Court not to take the case on the ground that there 
were important foreign policy questions involved. Solicitor General 
Kagan took the position that where no acts occurred within the United 
States, the Foreign Sovereign Immunities Act did not apply.
  Again, this reading was pulled literally out of thin air. Nothing in 
legislative history or background would

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suggest that the victims of 9/11 ought not have a case against the 
Government of Saudi Arabia and the princes and the charitable 
organization, an instrumentality of the state. Under those 
circumstances, no distinction between the acts occurred, but there was 
plenty of repercussion and plenty of consequence from that tortious 
conduct when America was attacked. Here the Supreme Court of the United 
States has denied to hear the case, which leaves the Congress 
subservient to the executive branch.
  The business about being deferential to foreign powers, in my 
judgment, is not an adequate basis for disregarding the legitimate 
claims of the people who were killed on 9/11, not sufficient to 
disregard the congressional enactment which held that there ought not 
to be sovereign immunity where there is tortious conduct involved; that 
the doctrine of sovereign immunity ought to apply to commercial 
transactions but not to conduct such as was evidenced on 9/11.
  Again, we have as an adjunct of what happens when the Court 
disregards congressional findings. You have the action of the Court in 
declining to hear cases such as the Terrorist Surveillance Program, 
such as the litigation brought by the survivors of the victims of 9/11 
where the authority of Congress is materially undercut.
  There has been other action taken by the Supreme Court of the United 
States. It is hard to pick the description which is sufficiently 
forceful, whether it is surprising or whether it is astounding. But 
litigation was brought in a case captioned McComish v. Bennett where 
the district court in Arizona held that Arizona's Citizens Clean 
Elections Act was unconstitutional.
  In that case, the State of Arizona had decided to provide for 
matching funds in order to deal with the problems of campaign 
financing, trying to deal with the issues of corrupting influence of 
money, both the fact of corruption and the appearance of corruption.
  I am not going to take the time now to go through the long list of 
cases where Members of Congress have been convicted of illegal campaign 
contributions which rose to the level of being a quid pro quo and a 
bribe. But the Federal district court in Arizona said the Arizona 
legislation, captioned the Citizens Clean Elections Act, was not 
supported by a compelling State interest, not narrowly tailored, and 
not the least restrictive alternative and, therefore, was 
unconstitutional under the First Amendment.
  The Court of Appeals for the Ninth Circuit reversed saying there was 
an ample record to support the legislative enactment.
  On June 1 of this year, 20 days ago, the Supreme Court of the United 
States denied an application to vacate the stay. The Court of Appeals 
for the Ninth Circuit had stayed the decision of the district court so 
that the Arizona elections could go forward pursuant to the Arizona 
Citizens Clean Elections Act.
  When the Ninth Circuit heard the case, the Ninth Circuit issued a 
stay that stopped the carrying out of the district court decision on 
unconstitutionality so that the elections in Arizona this year could 
proceed under that act. The losing parties in the Ninth Circuit 
decision then applied to the Supreme Court to eliminate the stay so the 
district court opinion would remain in effect.
  The Supreme Court, on June 1, denied the application to vacate the 
stay ``without prejudice to a renewed application if the parties 
represent that they intend to file a timely petition for a writ of 
certiorari.''
  A week later, the Court reversed course and granted the application 
to vacate the stay on the district court's injunction ``pending filing 
and disposition of a petition for writ of certiorari.''
  This is complex legalese, but what it does is reinstate the 
conclusion of the Federal district court in Arizona that the Arizona 
law is unconstitutional and may not be enforced.
  It is a little hard to fathom how the Court can do that without even 
the filing of a petition for a writ of certiorari.
  What we essentially have is the Supreme Court was deciding the 
Arizona case without the submission of a petition for a writ of 
certiorari, without following the rules of the Supreme Court for the 
filing of briefs, or without an argument before a decision was made. It 
has all the earmarks of a flagrant denial of due process of law.
  It is true technically that the Supreme Court may reverse and remand 
and enter judgment as they choose. But in a contest where the 
procedures are established, in case after case the practice of the 
Court--you want to have the Supreme Court of the United States review a 
case? File a petition for writ of certiorari. Then you have to prepare 
a brief, then you appear before the Court for argument, and then the 
Court makes a determination, after hearing the case, what ought to be 
done.
  Here we have the Arizona elections disrupted by a conclusion of the 
Supreme Court of the United States. It is not even a judgment. It is a 
reinstatement of a stay.
  We have the Supreme Court of the United States today on issues of 
enormous importance--the election of Federal, State, and local 
officials, an Arizona law trying to deal in a sensible way with the 
problems of having candidates spend so much of their time on 
electioneering. A recent study showed those of us in Congress spent 
about 25 percent of our time on raising money. I think that is a fairly 
realistic estimate. I think I saw an affirmative nod from the Presiding 
Officer, the Senator from Virginia.
  I would say that is not much off the mark from my own experiences. My 
first campaign cost less than $2 million, and the last campaign cost 
some $23 million. We all have offices away from our office so we comply 
with the law which prohibits us from making telephone calls to raise 
money or undertaking any of it on Federal property. It takes a lot of 
time.
  We have a number of former Members of Congress who are in jail today 
across this land, and we have a lot of public skepticism about the 
influence of money on congressional decisions. We had eight Members of 
the House of Representatives in one of the Hill newspapers last week 
about an investigation of a House Ethics Committee where there was an 
appearance of some issue where votes were changed in the wake of 
campaign contributions.
  Here we have the Supreme Court eliminating the Arizona law without 
even having a hearing in the case but reinstating the stay. That is a 
subject I intend to ask Nominee Kagan about next week.
  I have submitted a series of letters to Solicitor General Kagan, one 
dated May 25, one dated June 15, and I am sending another one today, 
and I ask unanimous consent to have printed in the Record the full text 
of these letters.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                  U.S. Senate,

                                     Washington, DC, May 25, 2010.
     Hon. Elena Kagan,
     Solicitor General of the U.S.,
     Washington, DC.
       Dear Solicitor General Kagan: At our meeting on February 4, 
     2009, your confirmation for Solicitor General was pending 
     before the Senate. We discussed, among other things, two 
     cases that raise important questions about Executive-branch 
     incursions on Congress's law-making powers with respect to 
     the jurisdiction of the lower federal courts: Weiss v. 
     Assicurazioni Generali, S.P.A. (hereafter Generali), 529 F.3d 
     113 (2d Cir. 2010), and In re Terrorist Attacks on September 
     11, 2001, 538 F.3d 71 (2d Cir. 2008), cert. denied, 129 S. 
     Ct. 2859 (2009) (hereafter 9/11 Litigation). I write to 
     notify you of the topics I intend to cover at your upcoming 
     confirmation hearing with respect to these and related cases.


                     Holocaust Litigation (Generali)

       This litigation was brought by victims of the Holocaust and 
     their heirs to recover on unpaid World War II-era insurance 
     policies issued by an Italian insurance company. Just a few 
     months ago, the United States Court of Appeals for the Second 
     Circuit affirmed the dismissal of the plaintiffs' claims on 
     the ground that they were preempted by an Executive-branch 
     foreign policy favoring the resolution of such claims through 
     an international commission. The Second Circuit did so in 
     reliance on the Supreme Court's decision in American 
     Insurance Association v. Garamendi, 539 U.S. 396 (2003). 
     There the Court held that this policy, though not formalized 
     in an executive agreement or treaty, preempted a state law 
     requiring insurers to disclose information about certain 
     Holocaust-era insurance policies. The Court relied on cases 
     addressing the preemptive effect of executive agreements 
     purporting to settle claims of private litigants in federal 
     courts. A post-Garamendi development of

[[Page S5175]]

     note is the Court's decision in Medellin v. Texas, 552 U.S. 
     491 (2008), where the Chief Justice suggested that the 
     executive branch could settle claims by executive agreement 
     only in the face of acquiescence by Congress.
       I intend to ask you, among other questions:
       (1) whether you understand the Supreme Court's case law to 
     require a finding of Congressional acquiescence as a 
     condition of giving preemptive effect to an executive 
     agreement;
       (2) whether you agree with Justice Ginsburg's dissenting 
     opinion in Garamendi (joined by Justices Stevens, Scalia and 
     Thomas) that an Executive-branch foreign policy not 
     formalized in a treaty or an executive agreement cannot 
     preempt state law; and
       (3) what considerations you would bring to bear in deciding 
     whether to vote to grant certiorari in this case, if 
     confirmed. (My office has been advised that a petition for 
     certiorari will be filed soon.)


                            9/11 Litigation

       This litigation was brought by over 6,000 victims of the 
     September 11 terrorist attacks against, among other 
     defendants, the Kingdom of Saudi Arabia and five Saudi 
     princes. The plaintiffs pleaded various claims arising from 
     their allegation that the defendants financed the attacks. 
     None of these defendants, though, ever had to defend the case 
     on the merits. The United States Court of Appeals for the 
     Second Circuit ruled that they were immune from suit under 
     the Foreign Sovereign Immunities Act (FSIA). The plaintiffs 
     petitioned the Supreme Court for certiorari. You filed a 
     brief on behalf of the United States urging the Supreme Court 
     to deny the petition. The New York Times reported that your 
     filing came less than a week before President Obama's trip to 
     the Middle East to meet with Saudi Arabia's King Abdullah. 
     See Eric Lichtblau, ``Justice Department Backs Saudi Royal 
     Family on 9/11 Lawsuit,'' New York Times, May 30, 2009. The 
     Court denied the petition.
       One of the two key questions in the petition was whether, 
     as the Second Circuit had held, the FSIA addressed the 
     immunity of the Saudi officials. There is, as you 
     acknowledged in your brief, a circuit split on the question: 
     Some circuits have concluded that the FSIA governs the 
     immunity of foreign officials, as distinct from foreign 
     states. Others have concluded that their immunity is governed 
     by non-statutory principles articulated by the Executive 
     branch. The United States argued that the split was not 
     worthy of the Court's review because the ``disagreement 
     appears to be of little practical consequence.'' In earlier 
     cases, however, the United States argued repeatedly that the 
     distinction is indeed of practical consequence in numerous 
     respects. And you have since filed a brief on behalf of the 
     United States in Samantar v. Yousuf (No. 08-1555) urging the 
     Court to hold that the FSIA does not displace ``principles 
     adopted by the Executive branch'' governing the immunity of 
     foreign officials.
       The second of the questions raised was whether the 
     defendants could be sued under the FSIA's domestic tort 
     exception. That exception permits suits against sovereigns 
     arising from injuries ``occurring in the United States and 
     caused by the tortuous act or omission of the foreign 
     state.'' 28 U.S.C. 1605(a)(5). You argued in your brief that 
     the exception did not apply.
       I intend to ask you, among other questions:
       (1) whether you would have voted to grant certiorari in the 
     9/11 Litigation had you been sitting on the Court;
       (2) whether the United States may have placed diplomatic 
     concerns above the rights of 9/11 victims in urging the Court 
     not to grant certiorari;
       (3) whether the FSIA governs all questions of sovereign 
     immunity in the federal courts; and
       (4) whether you believe that the FSIA's tort exception 
     should have been interpreted to confer immunity on the 
     defendants.
       At our meeting on May 13, 2010, when we discussed your 
     confirmation for the Supreme Court, we discussed, among other 
     things, the constitutionality of the Terrorist Surveillance 
     Program (TSP), which brought into sharp conflict Congress's 
     authority under Article I to establish the `exclusive means' 
     for wiretaps under the Foreign Intelligence Surveillance Act 
     with the President's authority under Article II as Commander-
     in-Chief to order warrantless wiretaps.
       The TSP operated secretly from shortly after 9/11 until a 
     New York Times article detailed the program in December 2005. 
     In August 2006, the United States District Court for the 
     Eastern District of Michigan found the program 
     unconstitutional. In July 2007, the Sixth Circuit reversed 2-
     1, finding lack of standing. The Supreme Court then denied 
     certiorari.
       The dissenting opinion in the Sixth Circuit demonstrated 
     the flexibility of the standing requirement to provide the 
     basis for a decision on the merits. As Judge Gilman noted, 
     ``the attorney-plaintiffs in the present case allege that the 
     government is listening in on private person-to-person 
     communications that are not open to the public. These are 
     communications that any reasonable person would understand to 
     be private.'' After analyzing the standing inquiry under a 
     recent Supreme Court decision, Judge Gilman would have held 
     that ``[the attorney-plaintiffs have thus identified concrete 
     harms to themselves flowing from their reasonable fear that 
     the TSP will intercept privileged communications between 
     themselves and their clients.''
       I intend to ask you, among other questions, whether you 
     would have voted to grant certiorari in this case had you 
     been on the Supreme Court.
           Sincerely,
     Arlen Specter.
                                  ____



                                                  U.S. Senate,

                                    Washington, DC, June 15, 2010.
     Hon. Elena Kagan,
     Solicitor General of the United States,
     Washington, DC.
       Dear Solicitor General Kagan: By letter dated May 25, 2010, 
     I identified three subjects that I intend to cover at your 
     confirmation hearing. I write to identify four additional 
     subjects that I intend to cover.
     The Supreme Court's workload
       The Supreme Court's workload has steadily declined. In 
     1870, the Court decided 280 of the 636 cases on its docket; 
     in 1880, 365 of the 1,202 cases on its docket; and in 1886, 
     451 of the 1,396 cases on its docket. In 1926, the year 
     Congress gave the Court nearly complete control of its docket 
     by passing the Judiciary Act of 1925, the Court issued 223 
     signed opinions. The Court's output has declined 
     significantly ever since. In the first year of the Rehnquist 
     Court, the Court issued 146 opinions; in its last year, it 
     issued only 74.
       Chief Justice Rehnquist's successor, John Roberts, 
     testified during his confirmation hearing that the Court 
     could and should take additional cases. But the Court has not 
     done so. During the 2005 Term, it heard argument in 87 cases 
     and issued 69 signed opinions; during the 2006 Term, it heard 
     argument in 78 cases and issued 68 signed opinions; during 
     the 2007 Term, it heard argument in 75 cases and issued 67 
     signed opinions; and during the 2008 Term, the Court heard 
     argument in 78 cases and issued 75 signed opinions. The 
     figures for the pending 2009 term will likely be in accord.
       The Court continues to leave important issues unresolved. 
     They include, as noted in my May 25 letter, the 
     constitutionality of the Bush administration Terrorist 
     Surveillance Program (TSP) and the contours of the Foreign 
     Sovereign Immunity Act's domestic tort exception as applied 
     to acts of terrorism.
       Equally significant are unresolved circuit splits. Two 
     prominent academic commentators note that the Roberts Court 
     ``is unable to address even half'' of the circuit splits 
     ``identified by litigants.'' Tracey E. George & Christopher 
     Guthrie, Remaking the United States Supreme Court in the 
     Courts' of Appeals Image, 58 Duke L.J. 1439, 1449 (2009). 
     Questions on which the circuits have split include: May 
     jurors consult the Bible during their deliberations in a 
     criminal case and, if so, under what circumstances? Must a 
     civil lawsuit predicated on a ``state secret'' be dismissed? 
     When may a federal agency withhold information in response to 
     a FOIA request or subpoena on the ground that it would 
     disclose the agency's ``internal deliberations''? Do federal 
     district courts have jurisdiction over petitions to expunge 
     criminal records?
       I intend to ask you, among other questions:
       (1) Whether you agree with the Chief Justice Roberts's 
     statement at his confirmation hearing that the ``Court could 
     contribute more to clarity and uniformity of the law by 
     taking more cases;''
       (2) Whether the Court has the capacity to hear 
     substantially more cases than it has in recent years;
       (3) Whether you favor reducing the number of Justices 
     required to grant petitions for certiorari in cases involving 
     circuit splits or otherwise; and
       (4) Whether, if you are confirmed, you will join the 
     Court's cert. pool or follow the practice of Justice Stevens 
     (and the Justice for whom you clerked, Justice Thurgood 
     Marshall) in reviewing petitions for certiorari yourself with 
     the assistance of your law clerks?
     Deference to Congressional factfinding in reviewing the 
         constitutionality of federal legislation
       The constitutionality of federal legislation often turns on 
     how much deference the Supreme Court gives to justificatory 
     factual findings made by Congress. Recent nominees to the 
     Court have emphasized that such findings are entitled to 
     substantial deference. Chief Justice Roberts was especially 
     emphatic on the point. He even testified that when a judge 
     finds himself ``in a position of re-evaluating legislative 
     findings,'' he or she ``may be beginning to transgress into 
     an area of making law. . . .''
       In too many cases during the last decade, however, the 
     Court has disregarded Congressional findings of fact to an 
     unprecedented degree. The most recent example was Citizens 
     United v. Federal Election Commission, 130 S. Ct. 876 (2010), 
     where in striking down the federal ban on independent 
     campaign expenditures by corporations, the Court disregarded 
     what Justice Stevens called in dissent a ``virtual mountain 
     of evidence'' assembled by Congress establishing the 
     corrupting influence of such contributions on the political 
     process. And the Court did so, again in Justice Stevens' 
     words, ``without a shred of evidence'' as to how the 
     challenged provision ``have been affecting any entity'' other 
     than the petitioner in the case.
       The Court's disregard of Congressional factfinding has been 
     especially pronounced in cases striking down laws enacted to 
     remediate civil rights violations (whether under

[[Page S5176]]

     the commerce clause or the Fourteenth Amendment to the 
     Constitution). These included two cases about which I have 
     questioned prior nominees to the Court: (1) United States v. 
     Morrison, 529 U.S. 598 (2000), which struck the provision of 
     the Violence Against Women Act providing a federal civil 
     remedy for victims of sex-based violence, despite 
     Congress's well-documented findings of relevant 
     constitutional violations nationwide; and (2) Board of 
     Trustees of the University of Alabama v. Garrett, 531 U.S. 
     356 (2001), which struck the provision of the Americans 
     With Disabilities Act prohibiting disability-based 
     discrimination in employment by states, despite Congress's 
     compilation (in the dissenter's words) of ``a vast 
     legislative record,'' based on task force hearings 
     attended by more than 30,000 people, ``documenting 
     `massive, society-wide discrimination' against persons 
     with disabilities.'' As I noted in pre-confirmation-
     hearing letters to Chief Justice Roberts and Justice 
     Sotomayor, the Court in Morrison even went out of its way 
     to disparage Congress's fact-finding competency. Justice 
     Souter noted in a dissent joined by three other Justices 
     that the Court had departed from its longstanding practice 
     of assessing no more than the ``rationality of the 
     congressional [factual] conclusion[s].''
       Chief Justice Roberts's statements during oral argument in 
     Northwest Austin Municipal District v. Holder, 129 S. Ct. 
     2504 (2009), may portend even worse things to come. The case 
     concerned the constitutionality of a key section of the 
     Voting Rights Act that Congress extended (by a Senate vote of 
     98 to 0) for another 25 years during my chairmanship of the 
     Judiciary Committee. Ultimately the Court avoided the 
     constitutional question in Northwest Austin by deciding the 
     case on narrow statutory grounds. But during oral argument, 
     Chief Justice Roberts called into question the validity of 
     Congress's legislative findings as to the need for the 
     reauthorization. He said that, in extending the Act, 
     ``Congress was sweeping far more broadly than they need to.''
       I intend to ask you, among other questions, whether you 
     think that the Court has been sufficiently deferential to 
     Congressional factfinding and whether you would go about 
     analyzing the sufficiency of the record underlying the 
     reauthorization of the Voting Rights Act.
     Television coverage of the Supreme Court
       Although the public has the undisputed right to observe the 
     Court's proceedings, few Americans have any meaningful 
     opportunity to do so. Even those who are able to visit the 
     Court are not likely to see an argument in full. There are 
     not nearly enough seats. Most will be given just three 
     minutes to watch before they are shuffled out to make room 
     for others. In high-profile cases, most visitors will be 
     denied even a three-minute seating. As Justice Stevens 
     observed during an interview, ``literally thousands of people 
     have stood in line for hours in order to attend an oral 
     argument, only to be denied admission because the courtroom 
     was filled.'' Those who wish to follow the Court's 
     proceedings must content themselves with reading the 
     voluminous transcripts or listening to audiotapes released at 
     the end of the Court's term. (The Court regularly denies, 
     without explanation, requests to release the audiotapes of 
     oral argument on a same-day basis.) It should come as no 
     surprise that, according to a recent poll taken by C-SPAN, 
     nearly two-thirds of Americans favor television coverage of 
     the Supreme Court's proceedings.
       In April 2010, the Senate Committee favorably reported both 
     my resolution (S. Res. 339) expressing the sense of the 
     Senate that the Court should permit television coverage and 
     my legislation (S. 446) requiring it to allow coverage. In 
     the last two Congresses, the Committee favorably reported 
     nearly identical legislation (S. 1768 in the 109th Congress 
     and S. 344 in the 110th Congress) that I introduced.
       Statements made by the current Justices indicate that a 
     majority of them--Chief Justice Roberts, Justices Stevens, 
     Ginsburg, Breyer, Alito, and Sotomayor--are favorably 
     disposed toward allowing coverage or at least have an open 
     mind on the matter. Justice Stevens, whom you would replace, 
     has said that allowing cameras in the Supreme Court is 
     ``worth a try.''
       Your past statements suggest that you are a proponent of 
     coverage. Soon after becoming Solicitor General, you told the 
     Ninth Circuit Judicial Conference that ``if cameras were in 
     the courtroom, the American public would see an extraordinary 
     event. . . . When C-SPAN first came on, they put cameras in 
     legislative chambers. And it was clear that nobody was there. 
     I think if you put cameras in the courtroom, people would 
     say, `wow.' They would see their government working at a 
     really high level--at a really high level. That is one 
     argument for doing so.''
       I intend to ask you whether, if confirmed, you will support 
     television coverage and, if you will, whether you will try to 
     persuade your reluctant colleagues to do likewise.
     Constitutionality of regulation of campaign finance
       In Citizens United v. Federal Election Commission, 130 S. 
     Ct. 876 (2010), the Supreme Court held unconstitutional 
     provisions of federal law prohibiting corporations and unions 
     from making certain independent campaign expenditures in 
     support of candidates for federal office, thereby putting 
     corporations on the same footing as individuals (including 
     citizens). Some organizations opposed to campaign-finance 
     reform have heralded Citizens United as the beginning of the 
     end of campaign finance regulation. The next step, according 
     to the policy briefs of these organizations, is to challenge 
     the prohibition on corporate campaign contributions and, in 
     doing, attempt to eliminate the remaining case-law 
     distinctions between the speech rights of individual natural 
     persons and of corporations. Under existing federal law, 
     corporations may not make campaign contributions. (They may 
     do so only through tightly regulated PACs.) The Supreme Court 
     has upheld this restriction against First Amendment 
     challenge.
       Some organizations have even advocated an end to limits on 
     campaign contributions--as distinct from campaign-related 
     expenditures--by individuals. In Buckley v. Valeo, 424 U.S. 1 
     (1976), the Supreme Court upheld limits on contributions by 
     individuals, even as it struck down a provision of federal 
     law prohibiting independent expenditures in support of 
     candidates for office. The Court accepted Congress's finding 
     that allowing ``large individual financial contributions'' 
     threatens to corrupt the political process and undermine 
     public confidence in it. Buckley's holding on this point has 
     been well-settled law for nearly 35 years.
       I intend to ask you, among other questions:
       (1) Whether, under First Amendment law, there remains 
     anything left of the distinction between contributions from a 
     corporation and those from natural persons.
       (2) What considerations would you bring to bear in deciding 
     whether to overrule the portion of Buckley v. Valeo, 424 U.S. 
     1 (1976), upholding limits on campaign contributions by 
     individuals?
       Sincerely,
     Arlen Specter.
                                  ____

                                                    June 21, 2010.
     Hon. Elena Kagan,
     Solicitor General of the United States,
     Washington, DC.
       Dear Solicitor General Kagan: By letters dated May 25, 
     2010, and June 15, 2010, I identified several subjects I 
     intend to cover at your nomination hearing. I write to 
     identify in advance an additional subject that I intend to 
     cover.
     Constitutionality of State Provisions for Publicly Financed 
         Campaign Matching Funds
       In the wake of Davis v. FEC, _ U.S. _, 130 S.Ct. 876 
     (2008), a district court in Arizona struck down that state's 
     provision, passed by popular voter referendum, to trigger 
     matching public funds when a candidate's opponent expended 
     certain threshold amounts in a primary election. In McComish 
     v. Brewer, 2010 WL 2292213, *1 (D. Ariz. 2010), the district 
     court held that Arizona's ``Citizens Clean Elections Act'' 
     was not supported by a compelling state interest, was not 
     narrowly tailored, and was not the least restrictive 
     alternative. Hence, the district court held the Act was 
     ``unconstitutional under the First Amendment.'' Id. at 10.
       The Court of Appeals for the Ninth Circuit reversed. In 
     McComish v. Bennett, 605 F.3d 720 (9th Cir. 2010), the 
     intermediate appellate court wrote, ``Plaintiffs bemoan that 
     matching funds deny them a competitive advantage in 
     elections. The essence of this claim is not that they have 
     been silenced, but that the speech of their opponents has 
     been enabled.'' The court noted that ``the burden that 
     Plaintiffs allege is merely a theoretical chilling effect on 
     donors who might dislike the statutory result of making a 
     contribution or candidates who may seek a tactical advantage 
     related to the release or timing of matching funds.'' 
     Describing this burden as ``minimal,'' the court applied 
     intermediate scrutiny to the Act. Thereafter, the court 
     considered whether Arizona's interest ``in eradicating the 
     appearance of quid pro quo corruption to restore the 
     electorate's confidence in its system of government'' was 
     compelling. Quoting the Supreme Court's decision in Buckley 
     v. Valeo, 424 U.S. 1, 96 (1976) the Ninth Circuit recalled 
     that ``[i]t cannot be gainsaid that public financing as a 
     means of eliminating the improper influence of large private 
     contributions furthers a significant governmental interest.''
       On June 1, 2010, the Supreme Court denied the application 
     to vacate the stay ``without prejudice to a renewed 
     application if the parties represent that they intend to file 
     a timely petition for writ of certiorari'' to the Court. _ 
     S.Ct. _, 2010 WL 2161754 (Jun 1, 2010). A week later, the 
     Court reversed course and granted the application to vacate 
     the stay on the District Court's injunction ``pending filing 
     and disposition of a petition for writ of certiorari.'' _ 
     S.Ct. _, 2010 WL 2265319 (Jun 8, 2010). The practical effect 
     of the Supreme Court vacating the appellate court's stay of 
     the district court's injunction is that Arizona's Citizens 
     Clean Elections Act is, for present purposes, struck down and 
     participating candidates are not going to receive matching 
     funds even if their opponents exceed the triggering 
     expenditures.
       I intend to ask you, among other questions:
       (1) Whether you would have voted to vacate the stay pending 
     disposition of a petition for certiorari, as five justices 
     appear to have voted in McComish v. Bennett; and
       (2) Whether you think that reducing the appearance or 
     reality of quid pro quo corruption serves a compelling state 
     interest.
           Sincerely,
                                                    Arlen Specter.

  Mr. SPECTER. Mr. President, a good bit of the substance of the 
questions

[[Page S5177]]

which I have been directing toward Solicitor General Kagan involves the 
question as to whether she would have voted to grant cert. I believe 
that is an appropriate question, whether she would agree that a case 
ought to be heard. There is a view that questions ought not to be asked 
as to what a nominee would do once a case is pending before the Court. 
I think even that doctrine has some limitations. I think cases such as 
Brown v. Board of Education, cases such as McCulloch v. Maryland, cases 
which are well established in the law of the land, ought to be the 
subject for commitment. But I think there is no doubt--in my opinion, 
there is no doubt--we should ask her whether she would take a case such 
as the Terrorist Surveillance Program, or a case such as the litigation 
involving the claims brought by the survivors of victims of 9/11.
  The hearings next week on Solicitor General Kagan will give us an 
opportunity to move deeply into a great many of these important 
subjects. While it is true that in many instances we do not get a great 
deal of information from the nominees, I think the hearings are very 
important to inform the public as to what goes on with the Court. This 
is in line with the efforts which I have made to provide for 
legislation which would call for televising the Supreme Court. The 
Judiciary Committee has twice passed out of committee, by significant 
votes--once 12 to 6 and once 13 to 6--legislation which would call for 
the Supreme Court to be televised.
  The Congress of the United States has the authority to make 
directives on administrative matters--things such as how many Justices 
constitute a quorum, when they begin their term, how many members there 
are of the Supreme Court. Congress has the authority to mandate what 
cases the Supreme Court will hear, and--in the cases which I intend to 
ask Solicitor General Kagan, such as the terrorist surveillance 
program--whether she would have granted cert.
  There are underlying concerns, which I have raised today, of a 
certain disrespect which characterizes a good many of the Supreme Court 
opinions. For example, the opinion by Chief Justice Rehnquist in 
striking down the legislation protecting women against violence, 
notwithstanding a very voluminous record--a radical change in the 
interpretation of the Commerce Clause--where the Court, through Chief 
Justice Rehnquist, said that the Court disagreed with Congress's 
``method of reasoning.''
  It is a little hard to understand how the method of reasoning is so 
much improved when you move across the green from the Judiciary 
Committee hearing room past confirmation; or where you have the 
language used by Justice Scalia--and I have quoted some of it earlier--
in the case of Tennessee v. Lane, where Justice Scalia had objected to 
the congruence and proportionality standard, which he said was a flabby 
test and a standing invitation to traditional arbitrariness and policy 
decisionmaking.
  Then he went on to criticize his colleagues for, as Justice Scalia 
said, inappropriate criticism of an equal branch. This is what he had 
to say about the proportionality and congruent standard

       .Worse still, it casts this court in the role of Congress's 
     taskmaster. Under it, the courts--and ultimately this Court--
     must regularly check Congress's homework to make sure that it 
     has identified sufficient constitutional violations to make 
     its remedy congruent and proportional. As a general matter, 
     we are ill-advised to adopt or adhere to constitutional rules 
     that bring us into constant conflict with the coequal branch 
     of government. And when such conflict is unavoidable, we 
     should not come to do battle with the United States Congress 
     armed only with a test of congruence and proportionality that 
     has no demonstrable basis in the text of the Constitution and 
     cannot objectively be shown to have been met or failed.

  So that is fairly strong language in disagreeing with what the Court 
has done in establishing the test. And Justice Stevens minced no words 
in his criticism of Citizens United in saying that the decision by the 
Supreme Court showed a disrespect for Congress. There the Court, in 
Citizens United, overruled both McConnell v. Federal Elections 
Commission and the Austin case. Overruling Austin was very significant, 
Justice Stevens noted, because Congress specifically relied on that 
decision in drafting McCain-Feingold. Justice Stevens then said that 
pulling out the rug beneath Congress in this matter ``shows great 
disrespect for a coequal branch.''
  Well, my colleagues, the Congress has an opportunity to assert 
itself, to demand the appropriate respect which the Constitution calls 
for and has been implemented under the doctrine of separation of 
powers. We can find ways to make sure that commitments about respected 
congressional fact-finding will be observed, or that the rule of stare 
decisis will be respected; that when there are major decisions coming 
before the Supreme Court of the United States which involve the power 
of Congress vis-a-vis the executive branch, that those decisions will 
be made.
  So let's sharpen our lines of questioning, colleagues, as we move 
forward to the hearings on Solicitor General Kagan a week from today.
  I thank the Chair, and I yield the floor.
  I had noticed my colleague standing there. I hope I haven't kept him 
waiting too long.
  Mr. BUNNING. The Senator can speak all he likes.
  Mr. SPECTER. I thank the Chair.
  The PRESIDING OFFICER. The Senator from Kentucky.

                          ____________________