Kagan confirmation hearing transcript - June 28, 29, 30, 2010

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TRANSCRIPT: The Elena Kagan Hearings - June 28, 29 and 30, 2010
[This file was compiled July 3 from files made available by The Washington Post]



JUNE 28, 2010






LEAHY: Good afternoon. Welcome. Everybody here, just so you know, the procedure -- Senator Sessions and I have -- have discussed this. We're going to recognize senators in order of seniority going -- 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'd urge senators to stay -- in fact, we're going to have to stay within the 10 minutes, just simply to keep on schedule.

And, 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 has -- will change slightly our schedule this week is the death of Senator Byrd. All of us -- I believe it is safe to say both Republicans and Democratic senators are saddened by his death.

No senator came to care more about the Constitution and be a more effective defender 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 don't know how many -- how many times we saw Senator Byrd hold up the 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, but number of votes cast. I know 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 a discussion about the Senate and its rules or about the issue of the moment, or about our families.

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 an 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 10th justice.

I believe we're a better country for the path -- 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 our 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 and 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 '64 and the Voting Rights Act of '65, 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 was included -- 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, Medicaid, Congress ensured that growing old no longer means growing poor and that being older or poor no longer means being without medical care. The progress continues today; we're better for it.

Now, the 100 members of 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 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're talking about congressional authority to pass laws to ensure protection of our communities from natural and manmade 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 seniors.

Now, I reject the ideological litmus tests 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, 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've urged her privately, to be open, 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.

LEAHY: 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'd urge senators on both sides to be fair. There is no basis to question her integrity. No one should presume that this intelligent woman who's excelled during every part of her varied and distinguished career lacks independence.

And it is essential that judicial nominees understand that as judges they're not members of any administration. The courts are not subsidiaries of any political party or interest groups, and our judges should not be partisans.

That's 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.

And it's 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 development 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 past 220 years. I hope that Elena Kagan will demonstrate through this hearing she'll 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'll put the rest of my statement in the record.

And, Senator Sessions?

SESSIONS: Thank you, Mr. Chairman.

I would like to join you in recognizing the special moment of the loss of Senator Byrd, who's 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. He wanted ours to be the greatest ever.

And I remember one day he gave a speech on a Friday morning that I heard in which he complained about textbooks and their failure to distinguish between a republic and a democracy. He went on at some length demonstrating that and then called them touchy-feely twaddle.

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 and your family and 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's not a coronation, as I've 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's 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 nine 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 better -- a better job of justifying their activism.

President Obama's nominee has stated her -- started her political career in earnest as a staffer on the presidential campaign of Michael Dukakis. She took leave from teaching at a 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 -- justices -- on the Supreme Court.

I know -- I know you will join with me, Mr. Chairman, expressing our sympathy to Justice Ginsburg on the loss of her husband also.

LEAHY: A wonderful man.

SESSIONS: Professor Kagan left teaching law to spend five years at the center of politics, working in the Clinton White House, doing, as she described it, mostly policy work.

Policy is quite difference 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 courageous 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 can't take this issue lightly.

Dean Kagan also joined with three over 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 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 of 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 9th 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 activist, and she has called Israeli Judge Aharon Barak, who has been described as the most activist judge in the world, as her hero.

SESSIONS: These judges really don't deny their activist ideas. They advocate them 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've 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 healthcare 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's 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.

LEAHY: Thank you very much.

We'll go next to Senator Kohl, and then we'll go to Senator Hatch.

Senator Kohl?

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. You judicial philosophy is almost invisible to us.

We don't 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, quote, "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 shape 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 dialogue 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, quote, "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, quote, "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.

LEAHY: Thank you very much, Senator Kohl.

Senator Hatch?

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.

HATCH: 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 wasn't very happy with me, and frankly, I wasn't very happy with him, either. But in the end, I gained such tremendous respect for him and love, in a -- 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 from. And 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 -- 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've 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 two years in a law firm. The rest of her career is in academia -- academia and -- and politics. As The Washington Post described it, she brings experience, quote, "in the political circus that often defines Washington," unquote.

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 American 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 courts 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 judges -- 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 in a hearing like this.

Without this information, Ms. Kagan has written, the Senate, quote, "becomes incapable of either properly evaluating nominees or appropriately educating the public," unquote.

Now, Ms. Kagan identified the critical inquiry about a Supreme Court nominee as, quote, "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 too results-oriented, so be it," unquote.

Now, Ms. Kagan outlined that approach, which she argued as necessary for Supreme Court confirmation hearings to be more than "vacuity 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'll hear a lot about your remarks in the past in 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'm 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 federal address, quote, "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, until changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all," unquote.

The people's right to make and alter the Constitution means nothing if the people choose the Constitution's words; the 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.

And 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.

LEAHY: Thank you very much, Senator Hatch. Senator Feinstein?

FEINSTEIN: Thank you very much, Mr. Chairman. And I'd like to begin with a word about Senator Byrd.

I've 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's welcome Solicitor General Elena Kagan.

Over the past few weeks, there has been a driftnet out trying to find some disqualifying fact or factor in your record. But to date, I don't 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're 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's required in statute to be, quote, "learned in the law," end quote. 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 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 adviser 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 were a valuable adviser, smart, reasonable, highly respected, principled.

You also served as a special counsel to this committee during the Ginsburg confirmation hearings.

FEINSTEIN: The biggest criticism I've seen out there is that you've 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 courts 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 include 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 attorney before -- a 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 value 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's 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's 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. the 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 -- the District of Columbia v. Heller -- have essentially disregarded the precedent of 71 years embedded in the 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 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 nominee -- 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.

LEAHY: Thank you very much, Senator Feinstein.

And I also thank senators in keeping under the timeline, which means we're ahead of schedule.

Senator Grassley?

GRASSLEY: Thank you, Mr. Chairman.

General Kagan, congratulations on your nomination. It's an extremely important appointment, obviously a real honor.

I also welcome your family and friends. They're obviously proud of your nomination, and I'm glad that they're here to support you.

I'm 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've 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 and our system of government. We want to ensure that, if confirmed, you'll 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've excelled at Princeton University, Harvard Law School. You were an Oxford scholar. You clerked on the D.C. Circuit in the Supreme Court. You were a law professor at 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're now United States solicitor general.

Nobody can -- can question such accomplishments. What is lacking from your background is any experience on any court or much experience as a practicing lawyer. We don't 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'll need to acquire that evidence through your writings and the positions you've 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'll 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's our duty to confirm a nominee who has superior intellectual abilities, but more importantly, it's our duty to confirm a nominee who won't come with a results-oriented philosophy or an agenda to impose his or her personal politics and preferences from the bench. It's our duty to confirm a Supreme Court nominee who will faithfully interpret the law and Constitution without personal bias.

The fact that you've been a judge is not dispositive. But because of lack of judging experience, it's even more critical that we're 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've been a political lawyer. Your papers from the Clinton Library have been described as -- and these aren't my words -- a flare for the political and a flare for political tactics. You've been described as having, quote -- another quote, "finely tuned political antenna" 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, Whitewater, and Paula Jones controversies.

GRASSLEY: 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. You should know -- or we should know whether, as you've said, you have, quote, "retained them fairly intact to this date," end of quote.

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 isn't as constrained to follow precedent as the same extent as judges of lower courts. You will have the final say on the law.

You've been a prominent member of the President Obama's team. In nominating you to be an associate justice, President Obama clearly believes that you measured up to his political -- or 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, quote, "reminding you that behind the law there are stories -- stories of people's lives shaped by the law, stories of people's lives as might be changed by the law," end of quote.

This empathy standard has been soundly rejected because it endorses the application of personal politics, a preference when -- and preferences when judges decide. 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 judicial method. We all know that's not what our great American tradition envisioned for a role of the judiciary.

I'll be asking you about your judicial philosophy, whether you will allow biases and personal preferences to dictate your judicial standard. You once wrote that it, quote, "is not necessarily wrong or invalid for judges to," again quote, "try to mold or steer the law in order to promote certain ethical values and achieve certain social ends," end of quote.

You've also praised jurists who believe that the role of a judge is to, quote, "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've 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.

ACTING CHAIRMAN: Without objection.

Senator Feingold?

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 on 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'm particularly pleased that you joined with the ranking member to request a complete and timely search of presidential archives so that as much 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're beginning the fourth Supreme Court confirmation hearing in the last five 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've come a long way from the days when Justice Ginsburg was turned down for a prestigious clerkship because she was a woman or when 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'm pleased that the court is beginning to reflect that fact.

I also hope that we'll continue to see greater diversity on the court in other ways, including representation from Midwestern and Western states. It's 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 comes. 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's 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 can't 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're confirmed, I hope you'll keep this in mind. I hope you'll 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's a skill that will prove to be very useful and valuable if you are confirmed.

You also have an impressive education. You've worked at the highest levels of government. And you've 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's my hope is that your diverse experiences, your thoughtfulness and openness, 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 isn't easy. It's 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.

FEINGOLD: In these hearings, you'll 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.

LEAHY: Thank you very, very much, Senator Feingold.

Senator Kyl?

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's been three years now since an Arizonan has been on the Supreme Court.

LEAHY: I only -- I only confirm them. I don't pick them.

KYL: Mr. Chairman, one year ago, we sat in this same room to consider the nomination of then-Judge Sonia 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, a 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 two-year stint in private practice and one 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's 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 sign posts 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 relatively 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," end of quote.

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 -- 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's even possible that the good guys might win on this issue."

I'm 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 them and whether she sees anything wrong with taking the same approach. I see no evidence that that is the case.

In addition to 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'm 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'm convinced that, without the urging of her office, the court would not have granted cert in the case today.

Mr. Chairman, in conclusion, there's 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.

KYL: 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 she can be a fair and impartial justice rather than one who would have an outcome-based approach.

I look forward to her testimony.

LEAHY: Senator Specter?

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 -- a 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 in 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, 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 use 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 one day the committee would, quote, "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, Mapp, 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've had nominations who sat where you sit, not too long ago, who said they would not jolt the system; modesty; and then (inaudible) jolts (ph) to the system; assured this panel that the legislative finding of facts is not a judicial function, and then turned that on its head in Citizens United on a record that is 100,000 pages long, and finding that there's 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, as then Senator Obama said, quote, "overarching political philosophy," close quote.

Well, the presidents make their selections based on ideology. I think that's a blunt fact of life, and the deference that I had considered in earlier -- my earlier days in the Senate, I have come to the conclusion the senators have the same standing to make a determination on -- 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's 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 doesn't 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 a latitude to answer the question, so that even on the ultimate question of how a case will be decided -- and 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 -- 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 a nominees whether they would -- would take cases. I spoke at length on the floor about what I consider the inappropriate decline of a number of cases considered.

One hundred years ago, or a little more, in 1886, the Supreme Court decided 146 cases, 146 opinions; a little more than 20 years ago, in 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 was something I discussed with you in our meeting, 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 involving 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's to be handled. I think that's wrong. But at least the Supreme Court ought to decide it.

I'm 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, petitioned for cert from the Second Circuit. The Second Circuit said, well, the sovereign immunities case doesn't apply because Saudi Arabia hadn't been declared a terrorist state. That's really got nothing to do with the act, congressional intent; torts are not governed by sovereign immunity.

You disagreed with the Second Circuit that said the acts occurred outside of the country, a distinction that I don't understand. If the consequences of the trade towers and 3,000 Americans are killed, certainly the Sovereign Immunities Act ought to make Saudi Arabia subject to sue. But I wouldn't ask you how you'll decide the case, but -- but if you would take it up.

Another issue which won't 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.

SPECTER: And maybe the closest approach is the idea of televising. In our meeting, you said you 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.

LEAHY: Thank you very much.

Senator Graham?

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 remember, just a few years ago, we had a real -- 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.

I just want to acknowledge his passing is going to be 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's 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're 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 very little private practice, one year as solicitor general, and a lot of my colleagues on this side have talked about some of the positions you've taken that I think are a bit disturbing

But I'd like to acknowledge some of the things you have done as solicitor general that were I thought were very good. You opposed applying habeas rights to Bagram detainees. You supported the idea that a terror 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 will merit praise and I will certainly, from my point of view, give you a chance to discuss those.

As dean of Harvard Law School, did you 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's 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 got bipartisan support. The letter from Miguel Estrada is a humbling letter and I'm sure it will be mentioned throughout the hearings, but it says a lot about him. 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's no to 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'm 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've embraced liberal causes and you have grown up in a liberal household is something we need to talk about, but that's just America. It's OK to be liberal. It's OK to be conservative. But when it comes time to be a judge, you've 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're 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's a bit disturbing about his view of what a judge is supposed to do for society as a whole, but I'm sure you'll 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 with some real-world experience about what this country's 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 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 (sic) certainty is I don't expect your nomination to change the balance of power. After this hearing's over, I hope American -- the American people will understand that elections do matter. What did I expect from President Obama? Just about what I'm getting. And there are a lot of people who are surprised. Well, you shouldn't 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 becomes time to be a judge. That, to me, is your challenge. I think most people would consider you qualified because you've 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've engaged in politically and whatever advice you've 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're 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's OK to disagree with us up here. Thank you.

LEAHY: The -- thank you, Senator.

And next, Senator Schumer.

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 somebody -- fill a position on the third.

Well, welcome, Madam Solicitor General. There's 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've 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 had the opportunity to get to know General Kagan, and she's been very forthcoming in every way. I'm 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'd like to make. First, a confirmation hearing, no matter who's sitting in the chair over there, has the potential to be like eating spaghetti with a spoon. It's a lot of work and it's 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 a 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 vapid 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.

SCHUMER: She's 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 college -- as a college student, almost 200 speeches, and another 200 interviews. The only thing, as far as I can tell, that we don't have is her kindergarten report card.

But I respectfully submit to my colleagues that, if they can't 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 a 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'm 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 rend (ph) the very fabric of our democratic system.

I am concerned that we'll 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 workweek 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 backward towards 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 doesn't end with Citizens United. There's case after case after case which we could demonstrate. And in these cases, it's the American people who continue to bear the brunt of these types of rulings.

But there's 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 liked best is a practical one, of course. While serving as the first dean of Harvard Law School, a -- 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 some -- 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, she -- 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 already been discussed, but let's 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 more -- 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 job should be viewed as undermining her moderate credentials or calling her ability to understand the role of a 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 managed to -- she ran the equivalent of a large business, a budget of $160 million, 500 employees. She had to master interrelations (ph) 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-world 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.

LEAHY: Thank you very much.

Senator Cornyn?

CORNYN: Thank you, Mr. Chairman.

Solicitor General Kagan, welcome to these hearings, and congratulations to you and your family and -- and friends.

An e-mail came across my inbox this morning that I -- I thought of as I heard the statements being made on both sides here. It is a quote, "Liberty is not a cruise ship full of pampered passengers. Liberty is a man of war, and we're all the crew."

I don't know why I thought of that, given the nature of these hearings so far, but, of course, we'll be talking about the different roles we each play on that crew.

In the last five years, this committee has met four times to consider the nomination of a new Supreme Court justice. Given our recent hearings, I think it's 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've heard those terms thrown around a lot; I'll tell you what I mean by them, and we'll 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 a right to invent new -- has -- has authority to invent new rights just because the judge happens to think that it's a good idea. That's important, because the powers to make new laws are reserved to the people, not to judges, not even 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 doesn't mean that the meaning of the Constitution remains fixed. Indeed, the framers thought of this themselves in Article V.

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. Secondly, 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.

CORNYN: Under the activist vision, the Supreme Court feels free to change the Constitution when they see a problem they wish to solve. According to this view, the Constitution is a -- sometimes called a living document. It's 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 number 78, that the judiciary would be the, quote, "least dangerous branch," close 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 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, Ginsburg and Sotomayor, explained that their interpretation of the Constitution could change year to year and will, quote -- and, quote "will never stop," close 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 courts should make policy, like Congress, even though they're 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 (inaudible) itself up with their policy preferences?

Solicitor General Kagan, as you've heard and as you know, because you've never been a judge, what we do 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. Education.

But it's more about his judicial philosophy that concerns me, and this has already been mentioned. It's clear that he considered himself a judicial activist and was unapologetic about it. As we've already heard, he described his judicial philosophy as, quote, "Do what you think is right and let the law catch up," close quote.

Solicitor General Kagan, we know the president has the right to nominate anyone he chooses. It's noteworthy, however, that among his nominees, many of whom I have supported, President Obama has chosen several nominees that I cannot support because they're 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 it is -- 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's call it a confirmation conversion, have changed their tune after confirmation. Last year judge -- Justice Sotomayor came before the committee and pledged allegiance to the traditional view. She testified that judges can't rely on what's in their heart, they don't 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, have written 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's 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, 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 the path you would take if you were confirmed to the Supreme Court.

Again, I welcome you to the Senate and look forward to your testimony. Thank you.

LEAHY: Thank you, very much.

Senator Durbin?

DURBIN: Thank you a lot, Mr. Chairman.

And, General Kagan, welcome to you, your family, friends, and congratulations on your nomination.

This isn't 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've 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've mentioned from time to time. He said to Justice Ginsburg, "You face a much harsher judge than myself, even more harsh than this committee. It's the judgment of history. And that judgment is likely to revolve around the question, 'Did she restrict freedom or did she expand it?'"

It's a simple calculus. It was for Senator Simon; it is me as well. I used the standard and asked the same question of Justices Alito, Roberts and Sotomayor. I think it's 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've seen an expansion of freedom -- Brown v. the Board of Education, Loving v. Virginia, Griswold v. Connecticut; and in the most infamous decisions, restrictions on our freedom -- Dred Scott, Plessy v. Fergusson, and Korematsu.

Now, of course, we're 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 wasn't 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 isn't 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's something that's occurred today which has come as some -- 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.

DURBIN: 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's work on the court and as the solicitor general and arguing before the court, the record's 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 any other individual.

And I might also add, his most famous case, Brown v. the 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. We share a high regard for this extraordinary American and the kind words you've had to say about him.

There will be questions raised, as well, about modesty and humility in your role, if you were chosen -- 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's no liberal himself, ranked the 43 justices who've 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, Antonin 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 could 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 a solicitor general of the United States, you have defended bipartisan laws like McCain-Feingold campaign finance, and you have deftly balanced competing interests within the federal government.

As dean of the Harvard Law School, your efforts to reach out to conservative -- 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 -- make sure students had every point of view and felt as if they were part of an intellectual and professional enterprise.

Professor Fried told the story, which I have recounted, 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 T-shirts that they wore around the campus saying, "I love the Federalist Society," with your name, Elena Kagan, below that. But it's an indication of a friendship and an effort to reach out, even to those whose opinion you might not share.

Early 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 170,000 pages of documents from your White House service that were turned over to this committee, there's 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'm 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.

LEAHY: Senator Durbin, thank you very much.

Senator Coburn, you're next.

COBURN: Thank you, Mr. Chairman.

Welcome, and welcome to your family. I 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 -- I think those are obvious.

But for me, it is to determine whether or not you have an appropriate judicial philosophy, and 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 didn't have these hearings. As a matter of fact, we looked at the record, we had individual meetings with -- with nominees, and they were voted on, and we didn't have this dance back and forth. And much as you described, the Bork hearings were what you thought were fantastic, and -- 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'm 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 on -- as far as this committee is concerned, we've done a disservice. All the back-and-forth you've heard about activist, non-activist, everything else, the fact is, 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 -- 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's antithetical to a ton of people throughout this country.

So I'm -- really am going to want to know a lot about specific issues. And -- 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 -- what obligation do we have to make sure they know what your thinking is?

Whether it liberal or conservative, the fact is, is they ought to know Elena Kagan by the time of these hearings. And the only way they'll know that -- and you asked me for advice when we finished. And my advice to you is be absolutely completely honest with this committee.

And it's really not for the committee, because as our country is divided today, we're polarized. We're polarized regionally; we're polarized politically. What we have to have in whoever comes to the court is a confidence in their heart that they're going to do what's best in the long term for this country based on what that document says.

So my hope is -- 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 we can once again -- the American people can find out what a justice is all about.

It's obvious -- this is my fourth Supreme Court hearing. It's obvious that what we've heard in the previous hearings are not predictive of the decisions of the nominees that came before the hearing.

And -- and that's schizophrenic. Why -- why should we have this dance if we're not going to find out real answers about real issues about what you really believe?

So my hope is, is that you'll really do something great for the Senate, and great for the country, and set a new standard, and where you really answer questions. We're 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 you -- and they believe what you said.

Because the real measure isn't what you say here. The real measure of the Supreme Court justices that we put on there is whether or not they've gained or lost the confidence of the vast majority of Americans in this country.

My hope is, if you're 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'd like for the record, and I yield back.

LEAHY: Thank you. It will be placed in the record.

But -- and I've just talked with Senator Sessions about this, but do -- I want to yield to Senator Cardin. When Senator Cardin finishes his opening statement -- no pressure on you, Senator Cardin -- but when you finish your opening statement, we will take a 10-minute break.

Senator Cardin?

CARDIN: Well, 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 didn't quite -- 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?"

CARDIN: If you have children, if you work for a living, if you're 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 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 pay -- 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. The 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's start with families and children. I, along with millions of American schoolchildren 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 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 American 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 United States Senate and 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 not -- 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 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 in the privacy of families.

These landmark decisions and others continued a 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 person 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 decision over the last five 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 Citizen 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 have -- buy a louder voice in elections than hard-working 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 Legion, 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 for wetlands under the Clean Water Act.

If you are like the rest of us and wonder if B.P. 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 could 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 action.

As Justice Stevens stated in Citizens United -- and I know Senator Durbin quoted this, I want to give 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 is also an unquestioned legal scholar, a proven leader and a dedicated public servant. As someone who has worked my whole career 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 by 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.

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 -- and you will later this afternoon with your with opening statement.

We will stand in recess for 10 minutes.


LEAHY: Welcome you all back. I should note that I do want to thank -- senators have been -- one, they've been very clear in stating their positions, whether I agree or disagree with the particular position, but everybody has worked hard to keep within time agreement, and we are actually slightly ahead of schedule.

Solicitor General Kagan, I must tell you that is a rare moment in the United States Senate...


(UNKNOWN): To be treasured.

LEAHY: ... we are ahead of schedule on anything. So I -- I compliment you for -- for doing that, and I'm going to -- we'll yield to Senator Whitehouse.

WHITEHOUSE: Mr. Chairman, does this mean that the remaining senators get extra time?





WHITEHOUSE: Mr. Chairman, I...

LEAHY: Nice try, though. Nice try.

WHITEHOUSE: ... 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.

And I welcome you, Solicitor General Kagan. You come before the committee today with a remarkable record of achievement and the law. You've 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's fair to say that some of my Republican colleagues aren't so favorably disposed to your nomination. We've already heard a lot about their concerns, but let's 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 every one 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 don't want to take any suspense out of these proceedings, but things are looking good for your confirmation.


So given this, I'd like to talk for a few minutes about the institution to which you've 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 an 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 truly 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've 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 a core constitutional principle.

WHITEHOUSE: 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 marshalled 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 don't like the jury. They don't 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 P.R. 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 one 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 can't help but wonder now what additional precautions B.P. might have taken in the Gulf if that corporation didn't 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.

LEAHY: Thank you very much, Senator Whitehouse.

And Senator Klobuchar?

KLOBUCHAR: Thank you, Mr. Chairman.

And like my colleagues, I want to acknowledge the tremendous loss of Senator Byrd. Many in here, since we're on the Judiciary Committee, did note 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're on the Robert C. Byrd Highway."

And she said, "Which one?"


We all know where he came from.

Welcome, Solicitor General Kagan. We've 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've had, I'm 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 whose 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 an adviser, as a consensus-builder and as a lawyer.

In every job you've had, you've worked very hard and you've 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're involved in considering the nitty-gritty details of different policies; when you're actually in the game as a decision- maker, 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" T- 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 some, you've had a lot of practical experience reaching out to people who have very different beliefs, and that's 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's 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've had, you have carried this 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-world 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 have done -- 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.

KLOBUCHAR: As you know, more than one-third of all Supreme Court justices throughout history didn't have prior judicial experience, including Justices Rehnquist and Frankfurter and Brandeis.

In an acknowledgement 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'm 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'd like to know more about how you expect to evaluate these issues.

I often get concerned that pragmatic experiences are missing in judicial decision-making, 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've 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're well aware of the strides that women have made.

In a 2005 speech quoting Justice Ginsburg, you described a 1911 student resolution at the University of Pennsylvania Law School. This resolution would have introduced a 25-cent-per-week penalty on all students without mustaches.

The women who came before you to be considered by this committee helped blaze the 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'd like to add one additional consideration to the three standards I mentioned last year. I'd like to see a Supreme Court justice who is able to go into the backroom where the justices meet and where no ordinary citizens are present and bring some real-world perspective to the room.

I'd like to see someone who wouldn't expect the victim in an employment discrimination case to go rifling through her male coworkers' desks to see what their pay stubs say. I'd like to see someone who wouldn't expect prosecutors to bring a crime lab analyst to every trial, even when the crime lab's findings aren't 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.

LEAHY: Thank you very much, Senator Klobuchar.

Senator Kaufman?

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're now beginning the end (ph) 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 served 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've 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 your being the fourth woman to serve on our nation's highest court.

Some pundits and some senators have suggested 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 to be gleaned from the appellate branch. General Kagan, you bring valuable non-judicial 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's bear worth reporting -- 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.

When 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, and his approach still resonates on 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 to distinguished careers on the Supreme Court.

As Justice Frankfurter, someone who knows, 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've all now had the opportunity to review your extensive record as a lawyer, a policy adviser, an administrator throughout your career. You have consistently demonstrated the all-too-rare combination of first-rate intellect and an 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 interests.

With its preempting state consumer protection laws in Medtronic, striking down punitive damage awards in Exxon, restricting the access of the courts in Twombly, or overturning 96 years of pro-consumer antitrust law in League (ph), 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 affect 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 actions.

KAUFMAN: 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 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've said before, charges of judicial activism are often unhelpful, empty epithets divorced from a real assessment of judicial temperament. But that doesn't mean the term "judicial activism" is necessarily meaningless. If we want to take the term seriously, it might mean its fairer 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 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 reargued 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, 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.

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're going to just stay here and it's going to take about a minute to rearrange the table, the two senators who are going to introduce you will, and then you get a chance to speak.

Senator Franken?

FRANKEN: Thank you, Mr. Chairman.

As the chairman just pointed out, General Kagan, I'm last, and that's because I'm 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, and -- 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's 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 United States Senate, I watched every televised confirmation hearing -- not the whole thing, of course, but at least part. 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 it guarantees to 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 won't 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've 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. And so I want to say one thing to the people in 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 five 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 the 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, and 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, Bimidji 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's 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.

FRANKEN: General Kagan, you've got big, big shoes to fill. But before I turn it over to you, I want to talk a bit -- 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 the Supreme Court's own rulings, is wrong and is shocking. It's 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'm 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 seat belts in every vehicle, but they didn't want to. They said safety doesn't sell.

But Congress didn't listen to the car companies. And so in 1966, Congress passed a law requiring that all passenger cars have seat belts.

Since then, the fatality rate from car accidents has dropped by 71 percent.

Here's another story. Around the same time that we passed the seat belt 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 three pillars of the modern consumer safety and environmental laws.

And here's 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 G.M. could have spent millions of dollars advertising against vulnerable congressmen, by name, in the last months before their elections? I don't.

So here is my point, General Kagan. Citizens United isn't just about election law. It isn't just about campaign finance law. It's about seat belts. 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 and 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, and I want to see if you might continue the work of Justice Stevens.

Thank you, Mr. Chairman.

LEAHY: Thank you very much, Senator Franken. I appreciate your statement.

I ask the staff if we could set up the table, because I notice Chairman Kerry and Senator Brown are here. And everybody just stay where are you.

I appreciate both the -- both senators being here. I know everybody's had to rearrange their own schedule. And I've -- we've been locked in this room, but I'm told 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 the senior United States 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, and 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 prestigious Foreign Relations Committee.

So Senator Kerry, Chairman Kerry, we're pleased to have you before our committee today. Please go ahead, sir.

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 Stephen Breyer to this committee. And with the loss today of Senator Byrd, I'm 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 Breyer, he quoted Oliver Wendell Holmes, that every calling is great when greatly pursued.

Those words applied to Stephen Breyer, 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, and 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 trailblazing 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 Sotomayor and for the first time in our history a full third of the United States Supreme Court will be women.

But there is much more that 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?"

And 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. And 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.

And on the eve of the Commerce Committee's markup, 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 and 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, consensus building that few believed was possible. That's 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.

KERRY: I remember lots of late nights in a very quiet Capitol building walking off the Senate floor to meet with my staff and Elena. And 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, and 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 into 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 efforts, says simply, "She changed morale around here."

Charles Fried, the former solicitor general under President Reagan and renowned conservative constitutional expert, says of her prospects as a justice on the Supreme Court, quote, "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 -- 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 and 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.

LEAHY: Thank you.

KERRY: I 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, Republican or Democrat, a 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.

LEAHY: Thank you very much.

And, 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's 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 in September 11, 2001. And 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. And I want you to know the committee appreciates that.

And please go ahead, Senator Brown.

BROWN: Well, thank you, Mr. Chairman. The thanks is to you for accommodating Senator Kerry and I and -- and adjusting your schedules. It was -- it means a lot to sit next to Senator Kerry and -- and make the presentation to you and to Ranking Member Sessions and the members of the committee.

And I'm pleased to join you in upholding a longstanding tradition of introducing Elena Kagan of Massachusetts to the committee.

First, though, I'd like to express my heartfelt condolences to Senator Byrd and his family for the loss that they've suffered during this difficult time. And although I only served briefly with Senator Byrd, I was well aware of his deep and long-standing commitment to the Senate and what it stood for, and he represented the people of West Virginia with great class and dignity.

And I also am saddened to hear the passing of Martin Ginsburg, the husband of Ruth -- Justice Ruth Bader Ginsburg, and I offer my condolences to Judge -- Justice Ginsburg and her family.

And I wish to congratulate Ms. Kagan on her nomination. And 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.

And following her law school days in Cambridge, Ms. Kagan clerked for appellate court judge and U.S. Supreme Court Justice Thurgood Marshall, and then she entered the private -- private legal practice at the prestigious Washington, D.C., law firm, before joining the faculty of the University of Chicago school, where she earned tenure in 1995.

From '95 to '99, 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.

And while at Harvard, her article, "Presidential Administration," was named the year's top scholarly article by the American Bar Association 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. And if confirmed, she would be the third woman on the Supreme Court (inaudible) first in the history of our court.

As solicitor general, she's 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.

And 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, you know, vetting the qualifications, temperament and philosophy of a lifetime appointment, something that is very, very serious and very important.

And I look forward to Ms. Kagan's responses to the committee's questions, and I -- and I know that I have some of my own and am 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, and I want to thank you, Mr. Chairman, and -- and Ranking Member Sessions and members of the committee for adjusting your schedules to allow Senator Kerry and I to come before you.

Thank you.

LEAHY: Thank you very much.

And, as I said, you're -- you're the ones who adjusted yours.

LEAHY: I thank you both for being here, and I appreciate that.

And then the staff will reset the table.

And if we can invite Ms. Kagan back to the table?

And 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 the -- 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.

Do you solemnly swear the testimony you are about to give in this matter shall be the truth, the whole truth and nothing but the truth so help you God?

KAGAN: I do.

LEAHY: Thank you. Please be seated.

Solicitor General Kagan, I -- I know you have an opening statement, and I will -- now the floor is yours.

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 support 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 sets 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. And 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, and 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.

And what the Supreme Court does is to safeguard the rule of law through a commitment to evenhandedness, 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 a 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 served 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.

KAGAN: 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 -- 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. And 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 lessons 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.

LEAHY: Thank you, Solicitor General Kagan.

And I thank all the members on both sides of the aisle who stayed and have been so attentive.

We will come back here at 9:00 a.m. tomorrow.

We stand in recess.

---sbs--- DAY 2

JUNE 29, 2010






LEAHY: Good morning, everyone.

Today -- today, Justice John Paul Stevens' resignation from the Supreme Court takes effect, and 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 United States 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 a commitment to principle, and in -- 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 13-minute round, and we will go 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, first in their families to attend college. I was struck when you said that your mother didn't learn English until ready to go to school, and I can equate (ph) with that, as it's 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.

KAGAN: Oh, gosh, Chairman Leahy, thank you for giving me that opportunity. That's -- that's a wonderful opportunity.

My parents, of course, were -- I mean, as they were loving, wonderful parents, but they were also people who worked hard for their communities. And I think that's what -- what I most took away from them, is the -- the value of -- of -- of serving the communities that you live in, of serving other people.

And I guess I -- I got a little bit from each side. My father, I said, was a lawyer. He was a lawyer for ordinary people. He -- 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's -- the neighborhood we lived in was in the process of some change as I was growing up, and -- and many people were sort of being forced out of their homes. And -- and he made it really part of his legal work to ensure that either they could stay in their homes or at least, if -- if they did need to move to another neighborhood, they could -- 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 -- 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 -- he just so much cared about the welfare of it and -- 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 -- to help other people and to serve the nation, so that's -- that's what I most took away from my father.

My -- my mother was -- she -- I said yesterday she was a kind of legendary teacher. She -- 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, a lot of -- I don't have a large family.

And, instead, just tons and tons of people showed up, and we couldn't 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 didn't -- you didn't slide by in Mrs. Kagan's class. But -- but she -- she -- she got the most out of people, and she changed people's lives because -- because of that.

And if I look at my own career in this kind of strange way, not planned, but in this 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've been really blessed with the opportunities I've had to -- 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 mean, the -- I'm -- I'm looking over your right -- your left shoulder, right on my side, and there's a student of mine right there, and -- and maybe there are some other students that are around the room. And -- and it's -- it's a kind of great thing.

LEAHY: We're doing our best to make Jeremy (ph) blush (inaudible)


But, you know, these -- 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.

And so we -- 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, even going to what did you write on -- 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 were -- they wrote in broad terms. They couldn't foresee every challenge.

So what's the -- what's your response to this criticism of you that is made because you agreed with Justice Marshall? How -- how would you describe the way the Constitution has been amended since it was originally drafted?

KAGAN: Well, Justice Leahy, the framers were incredibly wise men. And if we -- if we always remember that, we'll 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 didn't quote the -- the next part of that phrase. It said blessings of liberty for themselves and their posterity.

So they were looking towards 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 life -- 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're 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 -- and that just means you have to be 30 years old, and it doesn't matter if people mature earlier. It doesn't matter if people's life spans change. You just have to be 30 years old, because that's what they wrote, and that's what they meant, and that's what we should do.

But there are a range of other kinds of provisions in the Constitution of a much more general kind. And -- 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."

KAGAN: Well, what's unreasonable? That's the question.

The framers could have given, like, a whole primer on police practices -- you know, which searches were reasonable and which searches weren't reasonable, and lots of different rules for saying that. But they didn't do that.

And I think that they didn't 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 didn't live with bomb-sniffing dogs and with heat-detecting devices...

LEAHY: And computers...

KAGAN: ... and computers, and all these questions that judges, courts, everybody is struggling with -- police in the Fourth Amendment context.

And I think that -- that they -- 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.

LEAHY: And we also made changes. In the -- in the Bill of Rights, my own state of Vermont didn't join the Union until they saw that the Bill of Rights was going to be ratified. We did the -- a 19th Amendment in expansion of votes for women, the 26th Amendment, the -- allowing 18-year-olds to go. We've 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 -- same Constitution.

But if we -- people realize how changes are in society. I -- I can't imagine anybody saying we should go back to Plessy v. Ferguson, because that was -- that was decided first.

I think -- I do recall you being a special counsel with Senator Biden on this committee during the Supreme Court confirmation hearing. I was here -- I was a little bit further down the -- down the road 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 re-read those words. How are...


KAGAN: Many times.


LEAHY: I'll bet. I'll bet. As have I, and I guarantee you...

KAGAN: And do you know what?

LEAHY: ... every single member of this committee.

KAGAN: They've been read to me many times too.


LEAHY: And probably will again. How are you going to live up to that standard?

KAGAN: Senator Leahy, before I answer that question, may I say a little bit more about what you started with, about constitutional changes?

LEAHY: Sure.

KAGAN: ... Just to -- just to show my commitment to being open, all right.

LEAHY: Go ahead.

KAGAN: But you -- you said something which 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's 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 had talked about the formal amendment process. And that's 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 didn't 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 -- and created a different Constitution for America. So partly the changes come in that way.

But -- but partly, they -- they come outside the formal amendment process, as well. And what you said about Plessy and -- 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 can't really argue otherwise as an 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's inconsistent with the principle of equal protection of the laws that the drafters of the 14th Amendment laid down; is inconsistent with that principle to have segregated schools.

So -- so that's the way in which change can happen, as well.

Now, to go to your real question -- and I -- I apologize for that digression. I have looked at that -- at that book review many times. And -- and been pointed to it. And here's 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 it's important who serves on the Supreme Court. That everybody should treat it as important. And that the Senate should have 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's my excuse for giving you a little bit more, even than you wanted, about constitutional change.

But -- 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 -- 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 S.G. hearing, Senator Hatch and I had some conversation -- because Senator Hatch said to me -- I'm sorry he's 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's not just that people can ask you about cases coming to -- that come before the court. They can ask you a range of questions that are a little bit more veiled than that, but they're really getting at the same thing. And if it's not right to say how you would rule on a case that's going to come before the court or it might, then it's 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, that it wouldn't 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.

LEAHY: Well, actually, that would go into another area. You've been solicitor general. You've 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 wasn't 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. Now the Laird case involved the Nixon administration's surveillance of Americans.

As the Justice Department's legal expert, was working with the Justice Department for the Nixon administration, he testified before Congress about that case. But then after his confirmation, he was probably 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 -- back and forth with Justice Scalia about some things with his relationship with the former vice president and then ruling on cases involving him. I regularly ask questions of nominees, not just for the Supreme Court, but further 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 -- appears to me you take this very seriously. Tell me about what -- 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?

KAGAN: Senator Leahy, I think certainly, as I said in that questionnaire answer, that I would recuse myself from any case in which I've been counsel of record at any stage of the proceedings, in which I've signed any kind of -- of brief.

And I think that there are probably about 10 cases -- I haven't -- I haven't counted them up particularly, but I think that there are probably about 10 cases that are on the dockets next year in which that's true, in which I -- I've been counsel of record on a petition for certiorari or some other kind of pleading. So that's 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'd played any kind of substantial role in the process.

I think that that would include -- I'm going to be a little bit hesitant about this, because one of the things I would want to do is -- 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've 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.

LEAHY: The -- I wish you would look seriously at that. I was really shocked by former Chief Justice Rehnquist's position on -- on a later 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 case where they may or may not agree with them, but so long as they have respect for the court, then they'll understand that.

If they see justices involved in cases in which they had a -- a financial interest, which seems pretty clear-cut, or -- or other direct interests, and then they rule on them, you can imagine this erodes the credibility of the court. And I'm very concerned about that, no matter -- whether it's a Republican president's nominee or a Democratic president's nominee.

Two years ago, in the District of Columbia v. Heller, the Supreme Court held the Second Amendment guarantees to an American's individual right to keep and bear arms. I'm -- I'm a gun-owner, as are many people in Vermont, and I agreed with the Heller decision.

And just yesterday, McDonald v. 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's not going to have any effect one way or the other in -- in Vermont, because we don't have gun laws in Vermont, except during hunting season. We try to give the deer a fighting chance. But, otherwise, there are no -- 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?

KAGAN: There is no doubt, Senator Leahy, that is binding precedent entitled to all the respect of binding precedent in -- in -- in any case. So that is settled law.

LEAHY: As solicitor general, did you have a role in the president's domestic or foreign policy agenda?

KAGAN: The solicitor general does not typically take part in policy issues. And certainly -- I mean, the only policy issues I think that I might have taken part in -- and -- and these are policy issues that would only overlap with litigation issues -- are some national security issues. But -- but, otherwise, you know, the solicitor general really is a legal officer.

LEAHY: And if you -- if you were, though, involved in domestic or foreign policy agenda, would that not be something that you'd want to consider in the issue of recusal? I mean, you mentioned national security issues, for example.

KAGAN: Right. I think that anything that I substantially participated in as a government official that's coming before the court I should take very seriously, as you say, the appropriateness of recusal.

LEAHY: Now, I -- I know that when Chief Justice Roberts and Justice Alito were before this committee for their nomination hearings, they'd worked for Republican presidents. They assured senators, 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 mentioned that is I was concerned, as some were saying, that 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?

KAGAN: Absolutely, Senator Leahy. I -- I worked for President Bill Clinton, and we tried to implement his policy views and objectives.

LEAHY: Now, let me ask you this. We've heard talk about Harvard Law School and military recruiting when you were a dean, and by enforcing the longstanding nondiscrimination policy, you had provided military recruiters with access to students coordinated by the Harvard Law veterans association that 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?

KAGAN: Senator Leahy, military recruiters had access to Harvard students every single day I was dean.

LEAHY: Well, let me ask you this. Did the -- did the -- while you were there, did the number of students recruited go down at all while you were -- while you were dean?

KAGAN: I don't believe it did, Senator Leahy, so -- I'm confident that the military had access to our students and our students had access to the military throughout my entire deanship.

And -- and that's incredibly important, because the military should have the best and brightest people it can possibly have in its forces. And -- and I think -- you know, I -- 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.

LEAHY: I -- it's always been my experience, also, if somebody wants to join the military, they usually are pretty motivated to join the military. And my youngest son joined the Marine Corps out of -- out of high school. There weren't recruiters on the high school campus, but he was able to find where the recruiter -- recruiter was in downtown Burlington and walked over there and signed up. My wife and I were very proud for him for -- for doing that.

But here there's been this implication given -- that's why I want you to clear this up -- implication given that somehow military recruiters couldn't recruit Harvard students. That was not the case, is that correct?

KAGAN: That was not the case, Senator Leahy. The -- the only question that ever came up -- as you stated earlier, this was a balance for the -- 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 -- which said that no employer could use the Office of Career Services if that employer would not sign a nondiscrimination 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.

LEAHY: Because of the "don't ask/don't tell"?

KAGAN: Because of the "don't ask/don't tell" policy.

LEAHY: Which -- which the chairman of the Joint Chiefs of Staff now says should be repealed. I read the speech you gave to graduates at West Point three years ago. You said that military service is the noblest of all professions, and those cadets serve their countries in this most important of all ways. That didn't sound very anti-military to me.

Tell me why you said that, what you did at West Point.

KAGAN: Well, I said it because I believe it. I was so honored to be invited to West Point. They had -- a mandatory part of their curriculum -- and 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've ever gotten, to be asked to be that person.

And I went up, and -- and I talked to the West Point students and faculty about -- about something that I talked about yesterday, really, which was about the rule of law and -- and about how it applied in the military context.

KAGAN: And I was -- I was -- I just -- 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 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.

LEAHY: Well, I -- 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's a captain in the U.S. Marine Corps. He's a 2008 Harvard Law graduate. He's serving as a legal adviser to a Marine infantry battalion in southern Afghanistan. I've 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 -- Captain Merrill's op-ed.

KAGAN: Senator Leahy, that was -- this has been a sort of long process, this process, and sometimes an arduous one. I've only cried once during this process, and I cried when I woke up one morning and I read that op-ed from Captain Merrill, that it meant just an enormous amount to me. He's a magnificent man doing great things for our country, and -- and his praise meant more to me than anybody's.

LEAHY: Well, I haven't met him, but I was very touched by it.

Senator Sessions?

SESSIONS: Thank you, Mr. Chairman. And I value our relationship. And we've disagreed over documents and a few things, but I believe you've tried to handle this committee in a fair way, and nobody's 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 take the -- be able to honor that oath, which is to serve under the Constitution and laws of the United States, then we've got a problem. And I don't think that's 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...

LEAHY: Incidentally, thank you for those kind words.

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 approves to change the Constitution?

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 -- we're asked -- courts are asked to think about how it applies to new sets of circumstances, to new problems, to 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 lives -- live under does develop over time.

SESSIONS: Well, developing is one thing. And many of the provisions, as you noted, they're not specific. But they're pretty clear, I think, but not always specific. But you -- you're not empowered to alter that document and change its meaning. You're empowered to apply its meaning faithfully in new circumstances. Wouldn't you agree?

KAGAN: I do agree with that, Senator Sessions. That's the point I was trying to make, that -- however inartfully -- that you take the Fourth Amendment and you say there's unreasonable searches and seizures and that provision stays the same unless it's amended. That's 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.

SESSIONS: Well, I do believe that there's some out there who think the court really has an opportunity to update the Constitution and make it say what they'd like it to say.

I know we've 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 University of Chicago, Richard Epstein, said any constitutional doctrine that stood in the way of the comprehensive social or economic reforms -- he's referring to the progressives -- had to be rejected or circumvented.

And he noted that the progressive influence continues to exert itself -- he's 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's a dangerous philosophy. I believe that's a philosophy not justified by any judge on the court. And I'm worried about the trends. I think the American people are.

Greg Craig, the former chief council to President Obama, who's known you for some time, I understand, said of you, "She is largely a progressive in the mold of Obama himself," close quote. Do you agree with that?

KAGAN: Well, Senator Sessions, I'm 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 -- I agree with you to the extent that you're saying, look, judging is about considering a case that comes before you, the parties that comes 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's the Constitution or whether it's a statute.

Now, sometimes that's 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's the -- if it's a Constitutional question, it's what the text of the Constitution says, it's what the history says, the structure, the precedent. But what the law says, not what a judge's personal views...

SESSIONS: Well, I agree. But the point I just wanted to raise with you is that this idea, this concept of legal progressivism is afoot.

I noticed E.J. Dionne in yesterday's Washington Post had an article, started off, second paragraph, is 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 as a case that has not been" -- "offering a case that has not been fully aired since the great progressive era of Justice Louis Brandeis.

And I think we do have this national discussion going on about a revival of progressivism.

SESSIONS: Let me ask you about this. Vice President Biden's chief of staff, Ron Klain, who served on chief counsel of this committee, a skilled lawyer, was vice president -- chief of staff to Vice President Gore also, I believe, who's 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 don't think there's any mystery to the fact that she is. As I said, a more progressive role than not," close quote.

Do you agree with that?

KAGAN: Senator Sessions, it's absolutely the case that I have served in two Democratic administrations. And I think...

SESSIONS: No, but I'm asking, do you agree with the characterization that you're a legal progressive?

KAGAN: Senator Sessions, I honestly don't know what that label means. I worked in two Democratic administrations. Senator Graham suggested yesterday, and I think he's right, that you can tell something about me and my political views from that. But as I suggested to you, that my political views are one thing...

SESSIONS: Well, we agree with you, exactly, that you -- you should not be condemned for being a political believer and taking part in the process and having views. But I'm -- I'm asking about his firm statement that you are a legal progressive, which means something. I think he knew what he was talking about. He's a skilled lawyer who's 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 don't think he was attempting to embarrass you or hurt you in that process.

KAGAN: I love my good friend, Ron Klain, but I guess I think that people should be allowed to label themselves. And that's -- you know, I don't know what that label means and so I guess I'm not going to characterize it one way or the other.

SESSIONS: Well, I would just say, having looked at your overall record, having considered those two people who know you very well, I think you have to classify you -- I would have to classify you as someone in the theme of the legal progressive.

Now, as you -- 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 the 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? And isn't it true -- well, when you became dean?

KAGAN: Senator Sessions, the military had full access to our students at all times, both before I became dean and during...


SESSIONS: That's not the question. I know that...

LEAHY: Senator, let her answer the question.

SESSIONS: All right, but -- you know, you -- you -- go ahead.

KAGAN: So the history of this is Harvard did have this antidiscrimination principle and for many, many years, my predecessor, who is Bob Clark, had set up a system to ensure military access, but also to allow Harvard to comply with its antidiscrimination policy which prohibited the Office of Career Services from providing assistance to employers that could not sign the antidiscrimination 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' organizations.

SESSIONS: Please, let me follow up on that.

But in August 26 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 military -- the military to recruit through the Office of Career Services," closed quote.

So that was the rule when you took office, was it not?

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...

SESSIONS: Well, not for many years. How many? Well, go ahead.

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're quite right that in 2002, DOD came to the law school and said, "Although this accommodation has been acceptable to us so far, it's not acceptable any longer and instead we want the official Office of Career Services assistance."

SESSIONS: But before -- and Harvard acquiesced and agreed to do so.

KAGAN: And Dean Clark agreed to do so and that continued...

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?

KAGAN: I do oppose the "don't ask/don't tell" policy.

SESSIONS: And you did then?

KAGAN: And I did then.

SESSIONS: And you in '03, not long after you had been, became president (sic), you said, quote, "I abhor the military's discrimination recruitment policy," close quote. I consider it, quote, "a profound wrong, a moral injustice of the first order," close quote.

And you said that not -- within six months or so of becoming dean. And that was an e-mail you sent to the entire law school.

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 antidiscrimination policy and to protect the students whom it is -- whom it -- 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.

SESSIONS: Well, you couldn't 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, quote, "I'm very opposed to two government policies that directly violate our policy of nondiscrimination 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 nondiscrimination 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 the filing of a brief attacking the "don't ask/don't tell" policy. Is that correct?

KAGAN: Senator Sessions, that is not quite correct. The lawsuit itself brought a constitutional challenge to the "don't ask/don't tell" -- to the Solomon Amendment. We did not participate in -- 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 -- what we tried to argue was that that organization was consistent with the Solomon Amendment. And that's what we argued to the Third Circuit.

SESSIONS: Well, and eventually the Supreme Court did not agree with that. But after the Third Circuit ruled two to one, 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?

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 offices of our Office of Career Services.

SESSIONS: Well, the veterans weren't interested in taking on that burden, and that was not the equal access that the Solomon Amendment, which I worked on in the past, required. Congress, frankly, was very frustrated at the law school. 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 -- 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?

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...


SESSIONS: Well, you did not do -- Ms. Kagan, you didn't 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?

KAGAN: Senator Sessions, the -- the question was...

SESSIONS: No, that's my question to you. Did the law remain in effect at all times at Harvard?

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 hasn't changed matters because we're 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...

SESSIONS: Well, let's -- let's -- let's 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 runaround.

The documents we've 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 runaround 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'm absolutely confident you did. And -- but you continue 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?

KAGAN: Senator Sessions, if -- 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.


KAGAN: Now, you're 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.

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 they -- 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?

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...

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 the internal DOD documents, they say that President Summers agreed to reverse the policy, the dean remains opposed.

KAGAN: Senator Sessions, Larry Summers and I always worked cooperatively on this policy. I didn't ever do anything that he didn't know about, and he never did anything that I didn't approve of.

With respect to the decision that -- that -- that you're 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 six-year deanship.

And -- and -- 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.

SESSIONS: So it's your testimony that the decision you made immediately after the Third Circuit opinion you concluded was inappropriate, you -- you and President Summers, and you reversed that policy later?

KAGAN: Senator Sessions, what -- 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've 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 -- and made a decision to do exactly what DOD wanted.

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?

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're out of compliance with the Solomon Amendment, we said, OK.

SESSIONS: Well, in fact, you were punishing the military. They 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?

KAGAN: Senator Sessions, I think, as I said to Senator Leahy, but 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.

SESSIONS: I don't deny that you value the military. I really don't. And -- 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 that were appearing to recruit on your campus were simply following the policy of the United States 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.

SESSIONS: 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?

KAGAN: Senator Sessions, you're, of course, right that the Solomon Amendment is law passed by Congress. And -- and we never suggested that any members of the military, you know, should be criticized in any way for this.

Quite to the contrary, we -- 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.

SESSIONS: Well, I would think that that's a legitimate concern. And people can disagree about that, and I respect your view on that.

What I'm 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 had equal access as anyone else?

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're 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.

SESSIONS: Well -- I would just say, while my time is -- is running down, I'm just a little taken aback by the tone of your remarks, because it's 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 those military equal access to campus until you were threatened by the United States government of loss of federal funds. This is what happened.

LEAHY: The senator's time has expired.


LEAHY: But you can respond to that if you want.

SESSIONS: ... did not happen in that way. And I think if you had any complaint, it should have been made to the United States Congress, not to those men and women who we send in harm's way to serve our nation.

LEAHY: Especially because of the number of people, including the dean of West Point who has praised you and said that you were absolutely not anti-military, I'll let you respond -- take time to respond to what Senator Sessions just said.

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 long-standing 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.

LEAHY: Senator Kohl?


LEAHY: Senator Kohl?

KOHL: Thank you so much, Senator Leahy.

General 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?

KAGAN: Senator Kohl, it's 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's -- that's...

KOHL: I appreciate that very much. But, as we said, it's a tremendous honor, clearly, to serve and to safeguard the rule of law. And I'm sure you feel you're 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?

KAGAN: Well, Senator Kohl, I -- I do think that what motivates me primarily is the opportunity to safeguard the rule of law, whatever the issues that might come before the court. And I think that that's the -- the critical thing.

If you don't have a rule of law, if you don't 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 -- not in the way a legislator, you know, might care about some particular issue -- "I care about the environment," or, "I care about the economy," or something like that. A judge can't think that way. It's -- it's -- 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's the Constitution or a statute.

KOHL: I'm 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 tenant's rights.

I'm sure you're a woman of passion. Where are your passions?

KAGAN: Senator Kohl, I think I will take this one case at a time if I'm 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 a right for a judge to come in and say, "Oh, I have a passion for this and that, and so -- so I'm going to, you know, rule in a certain way with regard to that passion."

I'm much more a person who -- I look at an issue before me, a case that might come before me. Try to figure out what's right with respect to that issue, with respect to that case. And if you're a judge, of course, that means trying to figure out what's right under (ph) law.

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?

KAGAN: Senator Kohl, I think a judge's job is just to decide each case. And it's -- it's hard to say exactly how a judge would make a difference in their lives because you just don't know which cases are going to come before you.

It's not like a legislature where you get to kind of craft an agenda and say, "This year we're going to do the following three things, we're going to work on energy legislation," or, "We're going to work on civil rights legislation." For a judge, it's case by case by case.

KAGAN: That's, 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 -- 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's the entire purpose of law.

But -- but this -- this isn't 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's 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.

KOHL: Well, that's 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 for you collectively as justices to decide on which ones you will hear. So you're -- you're not just processing cases as they are placed before you. You and the other justices decide which cases you're going -- you're going to judge.

So let me ask you this question: Which ones will motivate you?

KAGAN: Senator Kohl, you're exactly right that the Supreme Court does decide which cases to hear. It's 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 1 in 100.

But there are some pretty settled standards for deciding which cases to take. The first thing, always, is if there's 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 -- 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's one 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 -- when another court has invalidated an act of Congress, when a court has said that an act of Congress is unconstitutional.

And there the -- the court almost always says, well, acts of Congress, that's 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's such a serious thing, but the court is going to take that case.

And then I suppose that there's a third category of cases, which is just extremely important legal issues, you know, cases where there's not a conflict among the courts of appeals and there's no invalidation of an act of Congress, but the case presents some just strikingly significant legal issue that it's appropriate for the Supreme Court to consider and to issue a decision on. And I think, you know, in each year, there's some number of those cases.

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. Senator Feinstein said that's a refreshing quality.

And we appreciate the many thousands of documents that you've 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, quote, "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, in your career, that demonstrate to us what kind of a justice you will be?

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've 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 -- and -- 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 -- it -- it may not be quite so easy as what the person -- well, you can say, well, read this body of decisions, but I think I've had very much a life in the law, a very public life in the law.

Senator Schumer referred yesterday to -- 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 -- a person who is -- who listens to all sides, who is fair, who is temperate, who is -- who has made good and balanced decisions, whether it's as solicitor general or whether it's as dean of Harvard Law School or in any other capacity.

KOHL: Well, I think this is a good time to refer to your 1995 law review article in which you criticized the Supreme Court...

KAGAN: It's been half-an-hour since I heard about that article.


KOHL: There we are. You said back then, when the Senate ceases to engage nominees in meaningful discussions of legal issues, the confirmation process takes on an air of acuity 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're getting some indication of that here at the moment. How do you feel about that reconsideration versus what you said back in 1995?

KAGAN: Well, Senator Kohl, I -- I -- 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 -- 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 -- as I suggested earlier, that -- that I got the balance a little bit off. I said then, even then in that 1995 article, 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's very appropriate for you to question me about my judicial philosophy, on the -- the kinds of sources I would look to at interpreting the Constitution or interpreting a statute, about my general approach to judicial decision-making, about the degree to which I would defer or not defer to acts of Congress and -- and -- and to the states.

I mean, all of those things, I think, ought to be a subject of debate.

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, quote, "inquire as to the direction in which he or she would move the institution." In what direction would you move the court?

KAGAN: Well, Senator Kohl, I do think that 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 -- I can't tell you I'll move the court in a particular way on a particular issue, because I just don't know what case...

KOHL: But you said -- 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?"

KAGAN: Well, it might be a fair question.

KOHL: I'm not going to get necessarily a...


All right, let's move on, comparison to other -- General Kagan, the -- 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're confirmed. One way 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?

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 a simply marvelous justice, in his commitment to the rule of law, in his commitment to principle.

That's not to say that Justice Kagan, if I'm so lucky as to ever be called that, Justice Kagan would be Justice Stevens. It's 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's -- it's 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, and I've expressed, you know, admiration for -- for many of them.

KOHL: My, oh, my, oh, my.


All right, let's move on.


General Kagan, to help us understand what kind of a justice you would be if you're confirmed, I'd like to briefly describe the philosophies of two justices, ask you which comes more 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, quote, "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, quote, "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, quote, "to understand their meaning for living people."

Which view of the constitutional interpretation comes closer to your view and why?

KAGAN: Senator Kohl, I don't 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's no question that if the text simply commands a result -- senators, you know, 30 -- you can only be a senator if you're 30 years old -- then the inquiry has to stop. But there are many, many provisions of the Constitution, of course, in which that's not the case.

When that's not the case, when the text kind -- 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's 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're packed with reference to prior cases, rather than reference to some original history.

So I think it's 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 -- will -- will -- is the relevant one and will give you the best answer on the law, and sometimes another.

KOHL: I'd like to talk about antitrust a little bit, General Kagan.

As you know, it's 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, quote, "comprehensive charter of economic liberty."

Recently, however, we've seen many industries become increasingly concentrated and consumers having fewer choices. In the last few years, we've 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 anti-competitive 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've reached a tipping point where the antitrust laws may not be protecting consumers as much as they were intended to do?

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, the Dr. Miles precedent. And the courts 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 -- noncompetitive -- and -- and -- and per se violative of the antitrust laws, and changed that to a rule of reason analysis.

I think on the one hand it's clear that antitrust law needs to take account of economic theory and economic understandings, but needs to do so in a -- 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.

KOHL: Well, let's 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 his 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?

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'm not going to grade the Leegin decision, but -- but -- but I do recognize very much the concern that some have said about it, which -- which is this -- this -- 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.

KAGAN: And I think that that's a very important question for the court going forward.

KOHL: General Kagan, how do you feel about permitting cameras in the Supreme Court for oral arguments?

KAGAN: Senator Kohl, this is actually something that I -- I spoke about when I was -- as solicitor general before I was ever nominated to this court. So I have expressed a view on this question. And I -- 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 -- and the reason I think is as -- when you see what happens there, it's an inspiring sight. I guess I talked about this a little bit in my opening statement yesterday.

I basically attend every Supreme Court argument. Once a month I argue before the court. When I'm not arguing, I'm sitting in the front row watching one -- some member of my office or somebody else argue. And it's an incredible sight. Because all of these -- all nine justices, they're so prepared, they're so smart, they're so thorough, they're so engaged. The questioning is rapid fire. You're really seeing an institution of government at work, I think, in a really admirable way.

So I think -- and, of course, the issues are important ones. I mean, not -- some of them will put you to sleep, you know.


But -- 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 different -- 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, you know, on -- on almost every issue I'm open to being persuaded that I'm wrong. But on this one, I -- 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.

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'd 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?

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 and disputed elections is -- 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 -- that -- 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 -- it's hard to think of a more important question in a democratic system, and -- and maybe a tougher one.

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?

KAGAN: I hope that they will, Senator Kohl. And -- 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.

KOHL: Thank you.

LEAHY: So if people (inaudible) mentioned to some of the senators up here -- wanting to yield to Senator Hatch for his round and Senator Feinstein for her round, but then take a 10-minute break. We're trying to -- it just works right to break for lunch around 1:00.

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?

HATCH: Well, thank you, Mr. Chairman.

You're doing well. Relax as much as you can.

I'm going to ask a series of questions, some of which you -- just ask for yes or no. To the extent that you can do that, I'd appreciate it. But, you know, you -- 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." I know that the Supreme Court has said that the First Amendment also limits state government, but do you agree that the -- that America's founders were first concerned about setting explicit limits on the federal government in areas such as freedom of speech?

KAGAN: There's no question that the First Amendment limits what Congress and what other state actors, executive officials, can do.

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 political office, is at the core of the First Amendment and has the First Amendment's strongest protection?

KAGAN: Political speech is at the core of the First Amendment. I think that that has been said many times by the court.

HATCH: Yes, I think one of the great examples, EU v. San Francisco County Democratic Central Committee back in 1989, really came out very strongly on that.

When you worked in the Clinton White House, you wrote a memo in October 1996 in which you wrote this, quote: "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," unquote.

Now as I understand it, President Harry Truman argued as far back as 1947 that a ban on independent expenditures would, quote -- a, quote, "dangerous intrusion on free speech," unquote.

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 -- do you recognize -- excuse me -- do you reject the idea that spending is speech?

KAGAN: Senator Hatch, those -- 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 for the press office. It might have been for the president himself.

HATCH: Well, you were listed as the creator.

KAGAN: I created a lot of talking points in my time.


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?

KAGAN: Senator Hatch, I argued the case, of course. I walked up to the podium and I argued strenuously that the bill was constitutional. 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 fist 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.

HATCH: OK. The statute being challenged in this case prohibited different types of for-profit corporations, nonprofit corporations and labor unions from using their regular budget to fund speech by candidates on election issues within 30 to 60 days of a primary or a general election.

They could form separate organizations called PACs, 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 is a lot of loose rhetoric about the decision in this case allowing unlimited, quote, "spending on elections," unquote.

I assume that is to conjure up images of campaign contributions or collusion. But just to clarify the facts, the statute and the Citizens United case involved what are called "independent expenditures" or money spent by corporations, nonprofit groups or unions completely on their own to express their political opinions. 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?

KAGAN: You're right, Senator Hatch, that this was an independent expenditure case rather than a contributions case.

HATCH: Right. When President Obama announced your nomination, he said you believed that, quote, "in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens," unquote. 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. As you know, in that case, a nonprofit organize sued to defend its freedom of speech rights.

Do you agree that many people join or contribute to nonprofit 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?

KAGAN: I do agree that civic organizations are very important in our society, Senator.

HATCH: These are not just civic organizations. I'm talking about unions and businesses and nonprofits and profits and partnerships and S corporations and a lot of others.

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.

HATCH: That's right.

KAGAN: 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.

HATCH: OK. Now, President Obama called the Citizens United decision, quote, "a victory for powerful interests that marshal their power every day in Washington to drown out the voices of every day Americans," unquote. Now, as I said, the statute applied to for- profit corporations, nonprofit corporations and labor unions.

Do you believe that, let's just take unions, do you believe that they are, quote, "powerful interests that drown out the voices of every day Americans"?

KAGAN: Senator Hatch, what the -- 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.

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 4.5 million S corporations or S chapter corporations in America. We have 56,000 in my home state of Utah alone. These are small companies who 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.

Do you believe the Constitution gives the federal government this much power?

KAGAN: Senator Hatch, Congress determines that corporations and trade unions generally had this kind of corrupting impact on...

HATCH: I'm talking about all of these 4.5 million S -- small corporations as well.

KAGAN: Senator Hatch, of course, in the solicitor general's office, we defend statutes and Congress determined...

HATCH: No, no. I understand that.


HATCH: Let me ask my questions the way I want to.


HATCH: I will. I'm going to be fair. I intend to be, and you know that after 34 years.


Go ahead, I -- did you have something else you want to add?

KAGAN: No, go ahead.

HATCH: We have to have a little back-and-forth every once in a while or this place would be boring as hell, I tell you.


KAGAN: And its gets the spotlight off me, you know, so I'm -- I'm all for it. Go right ahead.

HATCH: I can see that. And by the way, I've been informed that hell is not boring, so you can imagine what I mean by that.

KAGAN: Just hot.

HATCH: OK. I have the current volume -- the current volume of the Code of Federal Regulations. This is governing federal campaign finance. It's 568 pages long, this -- 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 nonprofit corporations and small S chapter corporations to comb through all of this? This is just part of it. There are 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?

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 -- 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...


HATCH: Would you acknowledge that there are all these other smaller groups and all these other groups that have -- should have a right to speak as well?

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 -- 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...

HATCH: I understand.

KAGAN: ... on the basis of the record that was made in Congress, this, I think it was an 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 a paramount First Amendment value, which is no doubt the case. And the court applied a "compelling interest" standard and the court rejected the position.

But -- but the position that we took was to defend the statute which applied broadly.

HATCH: No, I agree -- 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 when 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, quote, "speech restrictions based on the identity of one speaker are all too often simply a means to control content," unquote. Do you agree with that?

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 -- is saying one speaker can speak and not another.

KAGAN: I had a very interesting colloquy with Justice Scalia at the court on this question.

HATCH: I understand.

KAGAN: Justice Scalia said to me, and it's a -- 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.

HATCH: Well, one part of Congress would protect the incumbents. The others would be trying to throw them out. I mean, that's what...


That's what this system is.

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, and not withstanding 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.

HATCH: Well, tell that to Blanche Lincoln...


... how incumbents are protected. In this case, the speech in which Citizens United -- I think about Blanche 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 -- and let me -- let me keep going now. In this -- and I'm enjoying our colloquy together.

KAGAN: Me, too.

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 nonprofit group did not have a separate PAC, the Constitution allows 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, at the end of the day, the Constitution allows Congress to ban them from engaging in any political speech in any of those forums?

KAGAN: Senator Hatch...

HATCH: I'm not blaming you for the priority, but nor am I really blaming the person who was trying to defend this statute. I'm just saying that's what happened.

KAGAN: Senator Hatch, the statute which applies only to corporations and unions when they make independent expenditures, not to their PACs...


KAGAN: But corporations and unions, when they make independent expenditures within a certain period of a -- of an election...

HATCH: Right.

KAGAN: ... the statute does not distinguish between movies and anything else.

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's 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 in 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 Ginsburg 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 nonprofit groups from using their regular budget funds to publish pamphlets that say certain things about candidates close to an election? You did...

KAGAN: Senator Hatch, we were -- of course I was defending the statute as it was written.

HATCH: And I understand.

KAGAN: 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 kind of classic electioneering materials, not books, because they aren't typically used to electioneer, but that the application of the statutes to any kinds of classic electioneering materials was in facts constitutional and that the court should defer to Congress's view of the need for this...

HATCH: I accept that. I accept that you made that argument and that you were arguing for statutory enactment by this -- 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, quote, "pretty classic electioneering," unquote.

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 Paine's "Common Sense." Since, in the Citizens United case, you were defending application of the statute to a film, would you also consider films as classic electioneering?

KAGAN: Senator Hatch, I'm trying to remember what our -- what our brief said, but yes, I think that the way we argued the case...

HATCH: You took that position?

KAGAN: ... it applies to films, as well, of course.

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 a poinsettia.

I believe he called that a "jurisprudence 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.

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 had 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.


KAGAN: But with respect...

HATCH: That's not true. And you did say the books are probably covered, but you didn't think they would...

KAGAN: I thought -- I said that we -- 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 -- have -- have applied to books but would have applied to all the materials that people typically use in campaigns.

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. Now, 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's 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 political 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 -- 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?

KAGAN: Senator Hatch, putting the Citizens United case to the side, I think that there are extremely important constitutional principles that prevent the government from picking and choosing among speakers except in highly unusual circumstances with hugely compelling interests.

HATCH: Well, what's highly unusual about a book...

KAGAN: Well...

HATCH: ... or a pamphlet or a movie?

KAGAN: Senator Hatch, 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 argued...

HATCH: But you do believe it was wrongly decided, too, don't you?

KAGAN: I'm sorry?

HATCH: You did take the position it was wrongly decided?

KAGAN: I -- I -- 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.


KAGAN: I want 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's 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've argued, you know, I'm approaching the things -- the cases as an advocate from a perspective of...


KAGAN: ... first the United States 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.

HATCH: I got that. I got that. I don't have any problem with that.

All I'm saying is, is that we've had arguments right here in this committee that this was a terrible case that upset 70 years of precedent, and I've heard all these arguments. And they're -- they're just inaccurate. That's what we're 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. 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 in force today?

KAGAN: Senator Hatch, this case did, as you say, these parties were -- were domestic, nonprofit -- was a domestic nonprofit corporation.

HATCH: OK. Yes, well, there was no foreign corporation involved. That's one of the points I'm trying to establish. And it was a misstatement of the law.

I'm not here to beat up on President Obama, I just want to make this point. And yet colleagues have just accepted that like that's true. It isn't 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 two 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 Burger 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 some people -- because people are making just such arguments today.

That case also involved the First Amendment protection of the press, but Burger 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?

KAGAN: I'm sorry, Senator Hatch. The...

HATCH: Do you agree with Justice Burger's comment there?

KAGAN: Would you read that again? I'm sorry.

HATCH: Sure. I'd be glad to.

He said, "In short the First Amendment does not belong to any definable category or persons or entities. It belongs to all who exercise its freedoms."

KAGAN: Senator Hatch, it's -- the First Amendment protects all of us and grants all of us rights.

HATCH: Right. And they're important rights.

In Citizens United -- see, I'm getting a little tired of people on the left saying it was a terrible case, it was wrongly decided, when, frankly, let me make this point, in Citizens United the court listed at least 25 precedents dating back almost 75 years -- here's a list of them right here -- holding generally that the First Amendment protects corporate speech and specifically that it protects corporate political speech.

Now, I'd like to put these cases in the record at this point.

LEAHY: Without objection.

HATCH: On the other side of the precedential scale is a single 1990s 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 -- 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 precedents. And many folks have -- and, Mr. Chairman, I'm going to need about 30 seconds more, just to finish here.


LEAHY: Thirty seconds more.


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, wasn't 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.

Now, I thank my -- 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...

KAGAN: Senator Hatch, I think...


HATCH: And I've appreciated your comments here today.

KAGAN: Senator Hatch, I think that there was a significant issue in the case...


KAGAN: ... about whether Austin was an anomaly, as you quoted, or whether it was consistent with prior precedent and -- and -- 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.


LEAHY: Senator Feinstein is recognized. And then, after that round of questioning, we'll take a short break.

Senator Feinstein?

FEINSTEIN: Thank you very much, Mr. Chairman.

I just want to clear up one thing before I go on. It's 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. And I believe -- here's 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?

KAGAN: Yes, that's exactly right, Senator Feinstein.

FEINSTEIN: So that it's 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 elect candidates to do their bidding, not to prevent authors from publishing their books?

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 was 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.

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...

KAGAN: Just you and me?

FEINSTEIN: Just you and me and nobody else.


LEAHY: Don't anybody in the room listen.


FEINSTEIN: I come at the subject of guns probably differently than most of my colleagues. I think I've seen too much.

You know, I wrote the assault weapons legislation. I found the body of Harvey Milk. I became mayor as a product of assassination.

I've watched as innocent after innocent has been killed, the latest of which in my state is two weeks ago, a 6-year-old in a Spider-Man 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, killed the same way. A youngster playing the piano, killed the same way, bullet right through the walls, is 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.

FEINSTEIN: "That is settled law," you said.

OK. This is a 5-4 closely decided decision in both cases. California is not Vermont. California's a big state with roiling cities. It's the gang capital of America. The state has tried to legislate in the arena.

As I understand McDonald, it's 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.

I mean, we probably have as many as 30 million people living in cities where the issue of gangs is a huge question.

So here's 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 does it -- why do these two cases become settled law?

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 has proved -- proves unworkable over time or if the doctrinal foundations of the precedent are eroded, or if the factual circumstances that are -- were critical to why the precedent -- to the original decision, if those change.

But -- 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, that -- that one defers to prior justices or prior judges who have decided something. And -- 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."

That the whole idea of precedent is -- is that's not enough to say that a precedent is wrong. You just -- you assume that it's -- that it's right and that it's valid going forward.

FEINSTEIN: OK. Let's 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's 30 years of case law.

But in the 2007 case of Carhart v. Gonzales, 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's the question: Do you believe the Constitution requires that the health of the mother be protected in any statute restricting access to abortion?

KAGAN: Senator Feinstein, I do think that the continuing holding of Roe and Doe v. Bolton is that women's life and women's health have to be protected within -- in abortion regulation.

Now, the Gonzales case said that with respect to a particular procedure there was -- that the -- 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.

FEINSTEIN: Because of the procedure?

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.

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 as 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 Qaida in the Philippines 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?

KAGAN: Senator Feinstein, the conversation 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.

Detention -- and Hamdi said that the law of war typically grants such authority in a wartime situation, and interpreted the AUMF consistent with that 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 belligerence that -- 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 Qaida and Taliban force. That's the definition that the Solicitor General's Office has -- 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's too broad, whether it's 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 is certainly quite a number of questions that will come before the court about the exact scope of detention authority.

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're saying?

KAGAN: Senator Feinstein...

FEINSTEIN: And that the president does not have an overriding authority here?

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 Authorization 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. So just -- 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 presidents to do." The courts should give real deference to that.

FEINSTEIN: But let me stop you here, because it's the three- prong test. We've discussed this in almost every Supreme Court confirmation hearing now. The concern is where there isn't legislation and -- 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's not the commander-in-chief's authority. It's the AMU -- AUMF authority that prevails. Do I understand that correctly?

KAGAN: Yes. Essentially what the solicitor general's office and the Department of Justice has been arguing in these last two 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 settled anything, or zone three where the executive is acting as against Congress' statements 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.

FEINSTEIN: OK. Let's talk about that for a moment because that's 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?

Well, Senator Feinstein, I would have to, you know, take a look at the statute and -- 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 II. I think that that would be a hard case. I think the court might say, "Well, you know, 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.

FEINSTEIN: OK. 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 is arrested in the United States or abroad?


KAGAN: Well, Senator Feinstein, I -- 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 -- there is a Fourth Circuit decision on that subject. It's -- 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 -- 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 -- it's very much a live possibility.

FEINSTEIN: Right. And we have just had a case. It came 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. I mean, it's my understanding that what the judge did here 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.

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 -- the president to jump over in order for the action to be found constitutional.

FEINSTEIN: Thank -- thank you very, 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 legislative 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 five-to-four 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's 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?

KAGAN: Senator Feinstein, I don't know the -- the case that you mentioned at all. But 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; that a court's -- that a 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; that instead, the legislative power is Congress's 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 is even -- just, they make a mistake; they're careless, whatever.


Sometimes you do that, right?

But -- so sometimes there's -- 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 -- 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. And -- and 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 -- 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 -- 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.

And in that sense, Chevron is actually a great example of -- 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.

FEINSTEIN: Thank you. That's 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, 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's 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's the question. Do you believe it's possible for citizens to demonstrate that environmental harms have injured them for constitutional purposes?

KAGAN: Senator Feinstein, the answer is yes, depending on -- much depending on what Congress does. So let me step back for a minute.

Article III has what's called a Case or Controversy requirement. And this is a very important aspect of the judicial system. It's really the -- 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's 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're 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.

FEINSTEIN: Like asthma in L.A. from ozone?

KAGAN: It can -- the injury can be of a kind like that, certainly.

Now, the court has said that people have to have -- be able to show that that person specifically has been injured. And there's -- there's some sort of specificity and concreteness requirement that the court has used in the stand in question.

But the court has also made clear that Congress can define, within broad limits, a -- a set of people who Congress believes has -- 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's control, that Congress can say, look, there are, you know, 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.

FEINSTEIN: In legislation? In other words...

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 -- such a suit complies with Article III.

FEINSTEIN: Thank you very much.

Thank you, Mr. Chairman.

LEAHY: Well, thank you very much, Senator Feinstein.

We will take a short break, about 10 minutes, and -- and then come back. Again, I appreciate senators on both sides staying within their allotted time.

We will have one change. Normally, we go to Senator Grassley, but because of a conflict in scheduling, we're going to switch and we'll go to Senator Kyl when we come back in. That's with the concurrence of both -- both the senators.

We stand in recess.


LEAHY: Thank you all.

Getting back to the schedule, we'll go to Senator Kyl. Then we'll go to Senator Feingold. Then we'll break for lunch and come back. Emerging senators will be next in line after that to vote at the desk on that 215 (ph) vote and come back here. That's what I intend to do. And I will then recognize whoever is next in line so we can go.

Senator Kyl?

KYL: Thank you.

General Kagan, you can see how important my colleagues think my questions are here.

LEAHY: I'm here.

KAGAN: Or how important my answers.


KYL: Well, when we -- 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'll remind you, he's 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 of those cases is supplied by what is in the judge's heart, or the depth and breadth of a judge's empathy.

My first question is, do you agree with him that law only takes you the first 25 miles of the marathon and that the last mile has to be decided by what's in the judge's heart.

KAGAN: Senator Kyl, I think it's law all the way down. It's -- when a case comes 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 -- this is true of constitutional law, 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 -- and -- 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.

KYL: In the time of sentencing, a trial court might be able to invoke some empathy, but I can't think of any other situation where, at least off the top of my head, it would be appropriate. Can you?

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 a judge is -- 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. That's an important thing for a judge to do.

KAGAN: 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 law all the way down.

KYL: Statutory Constitution -- the precedent?

KAGAN: That -- that's correct.

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 -- 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'm not sure that's 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?

KAGAN: Well, here's what I think. I think that courts have to be level playing fields and 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 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 statehouses, that the obligation of the 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.

KYL: Now, may I just interrupt? When you say level -- to ensure a level playing field, you're not saying that if the parties come to court with positions that are unequal, that is to say one party's position is better the other party's position, that the court's obligation is to try to somehow make those two positions the same?

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 are an individual or you're a corporation or you're the government.

I mean, one of the -- one of the really remarkable things about watching, actually, a Supreme Court argument is sometimes I go up there and I am 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 the justices give you, as the government's representative, just as hard a time -- maybe a harder time -- than they give anybody else. And that's the way it should be.

Whether you are 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 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.

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 win in a court -- 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?

KAGAN: I do, Senator Kyl.

KYL: Now, one of the things that -- 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 on more than -- in more than one way. Let me just cite one thing you wrote about Justice Marshall's view, and I'm 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 interest of people who had no other champion. The court existed primarily to fulfill this mission," you wrote about Justice Marshall. And 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's unclear to me is whether you agree with Justice Marshall's view of the role of the court in constitutional interpretation.

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.


KAGAN: 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 about seeing the courts take seriously claims that were not taken seriously anyplace else.

So in his struggle for racial justice, you know, he could go to the statehouses or he could go to Congress or the president, and those claims generally were ignored.

KYL: Well, let me just interrupt you for a second. You wrote here that in constitutional interpretation, so this is not just a factual matter between two parties. We're talking about interpreting the Constitution. He says the courts should show a special solicitude to...


KAGAN: I think -- I think that was my words, and I meant...

KYL: Yes, correct.

KAGAN: ... "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 -- 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 -- with the same kind of attention we give to everybody else."

KYL: Well, let me just ask you, do you believe, then -- and it's 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's 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's too much agreement with the corporate interests and big business, as one of my colleagues put it?

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 will get Justice Kagan. You won't get Justice Marshall, and that's an important thing.

KYL: Yes, and I -- I totally agree with you. It's not what Justice Marshall believed that's important here. It's what you believe. Since you have written so glowingly about him, you called in fact his vision of the court "a thing of glory," I believe. I'm 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.

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. And there may be differences as to what the law does require, but it's what the law requires and that's what -- what matters.

I guess I would like to go back to -- I will just give you one case just to make sure that...

KYL: Well, could I just keep moving on? I know the time -- well, we don't 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?

KAGAN: Senator Kyl, I would not want to characterize the current court in -- in any way. I hope one day to join it.


KYL: And they said -- and they've said you're not political, right?


KYL: I appreciate it.

Let me explore your judicial philosophy just a little bit more here, whether you agree with the comment that Justice Marshall said. He said you "do what you think is right and then let the law catch up."

Do you agree that that's the right way to approach judging?

KAGAN: The way I would judge is -- 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 a statute, if the case is a statutory case, requires.

KYL: So you wouldn't have phrased your philosophy as Justice Marshall phrased his?

KAGAN: You know, 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...

KYL: He worked outside the box.

KAGAN: ... and eventually the law will catch up.

KYL: Yes...

KAGAN: And eventually the law did catch up, in Brown v. Board of Education...

KYL: That's why it didn't seem to me to be out of character for him to have said that.

Is there anything that you've written -- obviously, you haven't rendered decisions which would enable us to verify that this is your approach to judging.

Can you think of anything you've written, or if you'd like to just supply this for the record, if it doesn't come to you immediately, that would verify what you have said for us here, that would help us to confirm that what you've expressed to us today is, in fact, a view that you've expressed about judging?

KAGAN: Well, I don't think I have 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 have 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, you know, appropriate things to look to, to try to get some understanding of this aspect of me.

KYL: OK. 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 -- 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'm quoting now -- "might create some very bad law on abortion and/or prisoners' rights."

Now, when deciding whether or not to take a case, shouldn't the focus 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?

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 not take.

And when we -- when I was clerking for Justice Marshall, I was -- 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 -- 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.

KYL: Well, do you think you would approach certain decisions that way if you were on the court?

KAGAN: I think that the most important factors in the cert decision process, which is, I think, one that I talked to Senator Kohl about, maybe -- the ones I gave. First, most importantly, are the question 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, you know, 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 -- those would -- that is the way I would make decisions.

KYL: All right. There are -- some of these bench memos suggest other bases 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 wouldn't be a very good basis on which to suggest taking a case, would it?

KAGAN: As I...

KYL: And who were the good guys?

KAGAN: As I took a look at that memo, Senator Kyl, I was -- that was just a reference to the people whom I thought Justice Marshall would favor on the law. And that's -- 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.

KYL: Well, 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're 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?

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...

KYL: OK, so your -- your belief is that you were quoting someone else when you wrote "bad-guy orgs"?

KAGAN: Or paraphrasing somebody else. But it's not -- it was just telephone notes.

KYL: And it wasn't your terminology; it was somebody else's?

KAGAN: Or -- as I said, or a paraphrase. But it was -- it was -- you know, the way I write telephone notes is just to write down what I'm hearing.

KYL: You wouldn't, in any event, put the NRA in the same category as the KKK, I...


KAGAN: It would be a ludicrous comparison.

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's not whose side you're on that makes...

KAGAN: I hope that's not my good friend Charles...


KYL: Indeed it was -- it is.


It is and was. How do you define who's on the side of the angels?


KAGAN: I -- you know, I didn't -- I have not seen that memo, Senator Kyl, but I'm sure it was -- 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.

KYL: For once, you said?

KAGAN: I'm sorry, Charles.


KYL: Well, have -- in your time as S.G., have you made any litigation decisions based on an assessment of which position was the side of the angels?

KAGAN: I've tried very hard, Senator Kyl, to -- to take the cases and to make the decisions that are in the interests of my client, which is the United States government.

KYL: And it wouldn't be appropriate, as a member of the Supreme Court, to decide cases based on that, either?

KAGAN: Senator Kyl, the -- a Supreme Court justice needs to decide cases on his or her best understanding of the law.

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 S.G.'s opinion.

The case is Chamber of Commerce v. Candelaria. This is an Arizona decision. You'll recall it involved a 2006 law that then governor of Arizona Jane Napolitano had signed, and which requires all employers doing business in Arizona to participate in the federal government's E-Verify 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 pre- empted by federal immigration law, but the federal district court in Arizona and a unanimous Ninth Circuit panel upheld the law.

KYL: 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're familiar with it...


KYL: ... to discuss it. You did not argue that the court should take it because there was a split in the circuits.

KAGAN: That's correct, Senator...

KYL: Or that there had been an unconstitutional application of the law in anyway?

KAGAN: Senator Kyl, I think what we argued in the petition was that the -- the Arizona statute, or at least this part of it, was pre- empted by Congress, and therefore that the decision below was -- was wrong. And that the reason for the courts to take the case was not only that it was wrong -- because the Arizona statute was statutorily pre-empted, but -- but also because this was an important question. It's one of the category of cases where...


KYL: It's that third category you said...

KAGAN: Third category...


KYL: ... there aren't very many, but where they are, they're important.

KAGAN: That's right. Lots of states are passing this -- these -- these -- these kinds of laws and that guidance from the Supreme Court would be appropriate as to what kinds of legislation...


KYL: Well, the Supreme Court isn't in the business of giving guidance, though, is it?

KAGAN: Well, I think for the Supreme Court to set down its view of what the federal statute pre-empts would be very helpful to state legislatures.


KYL: Sure, but -- I mean, the court turns down hundreds of cases, and I'm 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.

KAGAN: Senator Kyl, what we argued to the court in...


KYL: You said it should be a strikingly significant issue, did you not?

KAGAN: I'm -- I'm honestly not sure...


KAGAN: ... words I used. But if I might, Senator Kyl...

KYL: Go ahead.

KAGAN: ... what we argued to the court in Candelaria was that there was a federal statute in this case -- I know that -- look, there was a federal statute in this case. Our best read of that federal statute was that it pre-empted 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 -- 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 pre-empted the state law was one of those moments where -- (inaudible) the issue is of -- of real significance across the country.

KYL: So you think that that made it strikingly significant?

KAGAN: I think that this is a significant issue, as -- and -- 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 it's -- 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 (inaudible) legislation...

KYL: Right. OK.

KAGAN: And here the legislation was in the immigration...

KYL: And here's what the federal law -- I mean it does -- 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'm quoting the statute now -- "through licensing and similar laws" -- "through licensing and similar laws."

And you argued in your brief that the states revoking of a license didn't qualify for that explicit exception to federal pre- emption under the federal statute. Right?

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 know, 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.

KYL: Well, 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 pre-emption in this area except where states pass laws through -- or attempt to deal with the issue through licensing and similar laws.

So wasn't it 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 wasn't limited to licensing a professional. It was the denial of a license to someone who was violating the law.

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...


KYL: Well, that's -- that's the argument that you make. But -- the federal government could impose a fine, but the federal government doesn't get into the licensing of businesses. That's a state activity.

So I could argue just as easily -- and I'm sure the court will consider the argument -- that of course that's the kind of things that states can do. And so just as a state could grant a license, it would also take a license away if a business violated the law.

We'll talk a little bit more about this, I guess, in the -- 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 S.G. having taken the position that you did that it's much less likely that the court would have taken the case. Would you agree with that?

KAGAN: You know, 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.

KYL: Well, the stats are 80 percent, so that's a pretty good percentage, when you ask them to take a case and they do.

LEAHY: (inaudible) Was this the case where the Supreme Court asked the solicitor general to file a brief?

KYL: Yes.

KAGAN: This is a case where...


KAGAN: ... and those -- 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 -- when we just -- when we answer the court's requests for, you know, our advice on whether...


KYL: When we have the next round, I'll have the exact statistics.


KAGAN: I hope we do well.

KYL: I think you do very well.



LEAHY: Senator Feingold?

And then when Senator Feingold finishes, we will -- we will break. And I would reiterate to senators -- and Senator Kyl, you're in the leadership, you probably know this. But apparently the vote is at 2:15. I'll vote at the desk and come back, and I will recognize the next person in line -- should be on the Republican side.

Senator Feingold?

FEINGOLD: Thank you, Mr. Chairman.

And thank you, again (inaudible).

I guess I'd 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 out -- paid for out of the treasury funds of unions and corporations, both profit and non-profit.

So 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: Wasn't it highly unusual, if not unprecedented, for the court to do this?

KAGAN: Senator Feingold, the United States government in the case did urge the courts not to decide the case on the grounds, but it did. And -- and, you know, it's -- 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.

FEINGOLD: And wasn't it unusual how they got to the point where they can make that decision, based on the facts?

KAGAN: Senator -- Senator Feingold...

FEINGOLD: It was unusual, wasn't it?

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.

FEINGOLD: Thank you.

And the reason that many people, including the president and many members of the committee, were so outraged by the decision was not simply because the court reversed its 2003 decision upholding the issue -- ad provisions of the McCain-Feingold bill -- but it also reached out to decide an issue that was not raised in the case at hand, and overturned settled law dating back more than a century.

FEINGOLD: Did it surprise you that the court's decision caused such an uproar?

KAGAN: Oh, I don't know, Senator Feingold. I'm not -- I'm not, you know, an expert in -- in public reaction to things, and I don't think that the court should appropriately consider the public reaction in that -- in that sense.

FEINGOLD: Do you take note of the public reaction to Supreme Court decisions?

KAGAN: Senator Feingold, I -- I -- I read the same newspapers that everybody else does.

FEINGOLD: But you're not willing to comment on whether this was a greater reaction than in other...

KAGAN: I don't know, Senator Feingold.

FEINGOLD: All right. Let me go 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 is the appropriate starting point for these types of questions having to do with whether a 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 a violation of the criminal laws that Congress has passed?

KAGAN: Where the president could authorize the violation of criminal laws that...

FEINGOLD: Congress has passed.

KAGAN: ... Congress has passed?

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 II. But it's -- it's -- it's -- it would be a highly, highly unusual circumstance.

FEINGOLD: 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 II. What you -- or out of the commander in chief power.

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 concede. But do you know of any examples of where this could occur simply within the context of the commander in chief powers under Article II?

KAGAN: Well, 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.

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?

KAGAN: I do not know of any court case like that. That's correct.

FEINGOLD: Let me ask you a question. I asked Justice Alito about this. What is is the proper role here of the judiciary in resolving a dispute over the president's power to disobey an expressed statutory prohibition?

KAGAN: I think that 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 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.

FEINGOLD: 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, quote, "face choices between disregarding or upholding the values embedded in the idea of the rule of law," unquote.

What prompted you to discuss this theme and this incident in that speech? And do you think that this incident holds lessons for Supreme Court justices as well?

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 in important moments in their life like graduation, when they're 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 it's important for them to keep in mind as they -- 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 mind than that.

And -- and -- 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 -- about the rule of law, about how no person, however grand, however 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.

FEINGOLD: What was it about the Ashcroft incident that fit that category?

KAGAN: Well, that was -- that was one of the examples I used as Senator Ash -- then Attorney General Ashcroft really taking a very principled stand. And I thought that that was notable and pointed that out, along with a number of others where people -- where people have taken very principled stands, notwithstanding some considerable amount of pressure to do otherwise.

FEINGOLD: Thank you.

Let's turn to the Second Amendment. I've long believed that the Second Amendment grants citizens an individual right to own firearms. I was pleased when two 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 14th 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. The court in 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 restriction could pass muster. And the court indicated that the examples it gave of permissible restrictions was not an exclusive list.

Now, you worked on gun issues when you were in the Clinton White House, so you're familiar with the kinds of restrictions that Congress has considered, and you're obviously familiar with these Supreme Court cases.

Can you give us a sense on 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?

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 read 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 longstanding 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 court 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 '90s.

KAGAN: And, you know, I think that we did not consider that those regulations, through the Heller prism, just because Heller didn't exist at that time, but I do think that -- that these cases may be coming before the court and the court will consider, sort of, regulation by regulation, which meets its standard.

FEINGOLD: Going back to campaign finance issues, I -- again, because of your work in the Clinton White House and your advocacy for the government's position on 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've 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 are committed to a political agenda.

And he says that's, quote, "the very opposite of what the American people expect in a judge," unquote.

I think it's important to point out that, when you were in the White House Counsel's office, you had the job of evaluating the constitutionality of various policy proposals. And 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 to the committee, you said, "I think it's pretty clear that a ban on non-citizen contributions would be unconstitutional." In parentheses, "though a ban on foreign contributions would not be," unquote.

In another memo to Quinn, you expressed doubt that any constitutionally valid proposal to limit independent expenditures exist. So you said you were, quote, "wary of touting this notion to the president," unquote.

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 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?

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 -- 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 -- and for lawyers to give good advice on those topics, and -- 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 -- the Justice Department, I think, or -- he separated out those two quite clearly, and I think he was right to do so.

But one is simply in a different position. 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 these constitutional boundaries, 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 policy-making. And the courts ought to respect 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.

FEINGOLD: I think that's an excellent answer, and I thank you for it.

I'm going to turn to something that requires a little more background now, a question that seems especially pertinent in the wake of the Deepwater 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'd 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 plaintiffs 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 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's most important roles is to prevent powerful groups and corporations from running roughshod over the rights of individuals.

What did you think of the Exxon decision, and do you agree that the courts have an important role to play in protecting people who are injured by corporate misconduct?

KAGAN: Well, Senator Feingold, courts have an important role to play in protecting people under the law who -- 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. And 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, which some prior punitive damages cases have been.

Instead what the court decided, a majority of the court, was that there was an appropriate ratio of 1-1, I believe it was, for punitive damages, as compared with compensatory damages, as a matter of federal common law.

And my -- the relevance of that fact is that -- 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.

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 -- is more the underdog over...



KAGAN: I don't know if it's more the underdog...

FEINGOLD: Well, traditionally, certainly.


So, first of all, if you're confirmed, that should make for an interesting dynamic on the court between the two of you. But I want to ask you this same question.

You grew up in Manhattan. You were dean of Harvard Law School, and you have 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 townhall meeting in Stevens 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 on the lives of millions of Americans who don't live on the East Coast or in our biggest cities?

KAGAN: Senator Feingold, does it count that I -- I lived in Chicago for some period of my life?

FEINGOLD: It helps.


Getting closer.


KAGAN: Senator Feingold, I -- 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 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.

FEINGOLD: I mentioned my remarks on Monday of 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. Lastly, there are 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 questions, which is why I think that obviously the ethical choices of a judge must be beyond reproach.

What do you think are the most important ethical questions facing the judiciary, and particularly the Supreme Court? And will you be an advocate within the court and the judiciary for addressing these issues forthrightly and strongly?

KAGAN: Well, certainly, Senator Feingold, what Chairman Leahy opened up with, which is the whole question of making sure that 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.

FEINGOLD: And when we spoke in my office, you indicated that you had just recently learned that the Supreme Court is 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 yet. 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 of the case that other judges can't?

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 will be my colleagues about it before I answer that question. I think it's an important question and one worthy of real consideration.

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 agribusinesses 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?

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 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.

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 opposed 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 these 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, quote, "focus on government's duty to protect the public, not the bankers who needed to be bailed out in the first place," unquote.

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?

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.

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 this 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?

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 advisers in -- in appropriate positions -- advise 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 -- 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 the president that it doesn't like some set of actions that he's taking, 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 the more common,and I think the more appropriate way of dealing with the conflict and a disagreement as to this matter, which is Congress and the president kind of battling it out as to way he should appoint people.

FEINGOLD: I thank you.

LEAHY: Thank you.

And that will be it for this morning. We'll come back within a few minutes after the vote begins at 2:15. I'll then recognize the next Republican senator in line and then go to the next Democratic senator.

I hope you get some lunch. Solicitor General, you're the one that's had to do all the work here this morning. I appreciate your testimony.

We stand in recess.


LEAHY: I understand that the next person to question is Senator Grassley, who would -- he swapped places with somebody else.

And, Solicitor General Kagan, glad to have you back. I hope you at least had a chance to have -- have some lunch.

KAGAN: I did, Mr. Chairman. Thank you very much.

LEAHY: Good.

Senator Grassley?

GRASSLEY: Glad to be with you, Ms. Kagan. In an interview published May 2004, Metropolitan Corporate Council, you stated, quote, "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 reached those decisions, so the Senate is right to take an interest in who these people are and what they believe," end quote.

Could you explain what attitudes and views you were talking about in the quote? What attitudes and views would you bring to the Supreme Court? And so I'll stop here. Thirdly, and most importantly, how will they make a difference in how you reach decisions? And "make a difference" is words out of your quote.

KAGAN: Thank you, Senator Grassley.

This really goes back to the -- 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 and that different justices approach constitutional interpretation differently, approach statutory interpretation differently, and that 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.

And 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.

GRASSLEY: The attitudes and views that you have, how will they make a difference in how you will reach a decision?

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 -- that I would use on the court. And that's an approach that -- that might be different than some other people's, same -- some people have that approach. Some people have a different approach. And I think that those differences do matter.

GRASSLEY: OK. I'd like to go to the Second Amendment. In Sandage v. United States (ph), the D.C. Circuit Court of Appeals held that the Second Amendment only protects a collective right, not an individual right, upholding D.C.'s handgun ban and registration requirements.

A version of this law was later overturned in Heller. As the clerk to Justice Thurgood Marshall, you recommended against Supreme Court review. Your entire legal analysis was this, quote: "Petitioner's sole contention is that the District of Columbia's firearms statutes violate his constitutional right to keep and bear arms. I am not sympathetic," end of quote.

Why were you not sympathetic? Were you not sympathetic to that challenge because it was your belief that the Second Amendment protects collective, not individual right to keep and bear arms?

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. And, indeed, none of the justices on the court at that time voted to take certiorari in that case.

It was by -- when -- 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 moment in the court's jurisprudence with respect to the Second Amendment. And as I suggested to Senator Feinstein, there's 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 -- 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.

GRASSLEY: So then, if there had been -- the Heller case existed, you would have been sympathetic to the challenge, and so the words, "I'm not sympathetic," were related to what you thought the law was at that time?

KAGAN: It certainly was, Senator Grassley. It would have been an entirely different case had Heller existed prior to that certiorari petition.

GRASSLEY: I'd like to continue on Second Amendment. The Supreme Court held, as you know, in Heller that the Second Amendment included an individual right to possess firearms, not a collective right conditioned by participation of the 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 14th Amendment.

Do -- 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?

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 courts 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.

GRASSLEY: So whether you personally believe that Heller's -- or the right to bear arms is a collective or an individual right will have no bearing in the future, but you -- you don't want to tell us what your own personal belief is. That's kind of what I'm asking.

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 am 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 -- the scholarship in this area has suggested that there's a very strong view that -- 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.

GRASSLEY: The court said in Heller, quote, "It has 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, codified a pre-existing right." Do you believe that the Second Amendment codified a pre-existing right? Or was it a right created by the Constitution?

KAGAN: Senator Grassley, I've -- I've never really considered that question, as to whether the Second Amendment right...

GRASSLEY: Well, it's basic to our Declaration of Independence that says we're endowed by our creator with certain -- 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?

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 -- and interpreted by the court in Heller, and that's what I would do.

So I think that the -- the fundamental legal question would be whether -- that a case would present would be whether the Constitution guarantees an individual right to bear arms, and Heller held that it did, and that's good precedent going forward.

GRASSLEY: I know the Declaration of Independence is not the law of the land, but it does express a philosophy of why we went to war and why our country exists. And 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?

KAGAN: Senator Grassley, I think that that's what the court held in McDonald.

GRASSLEY: And you agree with it?

KAGAN: Good precedent going forward.

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 -- not as a Supreme Court justice, but do you believe in them as a -- as a -- as settled law personally?

KAGAN: I -- I do think that those decisions are settled law and are entitled to all the weight that any precedent of the Supreme Court has.

GRASSLEY: Will you follow stare decisis and uphold Heller and McDonald?

KAGAN: I will follow stare decisis with respect to Heller and McDonald as I would with any case.

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, quote, "We're in a new world, and internationalization is an example. There is 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, quote, "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 and international law course is worthwhile. However, I am troubled by your failure to recognize the obvious importance of requiring a class in constitutional law.

I'm troubled by your decision to shape a student's understanding of the U.S. constitutional law, if any, see 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 any first-year requirement at Harvard. In fact, it isn't even a requirement to graduate from 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 type in your requirement.

When you said that, quote, "The traditional curriculum does not provide some of what lawyers today need to know," end of quote, 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 then of course in U.S. constitutional law? In other words, which is more important -- our Constitution or other nations' constitutions and laws?

KAGAN: Our constitutional law is absolutely basic. When we were doing the curricular 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.

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 it, both Harvard and the University of Chicago, teach constitutional law in the second and third year.

And 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 shortchanges constitutional law, because you can only give students a very small amount of what they really should know.

So both at Harvard and at 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 curricular 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. And 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 curricular review, although we decided -- and the constitutional law faculty felt extremely strongly about this -- that 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, and of course that we devoted to the governmental process.

GRASSLEY: But in the process of your explanation, you're justifying that constitutional law is less of a foundation course then international law, are you not?

KAGAN: No. Senator Grassley, constitutional law is absolutely basic. But Harvard faculty has decided that it's actually best taught and most thoroughly taught at most broadly taught when it is done in the second and third years. Almost all students take a -- 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...

GRASSLEY: I said I didn't disagree with you on the importance of international law. Let me go on, please.

Should judges ever looked to foreign law for, quote-unquote, "good ideas?" Should they get inspiration for their decisions from foreign law?

KAGAN: Well, Senator Grassley, I -- 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 -- 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 -- as precedent or as independent weight.

Fundamentally, we have an American Constitution. Our Constitution is our own. It's -- 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 -- the fundamental sources of legal support and legal argument for that Constitution ought to be American.

GRASSLEY: Which foreign countries would you suggest we look to for good ideas?

KAGAN: Oh, Senator Grassley I -- 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 is a -- 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.

GRASSLEY: Some judges, and maybe justices, have said that our influence in oral should be a factor that a judge consider in constitutional interpretation. So do you believe that our influence in oral should be a factor that judges consider in constitutional interpretation?

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 -- that judges should pay much attention to -- should pay any attention to.

GRASSLEY: If confirmed, would you rely on your cite international foreign law when you decide cases?

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 forget with which of the senators -- about the Hamdi opinion. Now, Hamdi opinion is one in which the question was how to interpret the authorization for the use of military force.

And 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. And 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 -- so there are a number of circumstances, I think -- I mean, another example would be suppose, you know, the -- the president has the power to recognize ambassadors under Article II. And there might be a question -- well, who counts as an ambassador? And one way to understand that question is -- is to look at what international law says about what who counts as an ambassador.

KAGAN: And 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.

GRASSLEY: In your -- you wrote in your Oxford thesis, quote, "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."

And then, in addition, quote, "And yet no court should make or justify its decisions solely by reference to 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 the court must make every effort to do so. Judicial decisions must be based above all on law and reason."

Is it appropriate for judges to mold and steer the law?

KAGAN: Senator Grassley, all I can say about that paper is that 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 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.

And so I would -- I would -- I would just ask you to recognize that I didn't know a whole lot of law then, and there -- I didn't know a whole lot of law then.


GRASSLEY: You know, if I accept your answer, it's going to spoil a whole five minutes I had here.


But let me...

LEAHY: Chuck, Chuck, go ahead and accept it.


GRASSLEY: Let me enjoy it anyway, will you?


When you said that, quote, "No court should make or justify its decisions solely by reference to the demands of social justice," end of quote, are you saying that it is acceptable for a court to make and/or justify its decision based upon, quote, "the demands of social justice," end of quote? And if so, whose quote/unquote, "demands of justice" are you referring to?

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 ought to be applied to the case, whether that's constitutional law or statutory law.

GRASSLEY: OK. Well, let me leave that then and say that you've learned a lot by going to law school. I'm not sure I say that to very many people.


I'm not a lawyer, you know.

Let me go to one of your heroes, 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, quote/unquote, "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, quote, "created a degree of judicial power undreamt of by most aggressive U.S. Supreme Court justice," end of quote. For example, Judge Barak believes that, quote, "a judge has a role in the legislative project," end of quote.

Will you look to Judge Barak's judicial method as a model for deciding cases?

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. I do admire him. 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 -- and I admire Justice Barak for what he's done for the state of Israel in ensuring an independent judiciary.

GRASSLEY: So then I suppose I can assume that you would disagree with his statement that, quote, "A judge has a role in the legislative project," end of quote.

KAGAN: I do disagree with that. 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 -- 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 -- or -- or by violating individual rights.

But certainly that judges should not be doing what the legislature ought to be doing, which is making the fundamental policy decisions for this nation.

GRASSLEY: One last statement he made, and I assume you would disagree with this as well. At Harvard Law he spoke, quote, "There are cases in which a judge carries out his role properly by ignoring the prevalent social consensus and becoming a flag bearer of new social consensus." Or would there be some time you might find that appropriate for the Supreme Court to take a leap like that?

KAGAN: Well, I'm not exactly sure what -- what he meant by that, but if he meant that the court should sort of make decisions that the American people are -- that more appropriately should make, you know, 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 of the state of Israel in ensuring an independent judiciary and most fundamentally in ensuring that Israel is this strong rule of law nation.

GRASSLEY: Last question. Do you agree with -- do you believe that Judge Barak endorses a philosophy of judicial restraint or judicial activism?

KAGAN: I think that Justice Barak's philosophy is so different from anything that we would use or would want to use in the United States.

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.

GRASSLEY: Thank you.

LEAHY: I'll just put in the record what Justice Antonin Scalia said about, as he said, his good friend Judge Barak, when he gave him the American Association of Jewish Lawyers Pursuit of Justice Award, and Justice Scalia expressed his profound respect for the man. And what 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. Put that in there.

And I'd also note, on the question of looking at foreign law, I'll stick in the record what another nominee said to -- to us, and I think it was a question asked from the Republican side. There are other legal issues that come in which I think it is legitimate to look to foreign law. Let me give you some examples. That was Justice Alito.

LEAHY: And I just note that parenthetically every Republican voted for him.

GRASSLEY: Mr. Chairman, I can only assume that with your quick comeback, you have a copy of my notebook.


LEAHY: You probably wonder why there was a door to your shed that was open this morning.


SESSIONS (?): I respect the chairman's prerogative, but I don't think we should be in a 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 regards to Justice Scalia's comments about Mr. Barak, that that same comment, unlike Dean Kagan, he expressed a clear difference of 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 un -- undreamed of by the most activist American judge, and I think you misquoted and failed to quote completely the nature of those two people's comments.

And 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 the Constitution and laws of this country.


SESSIONS (?): And I would -- I would assume that this nominee, from her statements, would be on the side of Justice Ginsburg who favors that.


LEAHY: I'll -- I'll reclaim -- we'll 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, and we will put into the record, and of course I would I yield to anybody who wants to put something in the record just exactly what Justice Alito said and Judge Posner said and Judge Scalia said.

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.


LEAHY: Thank you.

And with that, I'll yield to...


LEAHY: You see, Senator Grassley, you've got something to look forward to yet.


Senator Specter, go ahead.

SPECTER: Mr. Chairman, thank you.

Are you and Senator Sessions on your second or third round? Some of us haven't had a first round.

SESSIONS (?): Just trying to be worthy of your effective role as ranking member.

SPECTER: May we start at 30 minutes on my clock without Senator Sessions' interjection?


SPECTER: Madam Solicitor General, I begin with concern for separation of powers which is the foundation of the Constitution, and the concerns I have for 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's 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 14th Amendment, and remember how many objections were raised to the activist liberal Warren court for doing that.

I was a prosecutor at the time and the law changed. Constitutional law changed with a (inaudible) in '61 and Gideon in '63 and Rand (ph) 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 United case, really an extraordinary case characterized by what Justice Stevens had to say in dissent. You have Congress constructing a detailed record, 100,000 pages, and Congress has structured McCain-Feingold based upon the standards set forth by the Supreme Court in Austin v. Michigan Chamber of Commerce.

And then as Justice Stevens noted, the court pulled the rug out from Congress, affirming the constitutionality where -- that had been in effect for 100 years. And as Justice Stevens concluded, showing, quote, "great disrespect for a coequal branch."

I will try to make my questions as pointed as I can, and to the extent 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 the customary deference due Congress on fact finding? Isn't that really what Justice Stevens calls is, disrespect?

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. And in those briefs, the government made a similar kind of argument, that great deference was due to -- to Congress in its -- in the creation of the quite voluminous...

SPECTER: Ms. Kagan, I know what you said. You've talked about that a great deal. My question is very pointed: Wasn't that disrespectful?

KAGAN: Senator Specter, as I suggested before, when I walked up to that podium in Citizens United, I thought we had extremely strong arguments. I was acting as an advocate, of course, but I -- I thought we had very strong arguments.

SPECTER: Ms. Kagan, I'm going to move on. I know all of that. The point that I am trying to find out from you is what deference you would show to congressional fact-finding.

Let me move on.

KAGAN: Well, may I -- may I try again? Because I think that the answer to that is great deference to congressional fact-finding.

SPECTER: Well, was it disrespectful or not?

KAGAN: Well, again, I don't want to characterize what the Supreme Court did.

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. v. 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, quote, "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 we can -- the court can disregard voluminous records because of our method of reasoning?

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.

SPECTER: Then you disagree with Chief Justice Rehnquist?

KAGAN: I -- I think that it's -- that it's 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.

SPECTER: Well, I know all of that, but what do you think of our method of reasoning?

KAGAN: As I -- as I said earlier, Senator Specter, I have enormous respect for the legislative process, and part of that respect comes from working in the White House and -- and working with Congress on a great many pieces of legislation.

SPECTER: I'm going to move on to my next question.

Justice Scalia in Lane attacked the standard of congruence and proportionality, saying that this court is acting as Congress' taskmaster.

SPECTER: The court is checking on congressional homework to make sure that it has identified sufficient constitutional violations to make its remedy constitutional and proportional.

I've picked out three instances: Citizens United where Justice Stevens says great disrespect; and the attack by Rehnquist on our method of reasoning; and Scalia talking about proportionality and congruence.

And 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 v. Wirtz, 1968; Justice Harlan, who established that standard, quote, "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 Boerne case, 1997, the court pulled out of thin air a new test. And the test is whether the legislation is proportionate and congruent. And 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?

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 14th 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 v. Lane on the other

SPECTER: I know those cases very well: 5-4, 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?

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.

SPECTER: What was unworkable about the Wirtz test for a reasonable basis contrasted with congruent and proportional, which nobody understands?

KAGAN: Yes, I wasn't -- 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...


SPECTER: Do you think it is workable?

KAGAN: Senator Specter, I've -- I've not really delved into the question in 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's not fair to Congress to keep on moving the goal posts. It's 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."

So I do think...

SPECTER: Ms. Kagan, 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.

And you know a lot of law. Senator Grassley established that. Is it a satisfactory test?

Well, let me move on to 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've spoken about this subject extensively on the floor, citing how emphatic Chief Justice Roberts and Justice Alito were on deferring to Congress. "It's a legislative function. It's not a judicial function," they say. "If you engage in fact-finding, the court does that, the court is transgressing into the congressional area."

And then you have a case like Citizens United and others, and you have the declarations by the chief justice of modesty. You've 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 as being a tremendous jolt to the system?

KAGAN: Well, Senator Specter, again, this is one that as an advocate I've taken a strong view on, which is that it was a jolt to the system. That there were -- there was a great deal of reliance interests involved, that many states had passed pieces of legislation in reliance upon Austin. That Congress had passed legislation after accumulating a voluminous record...


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 prospective justice, do you consider it a jolt to the system?

KAGAN: Senator Specter, it's a little bit difficult to take off the advocate's hat and put on the judge's hat. And 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, the way I approached the case. I hope that I did a good and effective job in it. And I believed what I was saying.

But it's a different role and it's a different thought process, and the role and the thought process that one would use as a judge.

SPECTER: Well, what I'm interested is what should (inaudible) as a judge. But let me move on again.

There's 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's none given, not to jolt the system and be modest, and there is a 180- degree U-turn. And we wonder what we can do about it.

Judicial independence is the bulwark 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 really 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, very tough -- in his book "How Judges Think." And this is what he has to say about the subject I'm addressing, quote: "Less than two 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 debasement of the already debased currency of the testimony of nominees at judicial confirmation hearings," closed quote.

SPECTER: Now, we're trying to raise the level of that currency (ph). I don't believe you want to make a comment about that, but if you do, you're welcome to.

KAGAN: Senator Specter, I -- I assume the good faith of everybody who sits in this chair. And I -- I -- there's no reason in my mind to think otherwise.

SPECTER: Madam Solicitor General, I agree with you as to good faith. And raising these issues in 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.

And I understand the difference between sitting at that witness box 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.

And I was really glad to hear you say, in response to Senator Kohl's questions, that you favor televising the Supreme Court. I think we may be getting closer.

I've been at it for more than a decade with a whole series of bills. And recently, the Judiciary Committee voted out a bill to televise the Supreme Court 13-6, and we did it a couple of years ago 12-6. And I know it's 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 C-SPAN just yesterday shows that 63 percent of the American people favor televising the court. And among the 37 percent who opposed, when they were told that people can only be in the Supreme Court chamber for about three minutes, accommodates 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 -- the American people would like to -- like to know?

We talk about a living Constitution and about the Constitution expressing the changing values of our society, as Cardozo said so eloquently in Palko. 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 lives, death penalty cases for juvenile, who dies, affirmative action, who gets into college, freedom of speech and religion -- the American people responded in a poll to Citizens United, 85 percent thought it was a terrible decision, 95 percent thought that corporations made contributions that influence legislators.

One of the great problems of the skepticism of the American people about Congress -- and is it heavy out there -- it's open season on Congress because of so much of what people think about.

Well, coming back to the court, wouldn't it be -- well, you've already said you're in favor of televising the court, but 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?

KAGAN: I do think, Senator Specter, it would be a good thing from many perspectives. And I would hope to -- if I'm fortunate enough to be confirmed -- to engage with the other Supreme Court justices about that question.

I think it's -- it's 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 -- to -- to know about and understand.

And I also think that it would be a good thing for the court itself, that that greater understanding of the court, I think, would redound to its own advantage. So I think, from all perspectives, televising would be a good idea.

And now I realize 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 -- but -- but that's sort of my going-in thought, which...

SPECTER: I will put into the record what the justices have had to say. I've questioned almost everybody about this subject, and I've had the opportunity to question all of the people on the court now.

But there's a lot -- there are a lot of those who have been favorably disposed to it -- or at least have acknowledged its inevitability -- and remind them that they all appeared on television this year on C-SPAN, and most of them -- many of them have appeared over the years selling books and being in a variety of situations.

KAGAN: It means I'd have to get my hair done more often, Senator Specter.


SPECTER: Let me commend you on...


Let me commend you on that last comment.


And I say that seriously. You have shown a really admirable sense of humor, and I think that is really important. And as Senator Schumer said yesterday, we're looking for somebody who can moderate the court, and a little humor would do them a lot of good.

In the case of Richmond Newspapers v. Virginia, the Supreme Court said in -- 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 chiefly 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 as a legal -- 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?

KAGAN: That's very interesting, Senator Specter. I had never considered the relevance of that case to the -- the televising question, but I think that the -- 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's critical to this issue, as well.

SPECTER: Let me move on to another subject which I consider to be of great importance, and 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; 2007, 75; 2008 -- or 2006, 68; 2007, 67; 2008, 75; 2009, finishing yesterday, 73.

The court leaves a lot of circuit splits unresolved. The court does not hear a great many critical cases. And I discussed this with you in our meeting several weeks ago and wrote you about it, as well, and that is the case involving the terrorist surveillance program.

On the Foreign Intelligence Surveillance Act, which arguably poses the sharpest conflict between the Congress legislating FISA and the president asserting Article II powers, a federal court in Detroit found the terrorist surveillance program unconstitutional. The Sixth Circuit ducked it 2-1 with a very strong dissent 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've legislated giving you discretionary authority, but in cases, many cases, illustratively, the flag-burning case and McCain-Feingold and Federal Labor Standards Act, we directed the court to -- to hear the case.

SPECTER: So I think that it's fair to ask if -- what you would have done, not how you would decide that case, but whether you would -- would take the case. Had you been on the Supreme Court, would you have voted the grant cert in the Terrorist Surveillance Program case?

KAGAN: Well, Senator Specter, if I might, and just to your first point, which was the point about the courts defining docket, I do generally agree with that. I clerked on the court in -- in 1987, which was pretty much at the high point of -- of what the court was -- was doing, about 140 cases a year.

And it is a -- a bit of a mystery why it's declined so precipitously. And -- and I do agree with you that there -- there do seem to be many circuit conflicts and other matters of -- of vital national significance...

SPECTER: The other issue I raised was much more important.


SPECTER: And there are only two minutes left...


SPECTER: ... now.

KAGAN: Senator Specter, the -- the issue about the TSP and the constitutionality of the TSP is, I think, one of the kinds of issues I -- 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 a issue of -- of some vital national importance.

In a -- in a case where the executive branch is determined -- or -- 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. And, of course, the court typically decided...

SPECTER: What -- what jurisdictional bar?

KAGAN: Well, the question whether somebody has standing. 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, and we'll never...

SPECTER: What if you take the case and say they don't have jurisdiction?

KAGAN: Yes. You're -- you're exactly right. And -- and I'm just suggesting that that's often a reason why the court doesn't take a case. If it doesn't know...

SPECTER: I don't care what's often a reason. Here we have a specific case. You've had a lot of notice. It's in concrete. Would you have voted a grant cert?

KAGAN: Senator Specter, I can -- 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 -- how is a person going to know whether the person had been surveilled...

SPECTER: Sixth Circuit decided there was no standing after they heard the case. Well, my time is almost up -- 10 seconds, and I was 13 seconds over last time. There are a couple of other cases -- the holocaust survivors and the 9/11 survivors of victims, which I'll come back to when I have a green light.

LEAHY: Thank you very much, Senator Specter.

And Senator Graham?

GRAHAM: Thank you, Mr. Chairman.

LEAHY: And then we will, just for planning purposes, Senator Graham, we'll go to you.


LEAHY: Then we'll go to Senator Schumer, and then we'll take a short break. Does that work for...

KAGAN: That's good.


Senator Graham's all yours.

GRAHAM: Thank you.

So far have the hearings been what you thought they would be?

LEAHY: And more.

KAGAN: I'm not sure I had -- I'm not sure I exactly pictured it so.

GRAHAM: Let's try to go back in time and say you're watching these hearings and you are critical of the way the Senate conducted these hearings.


Are we improving or going backward?


And are you doing your part?


KAGAN: I think that you've been exercising your constitutional responsibilities extremely well.


GRAHAM: So it's all those other guys that suck, not us, right?


KAGAN: I don't think I'm...

GRAHAM: And there's all those other witnesses that were too cagey. All right. Fair enough.

Now, do you know Greg Craig?

KAGAN: I would say one thing, Senator Graham, which is it just feels a lot different from here than it felt from back there.

GRAHAM: I -- I bet it does. And it feels a lot different when you're the nominee, too, doesn't it? And if it didn't, I'd really be worried about you.

You know Greg Craig.

KAGAN: I do.

GRAHAM: Who is he?

KAGAN: He was previously the counsel to the president.

GRAHAM: Do you know him well? Pretty well?

KAGAN: You know, OK, yes. Well, he's a good guy.

GRAHAM: I'm not trying to trick you.


GRAHAM: I mean, I don't...


GRAHAM: ... I don't have anything on Greg I can find. He said on May 16th that you -- that you are largely a progressive in the mold of Obama himself. Do you agree with that?

KAGAN: Senator Graham, you know, in terms of my political views, I've been a Democrat all my life. I've worked for two Democratic presidents. And those are, you know, that's -- that's what my political views are.

GRAHAM: And would you consider them, your political views, progressive?

KAGAN: My political views are -- are generally progressive, generally...

GRAHAM: Compared to mine for sure, right?


Yes, OK, that's fine. I mean, there's 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.

KAGAN: It would be hard to disagree that elections have consequences.

GRAHAM: Right. And one of the -- and one of the consequences is a president gets to fill a nomination for Supreme Court. That's the power the president has, right?

KAGAN: Yes, sir.

GRAHAM: So would be OK from your point of view if a conservative president picked someone in the mold of a conservative person.

KAGAN: I would expect that.

GRAHAM: There we go. Good. We'll remember that. OK. We may have a chance to bring those words back.

Do you know Miguel LaStrada?

KAGAN: I do.

GRAHAM: How do you know him?

KAGAN: So Miguel and I 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, and Miguel and I were quite...

GRAHAM: Trust me. I don't know, because I could have never gotten there, but I trust you. OK.

KAGAN: Miguel and I were required to sit next to each other in every single class in the first year. And I can tell you Miguel takes extraordinary notes. So it's great. Every time you miss something in class, you could just kind of look over and -- but that's how I know Miguel. And we've been good friends ever since.

GRAHAM: What's your general opinion of his legal abilities and his character?

KAGAN: I think he is a great lawyer and a great human being.

GRAHAM: He wrote a letter on your behalf. Have you had a chance to read it?

KAGAN: I did.

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've known Elena for 27 years. We met its 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 the rare ability to disagree with others without being disagreeable. She is calm under fire and mature and deliberate in her judgments. Elena also -- 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 were no capable person will readily accept a nomination for judicial service."

What do you think about those comments?

KAGAN: Senator Graham, I think that those comments reflect what an extraordinary human being Miguel LaStrada is. And I was deeply touched when I read that letter, deeply grateful to him, of course, and all of the nice things that he said about me I would say back about him double.

GRAHAM: Well, I'm going to give you that chance, because Miguel LaStrada, as most people know -- maybe not everyone -- was nominated by President Bush to the court, and he never made it. I think it's one of the great tragedies for the country that he was never able to sit on an appellate court, but that's the past. And I do think it reflects well of him that he would say such things about you. And 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?

KAGAN: He's qualified to sit as an appellate judge. He's qualified to sit as a Supreme Court justice.

GRAHAM: Well, your stock really went up with me.

GRAHAM: So what I would like you to do since you might one day be on the court yourself, is to, if you don't mind, at my request, write a letter to me, short, as long as you like it, about Miguel Estrada.

Would you be willing to do that the next couple of days?

KAGAN: I would be pleased to do that, Senator Graham.

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?

KAGAN: I do.

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?

KAGAN: I do.

GRAHAM: Do you remember me?

KAGAN: I do remember you.

GRAHAM: OK, good.

Do you remember when I asked you, "Are we at war?" and you said...

KAGAN: "Yes."


Now, that is a bold statement to make, but an accurate statement. What does it mean -- who are we at war with and what does that mean in terms of this nation's legal policy?

KAGAN: Well, we're at war with Al Qaida and the Taliban, and under the AUMF the president has a wide range of authorities with respect to those groups.

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?

KAGAN: Not that I know of, Senator Graham.

GRAHAM: And quite frankly, there shouldn't be, should there?

KAGAN: No, sir.

GRAHAM: Now under the law of armed...

KAGAN: I feel as though we're doing this again.

GRAHAM: We are.

KAGAN: We're sort doing an instant replay.

GRAHAM: Yes, yes, yes, we're going to do this again and I hope we get the same answers. That will help you a lot if we do.


And 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?

KAGAN: Under the traditional law of war it is permissible to hold an enemy combatant until the end of hostilities.

GRAHAM: Right.

KAGAN: And the idea behind that is that the enemy combatant not be enabled to return to the battlefield.

GRAHAM: That's a -- that's a good summary. The problem with this war is there will never be a definable end to hostilities, will there?

KAGAN: That is exactly the problem, Senator Graham. And 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 the enemy combatants' continuing dangerousness. That is a question that I think has not been answered by the court.

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?

KAGAN: Well, Senator Graham, let me take the question and make it into a legal question, because I think it's directly relevant under the Youngstown analysis whether Congress and the president do work together.

GRAHAM: When the two are together, the courts find more power, not less, right?

KAGAN: That is correct.

GRAHAM: OK. Now, you're still solicitor general of the United States. From that point of view, would you urge this Congress to work with the executive branch to find -- to create statutes to help the courts better answer these questions?

KAGAN: Well, Senator Graham, I think I don't want to talk as solicitor general as to legal policy here.


KAGAN: But I will say...

GRAHAM: Go ahead.

KAGAN: ... as to the legal matter, that it makes a difference whether the 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's a reason for that.

GRAHAM: Right.

KAGAN: It's 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.

GRAHAM: Are you familiar with Judge Lamberth and Judge Hogan?

KAGAN: I don't know either of them. I know who they are.

GRAHAM: Fair enough. They're D.C. judges, Federal District Court judges who are hearing habeas appeals from Gitmo detainees. And I'll provide you some of the comments they've 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." And I've 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 Gitmo 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're members of Al Qaida, they've all gone before a habeas judge, and the judge agreed, but they're 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?

KAGAN: Well, as solicitor general, Senator Graham, I have argued the position...

GRAHAM: And I think very well...

KAGAN: ... that this is fully legal.

GRAHAM: ... 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. And what we have to do is find out what that process would be, this hybrid system.

You argued against expanding habeas rights to Bagram detainees held in Afghanistan, is that correct?

KAGAN: I did, Senator Graham.

GRAHAM: As a matter of fact, you won.

KAGAN: In the...


GRAHAM: Initially.

KAGAN: ... circuit.

GRAHAM: And you probably won't be able to hear that case if it comes to the Supreme Court, will you?

KAGAN: Well, that's correct. And the -- and the reason...

GRAHAM: Well, that's good, because we can talk openly about it.


KAGAN: I mean, if I -- if I could -- 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. But 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 about...

GRAHAM: Well, I want -- 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.

And you said previously that the first person you have to convince when you make -- when you submit a brief or take a case on is yourself, is that correct?

KAGAN: Well, I said that in reference to the cases that I argued specifically. Of course, when I -- when I write briefs, I write from -- or when I sign briefs, when I'm counsel of record on briefs, I'm taking the position of the United States, that I'm representing the position that I believe and that our office believes is most consistent with the long-term interests of the United States government.

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?

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 believed that there were very significant United States...


GRAHAM: Well, let me read a quote.

"The federal court should not become the vehicle by which the executive is forced to choose between two intolerable options: submitting to intrusive and harmful discovery or releasing a dangerous detainee."

Do you stand by that statement?

KAGAN: Senator Graham, can I ask whether that statement comes from that brief?

GRAHAM: Yes, it does.


KAGAN: No, I -- I mean, 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. And as you said before, the D.C. circuit, a very mixed panel of the D.C. Circuit...

GRAHAM: Right.

KAGAN: ... upheld our argument.

GRAHAM: You also said the courts of the United States have never entertained habeas lawsuits filed by enemy forces detained in war zones. If courts are ever to take that radical step, they should do so only with explicit blessing by statute. You stand by that?

KAGAN: Anything that is in that brief I stand by as the appropriate position of the United States government.

GRAHAM: Fair enough.

KAGAN: Well, the brief needs to be read by your supporters and your critics because some of your supporters are going to be unnerved by it and some of your critics may like what's in there.

I'm here to say, from my point 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'll 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 is a financier of Al Qaida and they were captured in the Philippines, they would be subject to enemy combatant determination, because the whole world's the battlefield.

GRAHAM: Do you still agree with that?

KAGAN: Well, 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 played is also a different role.

GRAHAM: Let's just stop there. When you were an advocate, you had no problem advocating that position.

KAGAN: There are certain parts of that that I -- 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.

GRAHAM: Attorney General Holder said that the battlefield is the hearts, the minds, and wherever Al Qaida may reside. Do you believe that is a consistent statement with Obama policy?

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. And I'm still the solicitor general, and I still agree with the attorney general.

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?

KAGAN: I certainly would tell him if I thought he was wrong.

GRAHAM: And I think you would tell me if you thought he was wrong, so I'm going to assume you thought he was right, because that's the kind of person you are. And I, quite frankly, think he's right.

Now, as we move forward and deal with law of war issues, Christmas Day bomber, where were you at on Christmas Day?

KAGAN: Senator Graham, that is an undecided legal issue, which -- the -- 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...

GRAHAM: No, I just asked you where you were at on Christmas.


KAGAN: You know, like all Jews, I was probably at a Chinese restaurant.


GRAHAM: Great answer. Great answer.

LEAHY: You know, I could almost -- I could almost see that one coming, and I thought...

GRAHAM: Me, too. So you were celebrating Hanukkah.

LEAHY: Senator Schumer explained this to me earlier.

GRAHAM: Yes, he did.

SCHUMER: If I might, no other restaurants are open.


GRAHAM: Right. You were with your family on -- on Christmas Day at a Chinese restaurant, OK.

KAGAN: Yes, sir.

GRAHAM: 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?

KAGAN: Well, that there was a failed, but -- but only just failed terrorist incident.

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, whatever holiday it may be, aren't we? We're lucky that bomb didn't go off.

KAGAN: Senator Graham, it was a -- it seemed a close thing. And I don't know more than I read in the newspapers about that incident.

GRAHAM: I understand.

KAGAN: I was not, you know, involved in -- in any of the discussions about what to do on that day.

GRAHAM: All right. All right. The Times Square incident, you recall that, right?

KAGAN: Yes, sir.

GRAHAM: We were lucky that van didn't explode.

KAGAN: You know, every time one of these things happens, it is extremely unnerving and -- and, you know, makes us aware of the need to take efforts to make sure that such a thing never...

GRAHAM: Tell me about Miranda warnings. Do we need to read soldiers -- do soldiers need to read people their rights captured in a battlefield in Afghanistan?

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're talking about a battlefield capture and not a -- a -- a criminal trial, an Article III criminal trial, the Miranda issue would never come up.

GRAHAM: So you agree with me that in war you don't have to read the enemy their rights because you're not talking about fighting crime, you're talking about fighting a war, is that correct?

KAGAN: Well, the Miranda issue is only applicable in Article III courts, as a matter of criminal law.

GRAHAM: OK. If you catch a person in Afghanistan...

KAGAN: I should -- 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.

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 -- you don't read the enemy the Article 31 rights when you're in a firefight.

For these hearings to be meaningful and -- and instructive, I think it's good for us to have an open discussion about when we are fighting a war and when we're fighting a crime. What's 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're 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?

KAGAN: Senator Graham, I've never dealt with that question as solicitor general and...

GRAHAM: Just as Elena Kagan.

KAGAN: Senator Graham, I feel as though...

GRAHAM: Harvard Law School dean.

KAGAN: I'm a part of this administration, and I think that, you know, I should let the attorney general...


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 Miranda 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?

KAGAN: So the public safety exception, which comes from the Quarles case, it's -- it's -- it's right now, I think, a limited exception. It enables...

GRAHAM: Very limited.

KAGAN: That's right.

GRAHAM: Very undefined.

KAGAN: It enables the police, essentially, to be able to question, to -- to -- to find the gun, you know, to find something that might pose an imminent risk of public safety.

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 -- 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?

And right now, the law is very -- do you think it would be in the United States' best interest to have clear guidance to our intelligence community, give them the tools and the flexibility when they capture one of these guys, whether it be in Times Square or in Detroit, to find out, without having to do anything else at the moment, what's 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?

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...


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 terrorist 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?

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.

GRAHAM: OK, let's talk about what a judge may think about here. If we applied domestic criminal law to the -- to the war on terror without any hybrid mix, would that be a good thing? I mean, if we took the -- the -- the war on terror and just made it a crime, would we be limiting our ability to defend ourselves?

KAGAN: Well, as we discussed before, Senator Graham, I mean, the administration, of which I'm a part...

GRAHAM: But here's 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're enemy combatants, and that makes sense to you.

What I'm trying -- 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, like Miranda warnings?

KAGAN: I guess I feel -- yes, I mean, the question of detention of enemy combatants is one that I've dealt with as solicitor general, is one that I've argued as solicitor general. This is a question that I have not dealt with.

KAGAN: And -- and I'm hesitant to make any comments about 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.

GRAHAM: Is it fair to say that the letter you wrote to me about the Detainee Treatment Act amendment, I think you -- you call the Graham-Kyl proposal that it would lead to dictatorship or...

KAGAN: No, I didn't say that.

GRAHAM: What did you say? I'm not easily offended. You can say it. It would probably help me in South Carolina...


GRAHAM: Back home, it wouldn't hurt, so I'm not..


GRAHAM: Back home, it wouldn't hurt that the Harvard Law School dean was mad at Lindsey.

But -- but you did. You wrote a letter that was pretty -- pretty challenging.


KAGAN: It was a challenging letter. Senator...

GRAHAM: I've got it. I mean, I'll give it to you.

KAGAN: Senator, I think -- I think I said that we hold, you know, dictatorships to high standards and we should hold ourselves to even higher ones. But I did -- I did criticize the initial Graham amendment.

GRAHAM: And that's absolutely OK. That's absolutely OK. You did criticize the original Graham amendment and I didn't take it personally.

KAGAN: I'm glad to hear that.

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 -- what's the difference between what I proposed and what passed?

KAGAN: Right. Well, I think one difference was that military commission adjudications now receive D.C. Circuit review. In fact, the letter we wrote was about that -- was saying that military commission adjudications...

GRAHAM: Now, did you assume that we precluded final verdicts in military commissions from article 3 review?

KAGAN: Well, my initial understanding of the initial Graham amendment...

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. And we're trying, as a nation, to get this right.

As solicitor general, do you have confidence in our military commissions that we've set up? Do you find that they're a fair forum to try people in?

KAGAN: Senator Graham, I really haven't had any exposure to the military commissions as yet. Of course, there's been no military commission proceedings.

GRAHAM: Have you had exposure to military lawyers?

KAGAN: I think that they are absolutely top-notch.

GRAHAM: What if I told you that the same lawyers who will be doing the commissions are also the same lawyers, judges and juries that would try our own troops? Would that make you feel better?

KAGAN: Well, I -- I do think that the military lawyers with whom I've had the pleasure and honor to work as solicitor general are stunningly good.

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? I guess I'll strike "unconstitutional." Do you believe that this country submitting a -- a suspected terrorist to military commission trial is within our value system?

KAGAN: Senator Graham, I'm part of an administration that clearly has stated that some people...

GRAHAM: Do you personally feel comfortable with that?

KAGAN: I do. I wouldn't be in this administration if I didn't.

GRAHAM: Thank you. Thank you.

LEAHY: Thank you, Senator Graham.

Before I go to Senator Schumer, I should note when Senator Schumer has finished his questions, I'll just mention this here -- we'll have about a 10-minute break.

Senator Schumer?

SCHUMER: Thank you, Mr. Chairman.

And thank you, Solicitor General. I think you're doing just great. I think the hearings are showing you -- 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 the law above all.

I think they're learning, too, that you're a very nice person with a pretty good sense of humor. You know, there was a recent study I read that showed that showed that when he sits on the Supreme Court bench hearing cases, Justice Scalia gets the most laughs.

KAGAN: He is a funny man.

SCHUMER: Yes. If you get there, and I believe you will, you're going to give him a run for his money.

Anyway, it's -- I'd like to ask you a few questions, first about modesty, something we've talked about in this and other nominations. That's a very important quality to me, and I was really pleased to see you speak about modesty in your opening statement. And 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's 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. And 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.

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. And understanding that they're looking after the people's business, that they're 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's a limited role. It's 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 -- the courts should look at the Congress and the president as -- should give 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, you know, a good deal of the benefit of the doubt, to try to look at those congressional findings that Senator Specter was asking me about, to really explore what Congress thought it was doing. And there will be some times where the courts will have to say, "No, Congress has overstepped. Congress has violated individual rights. Or Congress has -- 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's 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's important because it leads to predictability and stability in the law. But it's important also, precedent itself is a -- it's -- it's a kind of measure of humility. It's 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's 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's a doctrine really of humility, of judicial humility.

It's also a doctrine of constraint. It constrains judges and makes sure judges that aren't importing anything inappropriate into the decisionmaking process; so the judges aren't taking their personal view or their personal commitments or their political commitments and using those in the decisionmaking process. If you're -- precedent binds judges and that's a very good thing for the legal system for that reason, too.

And I suppose the third part of judicial modesty is a set of rules really about deciding cases. It's making sure that you have a case before you; that you're not deciding an abstract legal issue. It's taking one case at a time, not really thinking, you know, 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's avoiding constitutional questions if you can in favor of statutory questions. It's generally making sure that you're 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 -- have called these passive virtues, I think are very important.

SCHUMER: Well, I think that's a great answer. It's almost a textbook-like answer and I hope the Supreme Court continues to follow it, or follows it.

SCHUMER: Let me just ask you this. Would your own personal views ever play a part in interpreting the statute, given your definition of modesty?

KAGAN: They would not, Senator Schumer. I mean, with respect to a statute, the only question is Congress's 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, you know, sometimes that won't be altogether clear. Sometimes Congress leaves ambiguities or uncertainties of various kinds, and it's the court's job to try to clarify those ambiguities and to try to remove those uncertainties. But it should all be done with the question of what has Congress intended here?

And -- and to the extent that, you know, the text suggests that, all well and good. To the extent it doesn't, the -- 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's will.

SCHUMER: Right. And just one final question. Let's just pause it for the moment. The term "activism," "judicial activism" is bandied around a lot, but it's, sort of, the opposite of modesty as you defined it and, I think, as most define it.

Just let me -- it's my view that activism, so to speak, which means beyond -- going beyond the bounds of modesty that you've outlined, can come from the right or from the left. It could probably even come from the middle in certain ways. Is that -- do you agree with that?

KAGAN: I think activism does not have a party.

SCHUMER: Or a philosophy?

KAGAN: Or a philosophy.

SCHUMER: There can be liberal activists and conservative activists.

KAGAN: I think that that's right.

SCHUMER: OK. All-righty. Let's go on now to pragmatism, the second quality that you've exhibited and talked about. And to me, at least, I find it refreshing that you're -- about your nomination, is 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.

And to me, the practical experience you had is almost the best one can have in terms of being a good judge because you've had to deal with the law in a very practical way.

And what I mean there is your tenure as dean of Harvard Law School. You managed a budget of over 160 million people, 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.

And your job, as dean -- I'm not saying as justice -- would -- was to, sort of, bring them together and create a better tone and better atmosphere, which you did, which most observers found -- you know, it almost -- 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?

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 my listening.

And 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 -- and I thought that my faculty were, sort of, endlessly generous to me and good-spirited, in terms of the things that they did for the school.

And I think that that was so in part because people -- people respected that I listened to people, that I was willing to change my mind if -- if they could convince me that I was wrong, and sometimes I was wrong. And I, you know, got a lot of good ideas from my faculty along the way.

So I suppose the -- 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.

SCHUMER: And how did you -- how were you so successful in bringing people of different views who were pretty fractious when you walked in -- as 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?

KAGAN: Well, Senator Schumer, I think, you know, everybody did it. I mean, I don't think -- I don't think I did it. I think everybody did it. And I think all -- 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. And it was a little bit of a, kind of, virtuous circle, you know. Because once it started, it just -- it kept on going. The ball kept on rolling, because people saw, you know, some of the good things that it -- it brought.

SCHUMER: This relates to something I've given a lot of thought about and still haven't come to any firm conclusions. What's the role of pragmatism in judging, in this sense?

This is a key question I've wrestled with. What happens when the law seems to lead to a result that just doesn't make any sense?

I've occasionally read decisions at every level -- they could be local level and individual stuff -- and 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 that makes sense when it's actually applied?

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's intent. And the text might say x for a variety of reasons, even if it's -- even if you think, well, 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 -- and -- and a legislative text is the result of all that deliberation and all those compromises.

And to extent that the text says something clear about a statute, the court should stick with that and stick with it even if, in the court's view, that's not what makes sense.

Now, sometimes there's ambiguity in statutes. And then the question is, well, what do you do? How do you clarify that ambiguity?

And one of the things to do is to look to Congress's purpose in enacting a statute and try to figure out, you know, if -- if Congress knew that this result would happen, is that result consistent with Congress's purpose or not?

And 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, you know, 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.

And one way to do that is to say, well, what would that interpretation of the statute actually do in the world and is that consistent with what Congress thought ought to be done?

SCHUMER: Right, right. Good.

OK. Let me go to a couple of specific cases. One case, a recent case, was Gross v. FBL.

And 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, almost said to a plaintiff who thought he or she was discriminated against, we're going to, sort of, put you in a catch-22; you've 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 had some latitude in terms of interpretation.

I'm not going to ask you to comment because it's a specific case, but I'd at least 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's 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, and while I disagree with Buckley v. Valeo, it certainly undertook a lengthy First Amendment analysis.

SCHUMER: Yet, as we know, no amendment's absolute. The First Amendment isn't absolute. And there are countless cases, you know, related to libel, 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 and 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?

KAGAN: The First Amendment has not been thought to be absolute. I think that the last justice who thought that was -- was -- was maybe Justice Black. I think almost all justices have understood...

SCHUMER: I think he wrote a lot of dissents.

KAGAN: You know, you -- you yell "fire" in a crowded theater or you yell into a person -- to a cardiac victim's ear, and nobody is going to protect it under the First Amendment.

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 with some of the -- some of my colleagues here -- studied and considered the effect that special interest money had on campaigns. Congress came to the commonsense conclusion that these expenditures had a poisonous effect on our democracy.

But the five justice majority ignored Congress's judgment -- we won't go into the fact that they went out of their way to find the case -- and undermined Congress's powers to pass laws based on Congress's collective judgments.

And I think, you know, some of my colleagues on the other side of the aisle missed the mark of what McCain-Feingold was -- 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 what 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's 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 PACs. 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. And, in fact, the court many times has upheld Congress's right to pass anti-corruption campaign finance laws. In 2003, the court said preventing corrupting activity clearly qualifies as an important governmental interest. And yet, just seven 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?

KAGAN: Well, Senator Schumer, I argued the case before the court. I -- I focused quite heavily on the congressional record that -- 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.

SCHUMER: Yes. 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 aberration -- what do you think of that?

KAGAN: Oh, I'm sorry. Senator Schumer, the -- the government argued that it was not an aberration. And this was, you know, very much at issue in the case.

This was certainly the theory of -- of the other side, and it was adopted by the court, and specifically discussed in the chief justice's opinion, that -- 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 -- of -- of the appropriate role of...


SCHUMER: Yes, 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?

KAGAN: Yes, that's correct.

SCHUMER: And the government argued that moving -- you know, distinguishing -- moving away from Austin was the aberration, right?

KAGAN: The government certainly argued that -- that moving away from Austin would be a -- a disruption of the system, especially given the reliance that Congress and that the states had placed on Austin.

SCHUMER: Right. OK, I'd like to move on here.

Just one little thing on these revered judges. You know, this was about the Israeli justice, Barak. I'd just like to ask you -- you -- you introduced a whole lot of people. You said you'd do a very nice introduction for any of us, which we appreciate.

Here's something you wrote about Judge Posner, who clearly doesn't have the same ideology, the same views as Justice Barak, or of -- 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 parties' conflict and their inability to resolve them? He's 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 -- 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?

KAGAN: I think that that's a pretty good description of Judge Posner, but, no, I don't think you should think that.

SCHUMER: Same as with Judge Barak, right?

KAGAN: Same as with Judge Barak.

SCHUMER: Yes, OK, and we could probably find you wrote glowing tributes to all kinds of people of many different ideologies, so it'd be impossible for you to agree with all of them, right?

KAGAN: One of my greatest introductions was to Justice Scalia...

SCHUMER: There you go. OK, good.

KAGAN: ... whom I, in fact, have the greatest admiration for.

SCHUMER: Thank you for that.


Let's go a little -- let's go a little to foreign law, which came up a few times here. Some of your critics have implied that you'll 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 -- for -- 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?

KAGAN: Senator Schumer, the American Constitution is an American document with an American history with American precedents. And the -- the -- 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 -- that I suggested, where international law or foreign law is -- is -- is relevant. You know, the meaning of ambassador, the -- 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.

SCHUMER: All right. Is there any -- just tell us why you put international law into the curriculum at Harvard. Is it because, as some of the critics I've seen in some of the blogs and other places -- is it, as some of these critics suggested, because you believe it's more important than U.S. constitutional law?

KAGAN: No, Senator Schumer. It's what I said to -- to Senator Grassley, U.S. constitutional law is basic, is fundamental, but I do believe that law graduates in our world today need to have some understanding of the -- the -- 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're going to be at a competitive disadvantage.

SCHUMER: Right. Do you know any law school that doesn't have some kind of international law course in its curriculum?

KAGAN: I think that that would be unthinkable.


And, of course, when an American judge considers many -- you know, considers -- they consider many nonbinding sources when they reach a determination.

SCHUMER: I asked this of Judge Sotomayor, because it came up then.

Judge Roberts in -- Judge Roberts' prominent citation in a Voting Rights Act case decided last year, Justice Roberts, he cited an article by NYU Professor Samuel Issacharoff 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?

KAGAN: Some law professors would like them to be binding, but, no, I -- I agree, Senator Schumer, that -- that the way they're cited in -- in these decisions are just -- you know, this isn't -- this isn't binding, this isn't precedent, but this is a person who had a good idea, and -- and the decision in some sense cites or reflects that.

SCHUMER: And it sure wasn't improper of the chief justice to consider such sources in reaching his decision, was it?

KAGAN: Absolutely not.

SCHUMER: And how about Justice Scalia? He has a well-known regard for dictionary definitions in determining the meaning of words or phrases in 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?

KAGAN: That is correct.

SCHUMER: OK. But so was it -- but was it improper for Justice Scalia to consider dictionary definitions?

KAGAN: Of course

SCHUMER: Right. So in conclusion, wouldn't agree American judges of all ideological stripes keep their minds open to sources and ideas other than those that are directly binding them on them under the Constitution and the laws of the United States?

KAGAN: I -- 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.

SCHUMER: Thank you.

Mr. Chairman, I'll yield back my remaining time.

LEAHY: Thank you very much.

And, of course, I'd encourage any senators who want to do that. And we will stand in recess for approximately 10 minutes, and everybody get a break.

How are you doing?

KAGAN: I'm good.

LEAHY: OK. I'm enjoying some of the ethic humor here from...


Wait till I talk about the Italian side and the Irish side of my family and the French-Canadian side of my wife's family. Oy vey, we'll have something going.

We stand at recess.


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 I don't -- it's sheer envy. I can't -- I can't stop them.

We have -- we're going to see how far we can go. And, Senator Cornyn, you've been waiting patiently here for a day-and-a-half. Please go ahead.

CORNYN: Thank you, Mr. Chairman.

Ms. Kagan, you -- you had an interesting and refreshing exchange with Senator Graham a little earlier about Miguel Estrada, who, as you know, was nominated to the circuit court of appeals, and -- and I would say that your friendship and mutual admiration is apparent.

And -- 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?

KAGAN: You know, I -- I -- I don't think that we -- we've sort of been in and out of the touch during those years. I'm not actually sure that we talked during that time. We might have; I'm just not sure.

CORNYN: And I gather you did not have any public comment about the filibuster of his nomination?

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 Keisler. I think, if I didn't with Miguel, it's because he never asked me to do so.

CORNYN: You've had a very interesting questions-and-answers sessions from 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 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 -- about our judiciary and the Supreme Court as a result of these -- of these hearings.

While I agree with you on that point, I -- 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 what I'd like to go back to is where I started in my opening statement, talking about the traditional concept of the role of a judge and an activist, as I try to define it, one that -- traditionalists who felt bound -- feels 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 V, and you said by, 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 14th Amendment believed it allowed segregation in its 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 14th Amendment by overturning the repugnant and constitutional separate but equal regime sanctioned by Plessy v. Ferguson.

And so I support Brown on originalist grounds. I would just refer to you, Senator Charles Sumner, a leading framer of the 14th 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.

And between 1870 and 1875, both houses of the United States Congress voted repeatedly by significant margins, majorities, in favor of legislation premised on the theory that segregation of 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 14th Amendment with the intentions of the framers of the 14th Amendment. And so on this, you and I may disagree, but let me...

KAGAN: If I could, Senator Cornyn?


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 14th Amendment in 1868. And I think that there are a variety of other practices that similarly were countenanced in 1868 that are not now.

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's exactly what has occurred.

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 court can change the Constitution? Or do you agree with me that Article V has the sole means by which the Constitution can be modified, that is, either through a constitutional amendment or a constitutional convention proposing constitutional amendments, which are later ratified by three-quarters of the states?

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.

And 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.

CORNYN: Do you believe in the idea of a living Constitution, that the Constitution itself has no fixed meaning?

KAGAN: You know, I -- 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 that the courts carry on as a highly constrained one, as constrained by text, by history, by precedent and the principles embedded in that -- in that precedent.

So the courts are -- are -- are limited to specifically legal sources. It's a highly constrained role, a circumscribed role. So -- so to the extent that that term is used in such a way as to suggest that that's not the case, I -- I don't agree with that.

But I do think, as -- 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.

CORNYN: So I'm clear, do you agree or disagree that the Supreme Court of the United States can change the Constitution?

KAGAN: The Constitution does not change. The Constitution is -- you know, unless by amendment.

KAGAN: The Constitution is a document that does not change, that is timeless, 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. And in that process of being applied to new facts and new circumstances and new situations, development of our constitutional law does indeed occur.

CORNYN: And so do you agree that honoring the Constitution means respecting only the ability of the people to change it through constitutional amendment under Article V?

KAGAN: Senator Cornyn, Article V gives 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.

CORNYN: And I -- I can't disagree with what you just said. But to me when you interpret the Constitution, 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?

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.

CORNYN: As I've...

KAGAN: So just to, you know, give a concrete example of this...


CORNYN: 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, that is the belief that there is no such thing as a fixed meaning of the Constitution and laws, but rather judges possess some sort of power 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?

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 precedent.

But they're always constrained by the law. It's law all the way down.

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 then 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 framers' Constitution, the Supreme Court has an important role in limiting the reach of the Congress, which in my experience and my observation knows no limits to its own power.

The only way Congress is going to be restrained is one of two ways. One is either the court is going to say you've gone too far, which occasionally they've done, and otherwise, to have the people amend the Constitution, either through the 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?

KAGAN: Senator Cornyn, I -- I guess I actually think that 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 in Gibbons v. Ogden, that was the first place that -- or 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's power -- this was basically until about 1935 -- imposed very significant powers -- limits on Congress's power under the commerce clause.

At that point, a switch took place 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.

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 decide or tell us how you would decide the case, but, for example, many Americans are concerned that the federal government in the recent health care legislation that was passed, that Congress 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's 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 federalist 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, the Lopez case and others, did begin to work a little bit around the edges. But if Congress can force people to -- 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...

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. And 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.

CORNYN: And would you agree with me that if the Supreme Court of the United States is not going to constraint 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 pass them 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 other recourse of the people to a limitless reach of the federal government, assuming the Supreme Court won't do it?

KAGAN: Well, I do think that there are limits on Congress's 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. And -- and with -- but with -- but within that you're quite right that Congress has broad authority under the commerce clause to act.

KAGAN: And, you know, 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.

CORNYN: Under Article 5 of the Constitution -- in other words the amendment process?

KAGAN: Yes, yes, yes.

CORNYN: Either through a constitutional amendment proposed by Congress or a constitutional convention?

KAGAN: You know, any part of it -- any part of the Constitution can be amended through Article 5.

CORNYN: I was -- I was pleased to hear you say that once decided by the Supreme Court, even by a 5 to 4 margin, that cases like Heller, McDonald, 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?

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 -- and nonetheless you are bound by that decision. That's -- if the doctrine of precedent enabled you to overturn every decision that you thought was wrong, it wouldn't be much of a doctrine.

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 next Congress and essentially repeal a congressional act. That's entirely appropriate should Congress decide to do that. Correct?

KAGAN: That's quite right, Senator Cornyn. It's a really fundamental difference between the legislative process and the judicial process. And the reason that the doctrine of precedent has developed -- well, 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 view prior decisions with a great deal of humility and deference.

CORNYN Well, it would -- it would be a strange system indeed if succeeding Supreme Courts -- in other words, once you're confirmed to the Supreme Court and are 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?

KAGAN: I -- I do believe that, Senator Cornyn. I think 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.

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 advocates as "gunners." But I really didn't take that too seriously. I just thought it was kind of -- made me chuckle a little bit.

KAGAN: You know, I don't know what you're referring to, Senator Cornyn. I have not seen that ever.

CORNYN: OK. Well, maybe I'll show that to you sometime.

But I just want to...

KAGAN: You know, "gunner" is a kind of law school term of art.

CORNYN: Well, basketball, law school, whatever, it's...

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 weapons 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 an 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?

KAGAN: Senator Cornyn, I have 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. And I think the kinds of provisions listed in Heller are felony-in- possession laws, are laws regulating the possession of guns in certain sensitive places. And I think there's one dealing with various commercial activities regarding guns.

CORNYN: Right.

KAGAN: But -- 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.

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 in the -- after the McDonald case was decided as well.

Ms. Kagan, one of the things that you've heard a lot of us talk about season 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. And I congratulate you on your testimony here today. I

think -- I think you' done a good job of explaining from the witness chair how you would decide cases.

But one of the things 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 God children 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," close quote.

But on Monday, in the dissenting opinion filed by Justice Sotomayor, along with Justices Breyer and Ginsburg, that dissenting opinion said, quote, "The framers did not write the Second Amendment in order to protect a private right of armed self-defense," close quote.

I don't know how you reconcile those two statements -- that there is an individual right, and then to conclude later on 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 texts, history or underlying rationale that would warrant characterizing it as fundamental in so far 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, and in fairness, does appear to be a direct contradiction of what Judge Sotomayor said in her confirmation hearings, with what she has decided on 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 the qualifications, background, experience, but the -- but the judicial philosophy and approach of the nominees 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?

KAGAN: Senator Cornyn, I think that Heller is settled law and Heller has decided that the First -- the Second Amendment confers such an individual right to keep and bear arms.

CORNYN: And do you believe 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 it would not be controlling?

KAGAN: There is -- there is no reason I know of that McDonald as well as Heller is settled law entitled to all the weight the precedent usually gets.

CORNYN: 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.

CORNYN: And I think a number -- in the opening statements you heard a number of differences in 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 -- 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 those restrictions. Did I understand that correctly?

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.

CORNYN: Let me ask you one last question in the few seconds we have. Let's -- 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 so, in effect, trying to put a thumb on the balance 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?

KAGAN: Senator Cornyn, I think that the court does it, but not by looking directly at motive. 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 -- 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, you know, 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 viewpoint discrimination and is pretty much presumptively prohibited.

LEAHY: Thank you. Senator Durbin?

DURBIN: Thank you, Mr. Chairman.

Ms. Kagan, welcome.

You're 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 two years, the Senate would join the justices of the Supreme Court for dinner at the Supreme Court building.

It's one night out of two years and the only time 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." And 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, and I quote him, "We're going to do something about 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 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 five grams of crack cocaine carries the same five-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/powder 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 Reed, 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?

KAGAN: Senator Durbin, the -- 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 -- 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 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 the -- the distinction that does exist is a distinction that has a great deal of racially disproportionate impact.

I know that Congress 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 crack and powder cocaine.

As a policy aide and -- to President Clinton, and President Clinton felt strongly that it should go down. I tried to the best of my possibility 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.

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 the system -- I mean, in light of your training in the law and all you've done, when you look at our system of corrections, 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?

KAGAN: Senator Durbin, the -- the crack/powder distinction is the one that I've dealt with most.

KAGAN: 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 appropriately implements that law.

So, you know, I think this -- 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 -- it's a kind of an 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 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.

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. And if you look back at his political origins, we came out of different branches, or from different branches of the Illinois political tree; that's for sure. But in the time that he served on the court, over 30 years on the court, I really have 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 you judicial careers. The first was from Justice Harry Blackmun, and Linda Greenhouse wrote this book that I've quoted from before. In

Justice -- 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 and all the cases that had come before him.

Justice Stevens had a similar epiphany in the case of Baze v. Rees, and 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. And I think -- I know what your answer is 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?

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'll repeat today, which is that the constitutionality of the death penalty generally is established law and entitled to precedential weight.

DURBIN: You...

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.

DURBIN: Now I'll ask you to reflect on what happened at the end of the -- end of the judicial careers of Justices Blackmun and Stevens, where, after considering all of these death penalties throughout their time on the bench, death penalty cases, I should say, 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?

KAGAN: I don't know, Senator Durbin, and I would be reluctant to speak for either one of them. This is obviously a -- a difficult area of the law, an area in which there are great stakes and where people and judges feel their responsibilities in -- as very heavy, and appropriately so.

As I -- 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. And he thought that that was inappropriate because of the weight of the doctrine of precedent.

DURBIN: When you clerked for Justice Marshall, his views on the death penalty were well known. And can you recall conversations with him on the subject when you were his clerk?

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 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.

DURBIN: And for the record, I mean, your position, as you view this issue, if you are confirmed and become the Supreme Court justice is -- would be different than that of Justice Marshall?

KAGAN: Senator Durbin, it would be, because I do believe that the constitutionality of the death penalty is settled precedent, going forward, and Justice Marshall did not believe that.

DURBIN: General Kagan, you've been nominated to replace Justice Stevens, who led the Supreme Court's effort to rein in the Bush administration's claims of executive power. The American people, I think, need 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 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 could 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 to use military force permits the detention of someone who provided substantial support to the Taliban, Al Qaida 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 congressional 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?

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 United States government...

DURBIN: Advocacy.

KAGAN: ... and are -- I have a client, and I'm the best advocate I possibly can be for that client.

KAGAN: And the role of a judge is different from the role of an advocate, and it is important to recognize that .

DURBIN: And in this particular area, the Supreme Court has not ruled on the legality of detaining and individual for providing material support to terrorism, is that not right?

KAGAN: The Supreme Court in Hamdi discussed only the detention of enemy belligerents who are picked up on the battlefield.

DURBIN: And in Hamdi, Justice O'Connor famously said "the state of war is not a blank check for a 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?

KAGAN: Yes, your understanding is mine. That Hamdi talked only about enemy belligerents who are picked up on the battlefield.

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 versus 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 was pent -- 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?

KAGAN: Senator Durbin, I did write that letter. And it was a letter that urged Congress to -- really the principal point that we were making in that letter was that the adjudications made by military commissions ought to be reviewed in Article III courts.

And as Senator Graham and I discussed earlier, Congress did, indeed, do exactly 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 to 14.

And one of the things that that piece of legislation did was exactly what -- I'm not remotely suggesting cause and effect, but the letter urged that there be Article III review and the Kyl-Graham-Levin Amendment provide an Article III review of military commission determinations.

DURBIN: I bring this up because it has 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 versus Bush, the Supreme Court agreed with your conclusion in that letter, even before the passage of this Graham-Kyl-Levin Amendment.

And it held that holding that it violates the U.S. Constitution to deny Guantanamo detainees the right to habeas. Justice Kennedy wrote for the majority, said "the laws and Constitution are designed to survive and remain in force in extraordinary times." And Justice Stevens, who was fifth vote in the case, and no surprise Chief Justice Roberts and Justice Alito dissented.

So even before the passage of this legislation by 84 to 14, the Supreme Court had agreed with the conclusion in that letter that you sent, which I think is a pretty good validation of the point that you were making.

I'd like to ask one other area that has come up here a couple of times. And 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 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, it just doesn't seem to me to reflect the reality of our system of justice and our history on the court.

And I will acknowledge, and I certainly wouldn't question Justice Cornyn's conclusion that he thinks Brown versus Board of Education had been well hidden in the 14th 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, plus it 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 can be reached.

Certainly that's what Brown teaches us. That in the same 14th 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?

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. That the role of a judge is to determine as best that person can what the law requires, and then to do that. 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, the Constitution require in a given case.

And that can happen in the cases of the kind that you suggested in Brown. But it happens really all over the place. 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 that 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, and the Supreme Court decides 9-0. And, you know, it's all easy. But there is some very difficult cases which involve clashes of constitutional principles.

DURBIN: So let me -- if I can follow-through on one that I've not been able to raise, the Griswold case. Griswold versus Connecticut in the 1960s when the state of Connecticut was basically regulating the availability of family planning and birth control.

And this case challenged that law as to whether Connecticut had that right. And 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.

And some who analyzed it and took a look at Justice Douglas's opinion, writing for the court, were kind of stunned to see that he even went to the Third Amendment to say that that guaranteed a right to privacy, the right -- privacy in our homes.

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?

KAGAN: Well, Senator Durbin, I actually think that Griswold and the holding of Griswold does have grounding in the constitutional text. And the way that most justices have thought about this is that the 14th Amendment, the due process clause of the 14th 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 14th 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 decisions 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 14th Amendment's protection of liberty.

But -- but -- but the liberty clause of the 14th Amendment surely does give rise to some real disagreement in -- in -- in other cases, the extent to which that spear extends. And -- and those are, one -- but -- but not the only kind of -- 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, and -- I mean, it -- 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 activity, certain kinds -- assistance to terrorist organizations that took the form of speech.

And -- and when I was arguing that case, I was subject to questions, and -- 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 -- on the other.

And, you know, that's a case in which this -- this clash of constitutional principles can occur, in which -- in which reasonable judges can -- can 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. That's not to say that everything is easy in the world of -- of constitutional law or, indeed, of statutory law.

DURBIN: Thank you very much, Ms. Kagan.

Thank you, Mr. Chairman.

LEAHY: Thank you very much.

And, Senator Coburn?

COBURN: Thank you. Am I next to last, Mr. Chairman, or last? Or what's our plan?

LEAHY: Well, let's see how we go.

COBURN: All right. Thank you.

Well, it's been a long day for you. Thanks for being here.

LEAHY: It's been a -- yes, and I'm concerned about the -- the witness and her stamina. Mine's...

COBURN: Her reputation says she's tough as nails. She can make it.

KAGAN: If you say so.

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 -- a couple areas. One of the people 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 -- 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 conservatism or my fiscal conservatism.

And one of the things I told you, I -- I want America to know who you are. And -- and, you know, 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 -- where I come from. And it's not wrong to have that belief system. It doesn't mean mine's right and yours is right, 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 -- is inappropriate, please tell me.

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 a very different...


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 have -- 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.

KAGAN: Can I interrupt you on that one, too?

COBURN: I'll give you a chance. You're for -- 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 is make of 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 -- I believe you have the intellect, superior intellect, and ability to reason. And I've listened to a lot of it here. But -- but -- but -- and, again, there's nothing wrong -- I love Russ Feingold to death, but we're totally different. And that's one of the things that makes our country great.

But it's not something that -- 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 -- and those are a part of who you are. And a part of who you are will in some small instance 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 -- 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 establish that. And I want 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?

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 -- you said as solicitor general I advocated the use of foreign law in some circumstances. And I do just want to make clear that what I said in those -- those questions...

COBURN: Here's your quote, exactly...

KAGAN: ... 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...

COBURN: Well, but that isn't what you said here.

KAGAN: Well, I think, Senator Coburn, with all respect, that if you look at the question and if you look at the answer, I was speaking in my role as an advocate, saying that the -- 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 is taking will prevail.

COBURN: But it's not your position, because some other justices are using foreign law, you have the authority to do that, as well?

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 -- is what I...

COBURN: Well, let me -- let me read something to you. As -- it's obvious I'm not a lawyer, OK? It's pretty obvious. But Article III, 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 maturity, much like the Israeli judge, that we -- we start reaching beyond the Constitution. You said it was all law. You -- 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 sometimes to use foreign law to interpret our Constitution, our statutes, and our treaties.

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 -- as precedent or as an independent basis of support in, you know, 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 -- but -- but they might be relevant to interpretation of -- of -- of...


COBURN: Relevance is about getting knowledge and gaining knowledge, but there's a -- 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.

KAGAN: Well, I think I agree with you on that, Justice -- Senator Coburn.

COBURN: Don't worry. I will never get there.


All right. Let -- let me move on, then, if I -- 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 that. You were being asked a question, and 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 it 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 the precedent more important than original intent?

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 -- the First Amendment doctrine that's been established over 100 years departs significantly from the original intent of the framers.

And -- 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 that was something that the framers would not have understood. Now...

COBURN: Why would you think they wouldn't have understood that? I mean...

KAGAN: Well, I think that...

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.

KAGAN: I think that this -- 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 -- unless the decision in New York Times v. Sullivan was issued, unless the...

COBURN: So let me go forward with that. Who can change precedent?

KAGAN: Well...

COBURN: Let's have a little law lesson here. Who can change precedent?

KAGAN: Well, the court can, but it's a very high bar.

COBURN: OK, I know. But they can, right?

KAGAN: It -- the court can change -- can overturn a ruling, but it's a very high bar. The precedent...

COBURN: What does a high bar mean to the average person watching this hearing today?

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 becomes...

COBURN: So, for example, Brown v. Board of Education, that upset precedent, Plessy v. Ferguson, on its ear, didn't it?

KAGAN: It did, Senator Coburn. I think that...

COBURN: So what was the purpose in changing the precedent? Was it to change Plessy v. Ferguson or was it to go back to original intent? That's -- that's -- that's where 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 -- 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. And -- and that's dangerous territory for confidence in the court.

KAGAN: Senator Coburn, I -- 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...

COBURN: Historically speaking.

KAGAN: ... historically speaking and currently. And -- and 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 -- the same principle that I'm trying to state, is that one should approach the question of constitutional interpretation and -- and -- and pragmatically, without a single overarching 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 -- and -- and other times it may be an unknowable or it may be far removed from the current problems we face.

COBURN: So -- but that's -- but that's a judgmental decision, correct? You're -- 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 be seem to be knowable to another judge, correct?

KAGAN: Senator Coburn, I don't disagree with you that judging requires judgment.


KAGAN: And...

COBURN: Well, that's the whole basis 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 -- 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 -- 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.

KAGAN: So, 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 United States government.

COBURN: Well, then let's move back to your political hat. How are you going to take that off?

KAGAN: Senator Coburn, that hat has not been on for many years.


Senator Coburn, I know that, you know, some people have said, "Oh, you know, 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...

COBURN: Let me ask you another question then on it. And this is an enquirer. This is softball, OK? What do you say to...

KAGAN: You promise?


COBURN: I promise. What do you say...

KAGAN: Because it's getting late.

COBURN: 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 -- what assurance and -- and -- other than knowing Elena Kagan, that, you know, we know who you are, we've met you, we've read about you, both positive and negative. What -- what are the assurances that you'd tell the American people is, "You can trust me to make a pure jurist decision that I'm not going to be biased"? What -- what is it that you would tell?

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 the policy. It's all about law and making your best judgments about what the law requires.

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 and a fashion that's temperate and respectful of other people's views, and, you know, with -- with respect, which I -- I don't think is partisan in the kinds of ways that a few people have suggested.

COBURN: You can understand why some of us -- when Justice Sotomayor told us -- you know, I mean, her words were, "I think I agree with you, Senator Coburn, we shouldn't use foreign law." And then one of her opinions, she's embracing the use of foreign law on a decision.

You know, we've 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.

And 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 Alito 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 -- 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, got to do it, does that violate the commerce clause?

KAGAN: It sounds like a dumb law.

COBURN: Yes, I got one that's real similar to it I think is equally dumb. I'm not going to mention which -- which it is.

KAGAN: But I think that 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 -- that they think are -- are senseless just because they're senseless.

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?

KAGAN: Senator Coburn...

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 that we would be so stupid to take our liberties away by expanding the commerce clause this way.

As a 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 the -- to be the consequence of Congress...

KAGAN: I'm sorry, Senator. Where is this from again? I'm sorry.

COBURN: This -- this is the Federalist Papers.


COBURN: OK? This is number 44. I presume you've read this book?

KAGAN: I have.

COBURN: I thought you might have.

KAGAN: It's a great book.

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, is if the state legislature should violate their respective constitutional authorities.

In the first instance, the success of the usurpation 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."

And 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 -- 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, know the acts 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?

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 -- I've talked about it is -- as policing the constitutional boundaries and making sure that Congress doesn't go further than the Constitution says it can go, 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's authorities are enumerated in Article I 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 principal protector against bad laws is the political branches themselves.

And -- 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.


KAGAN: Now, that's not always the case, but -- but there is substantial deference due to political...


COBURN: I'm running out of time. I want to give you another condition. What if I said that if eating three fruits and three vegetable a day would cut health care costs 20 percent, now -- now we're into commerce. And since the government pays 65 percent of all the health care costs, why -- why isn't that constitutional?

KAGAN: Well, Senator Coburn, I -- I -- I feel as though the -- the -- the principles that I've given you are the principles that the court should apply with...


COBURN: Well, I have a little problem with that, because if -- if we're going to hang ourselves, and as our founders, three of the critical authors of our Constitution thought the judiciary had -- 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 have a $1.6 trillion deficit, that our kids' future has been mortgaged, we may never recover from.

That's not an understatement at all. In 25 years, they're going to -- each of our kids are going to owe $1,130,000 before they pay -- pay interest on that before they do anything for themselves or their kids.

So the fact is, is that we have this expansive clause, and we have to have some limit on it. And if the -- 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.

And -- and -- but the point is, is their original intent is that you wouldn't ignore their original intent. And what we find ourselves today on the commerce clause is that with -- through a period of precedent-setting decisions, we have allowed the federal government to become something that it was never entitled to become, and -- and with that, a diminishment of the liberties of the people of this country, both financially and in terms of their own liberty.

KAGAN: Well, Senator Coburn, I -- I -- I guess a few points. The first is -- is I think that there are limits on the commerce clause of -- of the ones I suggested, which are the ones that are articulated, were articulated by the court in -- in -- 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 -- the -- the second point I would make is -- is I do think that very early in our history -- and -- and especially I would -- 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 -- 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 -- and -- and I guess the third point is -- is just to say that I think the reason for that is -- 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.

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 helped create it as a court because you allowed something other than what our original founders thought was a legitimate role for the federal government.

LEAHY: If the -- if the...

COBURN: I thank the chairman. I -- I will yield back. And I'll follow up on the next round.

LEAHY: Well, yield back. Your time is up. I didn't know whether you wanted to respond to that.

Did you want to take a break before we go to some of the others or...

KAGAN: "Some of the others"?


If -- if it's "some of the others," I definitely want to take a break. If it's one of the others, we can do that.

LEAHY: Tell you what. Let's go to 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.

CARDIN: Solicitor General Kagan, I'm one of the others, so let me welcome you to the committee.

I have been amazed and disappointed as to how the brilliant, trailblazing 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, the state of Maryland that I have the honor of representing in the United States Senate. Justice Marshall was one

of the great Americans that have come from Maryland. We're 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 and who could -- 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 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.

Now, Yesterday, I talked about how we can be ensure 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 what your role will be on the Supreme Court of the United States.

I'd 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 that's the same thing with original intent. It's OK, if you -- if that's the result that you want.

But I want a justice who's 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 to.

It's very difficult for us to -- to -- to legislate -- to pass legislation to expand rights, and 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 the ages," the same point that you have raised before this committee about 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 and vision 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 a wrong direction. We've talked a lot about Plessy v. Ferguson. It might have been a pragmatic decision by the court at its time, but it was fundamentally flawed. There's 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, 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, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals, the fundamental opportunities 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. Dickenson Public Schools, Justice Marshall said that -- 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 their school to use a school bus without paying a fee does not violate the 14th Amendment due process 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 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 interest?

KAGAN: Well, Senator Cornyn, I think that the Constitution is a kind of genius document, in that, while certain of its provisions are -- are quite specific and -- 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 there's still elected the same way and -- and -- and all manner of things like that, that the -- the framers and then, in subsequent amendments and especially with respect to the Civil War amendments, the 13th and 14th and 15th amendments, wrote some provisions broadly, generally.

And this goes back to -- to what Chief Justice Roberts said in -- 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 cramped interpretation, that the point of these general provisions is to ensure that the -- that the principles that the -- that the framers held so dear or that the ratifiers of the 14th Amendment held so dear, that those principles would continue to apply throughout the ages for our posterity and -- and that 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.

CARDIN: Well, I -- 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 -- 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 happened to stare decisis?" I noticed 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 the 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?

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, a fundamental American constitutional value, and one of the court's most important missions is to ensure that that value remains strong over time.

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, an expanded right of vote. Two constitutional amendments and even the -- the Civil Rights Act of -- of 1964 failed to address the hurdles to -- that used to exclude black voters and poor white voters, so 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 MUD that didn't directly deal with the issue of whether Congress has the right to -- to continue the -- 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 had 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 is. This is not substituting a Y for 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?

KAGAN: Well, Senator Cardin, you raised the question of the scope of Congress's Section 5 power, Section 5 of the 14th Amendment, which gives Congress the ability to enforce the 14th Amendment, and -- and the scope of that power has -- has -- has been an issue in several recent cases.

In the case of Burney (ph), which I believe Senator Specter referred to earlier, the court said that it wanted to distinguish between Congress's ability to enforce -- to remedy 14th Amendment violations, and also to prevent 14th Amendment violations on the one hand, which was appropriate, and on the other hand, what the court found in Bernie was not appropriate was the court acting under that Section 5 power to change the constitutional rights that had been found by the court.

So that's the line that the court has developed in Burney (ph) and subsequent cases, which is Congress clearly has the authority to remedy and to prevent 14th Amendment violations, but doesn't have the authority essentially on its own to change the meaning of the 14th Amendment.

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 it directly.

KAGAN: Yes. And I should say, of course, the 15th Amendment has its own enforcement provision, and the Voting Rights Act was -- was passed under -- under that enforcement provision.

I think it's undeniable that the Voting Rights Act has been a major historical 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 -- of -- of the Voting Rights Act.

But it's -- it's not likely to be the last time that the court will consider those issues. And I -- I -- I -- Congress clearly has an important role in this area, and the exact scope of that role is going to be addressed in future cases.

CARDIN: Thank you for that response. I find that comforting. I'd just point out that, you know, we lived through the election procedures, and we see obstacles in the way of voters.

In 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 -- 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. And I'd 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, is 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 100 years ago, "I see in the near future a crisis approaching that unnerves me and 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. Well, my colleagues are now monitoring U.S. elections. They want to make sure, as -- as we have signed on to these accords, that -- 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 -- I just want to weigh in to say that I think it's critically important that -- that we -- that you follow when you can legal precedent and -- and -- 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 the senator from a coastal state of Maryland, I am deeply concerned about the damages that have been caused to our environment, to -- to businesses, to 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 that have certain areas covered in our wetlands, in which the Rapanos Supreme Court case was a huge step backwards, again, rejecting congressional intent.

And then, in Exxon v. Baker, we saw a restriction on the -- 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, have 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?

KAGAN: Well, Congress certainly has brought 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.

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 -- which the court rejected a long-standing test 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 -- 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. Now, how do I explain to a 50-some- year-old woman with a couple of children who is fired after 25 years in the workforce because the employer wants to hire someone half her age and pay one-third her salary, how is she getting a fair shake, when the Supreme Court changes the test in order to avoid the current protections we thought we had in the law against age discrimination?

KAGAN: Well, Senator Cardin, I've pretty consistently said that I don't want to, you know, portrayed (ph) or, you know, give a thumbs- up or a thumbs-down on -- on particular Supreme Court cases.

I -- 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 -- but -- but that's the goal, is to make sure that the court is -- is -- 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.

CARDIN: Well, thank you. I think that was a pretty complete answer.

And, by the way, I just -- I just really want to thank you for the complete answers you're giving us. In response to Senator Graham, you gave us high grades. 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 -- on the -- on "we, the people," including all. Right now, in 30 states, an individual can still be fired for their sexual orientation or he or she have no recourse. An alarming 39 percent of the self-identified LGBT workers in America 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 share -- shake for all Americans. And Congress has an obligation to stop this discrimination.

Now, there is a -- the state of Maryland has taken action, and I -- I congratulate our legislature and governor for -- 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 co-sponsors in the House of Representatives and 45 co-sponsors in the Senate. And I'm proud to be an original co-sponsor 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 the -- 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?

KAGAN: Well, the policy decision, Senator Cardin, is -- is -- is up to Congress. And the -- the -- the questions that might come before the court are questions if -- if they're statutory in nature, they would be appropriately addressed by the court asking what Congress intended.

CARDIN: Thank you. I wanted to save about five 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 -- at -- at Harvard in expanding clinical experiences for your students, but I want to tell you the challenges we have.

According to recent Legal Service Corporation studies, each legal aid attorney serves over 6,800 people, while there's one private attorney for every 525 people in the nation. This is not equal justice under the law.

Recent studies have shown that 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 in which legal aid bureaus depend upon are the IOLTA funds, which, as you know, have -- 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 face foreclosure, 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, 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?

KAGAN: Senator Cardin, this is one of the things I -- I worked hardest on at Harvard, along with a great many other people. And I -- 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 -- in ways that they need it, in all kinds of ways in which a lawyer can help them, and -- and -- and, you know, in -- in -- in which this -- 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 deanship. We also expanded the other kinds of pro bono opportunities open to Harvard Law School students. I think that the numbers are more than double the number of clinical placements during the time that I was dean, and -- 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 -- that was done by our students by the time they graduated was something like 500 hours, sort of 10 times the amount that we required of them.

And -- 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 -- 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 a law school classroom and -- 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 -- can -- can truly benefit people.

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've -- I'm proud that we've instituted it in Maryland, and I think what you've instituted in 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 -- to participate in pro bono. How well do you think we're doing as a legal profession on -- on pro bono work? And what can you do as a justice to help advance these issues?

KAGAN: Well, we can -- we can surely do better. And -- and I think the justices -- you know, the question of -- of -- of what the justices say and -- 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 -- if the Senate sees fit to confirm me.

But I -- I -- I think that there's -- 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 -- 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.

CARDIN: Thank you, Mr. Chairman.

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 anybody who'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, just break now, come back -- unless you want to override that?

KAGAN: No, that's good.


LEAHY: I -- I was going to -- I was looking there and I was going to say, "Don't call my bluff right now. I want to go home, too." But we'll -- we'll come back in here at 9 o'clock tomorrow morning.

I've had a lot of discussions with Senator Sessions, who -- who's actually wonderful to work with. I mean, he has -- he has to protect on his side, but we really do try to work on -- on schedules.

We -- because of the death of Senator Byrd and the changes that's made, it's also making changes on 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 this helpful in 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.


Jun 30, 2010 8:36 ET .EOF

---sbs--- DAY 3


JUNE 30, 2010






LEAHY: All righty. Back to my day job.


The -- yesterday, the nominee answered our questions over the course of 10 hours. This morning, we'll 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 shown 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've had several senators tell me they will not need their whole time, and I -- I do appreciate that, because we have a lot to do if we want to complete the nominee's testimony today.

And -- and I realize I've been pushing the schedule very hard. I appreciate the nominee's forbearance, but I also appreciate my good friend, Jeff Sessions, and his -- his willingness to work on this, because we have the memorial services for Senator Byrd. They're 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?

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 -- or in any way curtail the essence of this hearing, but we will definitely do what we can to be accommodating. And I hope then we can complete a full day about this in an -- in an effective way.

And I do hope that we can learn more about the nominee. We see her gifts and graces in many different ways. Those are revealed in her humor and -- and her knowledge.

But I think we -- some of the critics who are saying, "Who is this nominee? Exactly what do you believe?" might find it from the -- from the testimony difficult to know if -- if, Ms. Kagan, whether you'd be more like John Roberts and 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.

LEAHY: Thank you very much.

Senator Whitehouse, you're recognized for 30 minutes.

WHITEHOUSE: Thank you, Mr. Chairman.

Ms. Kagan, good morning.

KAGAN: Good morning.

WHITEHOUSE: Welcome back.

KAGAN: Thank you.

WHITEHOUSE: The questions that I 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, 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?

KAGAN: I do agree with that, Senator Whitehouse. It's what I tried to express in my opening statement on -- on Monday and in much of my testimony yesterday.

WHITEHOUSE: And on this matter of precedent, is it -- 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?

KAGAN: Senator Whitehouse, I think that's said very well. The doctrine of precedent is, in large part, a doctrine of constraint that ensures that improper considerations, improper factors won't come into judicial decision-making, that ensures that courts will decide every case on the law.

It's 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'm wrong, and maybe the greater wisdom is the one that's been built up through the years by many judges in many cases."

So precedent is a doctrine of humility, and it's very much what you said it is, a doctrine of constraint, a doctrine that binds courts and judges to the law.

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 watchmen?" 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.

KAGAN: Senator Whitehouse, that's -- that's 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.

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'll 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 didn't change at the time, nor did the precedent, correct?

KAGAN: As far as I know, the precedent has not changed under Leegin. But, Senator Whitehouse, you'll excuse me, I'm not an antitrust expert, so I -- I don't know whether there was any lead-up to Leegin.

WHITEHOUSE: But your testimony was that a new economic theory yesterday was what had driven the change.

KAGAN: I think that that is mostly what Leegin was based on.

WHITEHOUSE: Yes, and I agree with that. I don't contest that. What's interesting, though, is that throughout 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 hadn't 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 five to four 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 five to four decisions and what effort the court should make to return to a collegial environment that the court, where even these highly contentious decisions, like Brown versus Board of Education and Roe versus 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's not just Republican appointees acting together.

Is there -- 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 five to four decisions?

KAGAN: Senator Whitehouse, it's a hard question you pose, because on the -- on the one hand, every judge, every justice has to do what he or she thinks is right on the law. You wouldn't want the judicial process to become in any way a bargaining process or a logrolling process. You wouldn't want people to -- to trade with each other -- you know, you'll vote this way and I'll vote that way and then we can, you know, get some unanimous decisions.

WHITEHOUSE: But on the other hand...

KAGAN: Every judge has to do what -- what he or she thinks the law requires. But on the other hand, there's no question, I think, that the -- that the court is served best and our country is served best when people trust the court as an entirely non-political body, when -- when people look to the court has -- 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 everybody ought...

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 logrolling or any of the behaviors that you thought -- that you think are -- are inappropriate. And I -- I don't contest that.

But there are ways to get to a larger majority without engaging in those, are there not?

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 -- 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's possible to reach consensus on, consistent with the law.

WHITEHOUSE: But 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's just obvious, is it not?

KAGAN: Senator, what has -- I want to make it clear that I'm not agreeing to your characterizations of the current court. I think that that would be inappropriate for me to do, and...

WHITEHOUSE: I understand that.

KAGAN: And I'm sure that everybody up there is acting in good faith. I -- 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.

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're able to move the law in a particular direction, correct?

KAGAN: And I think what the judge should do is not to think about, you know, over the long haul I want the laws to move in this direction. I think what the judge should do is to take one case at a time and...

WHITEHOUSE: I know that's what you think.

KAGAN: Well, I can only tell you what I think.

WHITEHOUSE: That's 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's a court that is willing to make very important decisions by a five to four 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's simply factually true, isn't it?

KAGAN: Well, Senator Whitehouse, such I'm going to insist again on not characterizing the court or any of the justices on the court and -- and just to say what I think is the right approach to judicial decision-making. And I think it is -- 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...

WHITEHOUSE: 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 five-four decisions, wouldn't it -- just as a matter of logic?

KAGAN: Well, I -- I don't think that -- what I most trying to make clear is that I don't think that any such agendas are the way anybody should conduct their business.

WHITEHOUSE: And I agree.

KAGAN: And...

WHITEHOUSE: Let me change the topic a little bit. What is -- what is the proper role of the court of appeal, court of final appeal in particular, with respect to making findings of fact? Whose provenance is making findings of fact?

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, don't have the competence to make findings of fact, so for the most part rely on the findings of fact made in other institutions.

WHITEHOUSE: That was my thought as well. I spent some time doing appellate work, and my understanding was that particularly appellate courts don't do, and particularly supreme courts don't do findings of fact. They have the record before them, and that's the record that they have to follow, and it's 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 -- "that independent expenditures, including those made by corporations, do not give rise -- 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 a fact, which I think all of us, who've had any political experience at all, not only find to be odd in the sense of it's a finding of fact he made by a Supreme Court, but also it's a finding of fact that in everybody's experience, who's been near an election, is actually wrong?

KAGAN: Well, I've talked before about my argument in Citizens United and, of course, it approached that argument as an advocate for the United States 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...

WHITEHOUSE: And it ran exactly contrary to this particular finding of fact made by the Supreme Court, did it not?

KAGAN: I -- 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 -- and that the -- that the government had failed to show that there was a compelling state interest that was narrowly tailored to the restriction at...


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's been around 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's just interesting that they would make that finding of fact. Clearly, it's 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's -- that it's there. And I would hope that if -- 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 ordinarily 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.

KAGAN: Senator Whitehouse, I do think congressional fact-finding is -- is very important and that courts should defer to it. It doesn't mean that fact-finding is either necessary or sufficient. Sometimes Congress can make no findings of fact at all and the court should still to defer -- should still defer to -- to Congress.

And on the other hand, sometimes congressional fact-finding can't save a statute. But in -- in very significant measure, the courts should defer to congressional fact-finding. And they should do so because they should realize that it's Congress, rather than courts, that have the competence to engage in that kind of fact-finding, to develop evidence, to call witnesses in support...

WHITEHOUSE: The rule, in fact, is nearly absolute. I mean, really, the only time when it's 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 in this?

KAGAN: Courts in general have neither the competence nor the legitimacy to do fact-finding in the way that Congress can do fact- finding.

WHITEHOUSE: So to go back to my premise, which you don't accept, and I -- this is just, you know -- I understand that that's 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 don't 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've had sort of a baseline premise in our discussions with you that precedent is what precedent is. It's been decided. You don't have an opinion as to whether you like it or not. It's the precedent, and you're bound by it.

But here's the chief justice saying that some precedent actually impedes the stable and orderly adjudication of future cases. And here's 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 decision in future cases.

Now, if that's a theory of precedent, does that not allow a determined group of judges on the court to hotly contest precedent that they don't 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?

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 -- that should not function as -- as -- 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...

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 towards, isn't this a very useful doctrine, because you are now in a position to hotly contest the precedent that you don't like and use your own disagreement with it to undermine it and take it down?

Isn't, 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?

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 -- the two more standard bases for deciding that a precedent really does have to be reversed.

WHITEHOUSE: The -- 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 don't 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 institution 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?

KAGAN: I think it was, Senator Whitehouse. You know, we -- we learn about the separation of power 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 -- in checking the other branches of government.

WHITEHOUSE: Because they had seen corrupt colonial governors and were suspicious of executive power, were they not?

KAGAN: That's my understanding, Senator Whitehouse.

WHITEHOUSE: And they had seen the power of the early legislatures. I think Thomas Jefferson said, "We've traded in one tyrant for 237," once he saw the Virginia Assembly begin to act, and that's why they had to go back and design the balanced system of powers.

WHITEHOUSE: 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 be on the wrong side of the general assembly or the legislature. They could imagine the -- 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's why they established the jury, with regular citizens. And we protect it with laws that make tampering with the jury a crime. Do you agree?

KAGAN: I think, Senator Whitehouse, that the jury was an extremely important mechanism to the framers and that it was a mechanism designed to check other institutions of government.

WHITEHOUSE: As sort of a last -- when everybody else is gone, you can -- you can still get a fair hearing in court before the jury.

KAGAN: I think certainly the framers believed in an independent judiciary generally, and there's no question that within the judicial branch they thought that the jury played a very significant role.

WHITEHOUSE: So when the Supreme Court threw out the Exxon punitive damages award of $5 billion, just one 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 of corporations -- for corporations -- on the other side of that equation. Correct?

KAGAN: Well, I do think the court in Exxon was struggling with values on both sides. I would agree with that.

WHITEHOUSE: And in that particular case, the institution of the jury lost and the predictability for corporations won.

KAGAN: In that particular case, the court held under a kind of a maritime common law that punitive damages could go...

WHITEHOUSE: No higher than...

KAGAN: ... no higher than...

WHITEHOUSE: ... compensatory damages.

KAGAN: ... compensatory damages.

WHITEHOUSE: Because otherwise it became unpredictable for corporations.

KAGAN: Became unpredictable, that there was no stability in the system.


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.

KAGAN: Thank you.

WHITEHOUSE: Thank you, Mr. Chairman.

LEAHY: Thank you, Senator Whitehouse. And thank you for the time you spent on this.

And, Senator Klobuchar?

KLOBUCHAR: Thank you very much, Mr. Chairman.

Solicitor General Kagan, you did -- 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...

KAGAN: I didn't see that.

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.

KAGAN: I wish you wouldn't.

KLOBUCHAR: But I will refrain.

I know you can't comment on future cases. So I'll 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're currently in, he famously told this committee that judges are like umpires: Umpires don't 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?

KAGAN: Senator Klobuchar, I think it's correct in several important respects. But like all metaphors, it does have its limits. So -- so let me start with the ways in which I think it's 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's a bad umpire.

And is that your team?


KLOBUCHAR: Not exactly. The Twins. The Twins.

KAGAN: I was pointing to Senator Kaufman, I'm sorry.

And same for the judge.

So, you know, to the extent that what the umpire suggests, that there's got to be neutrality, that there's got to be fairness to both parties, of course that's 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're 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 don't overstep their proper role.

But judges should recognize that that's a limited role, and that the policymakers of this country and that 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's right, too, as I've 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's a kind of automatic quality to it, that it's 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 -- that there is no judgment in the process.

And I do think that that's not right. And it's especially not right at the Supreme Court level where the hardest cases go and the cases that have been the subject of most dispute go.

And as to that, I think that there is -- judges do, in many of these cases, have to exercise judgment. They're not easy calls.

That doesn't mean that they're doing anything other than applying law. I said yesterday on a couple of different occasions, it's law all the way down. You know, you're looking at text. You're looking at structure. You're looking at history. You're looking at precedent. You're 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's not because anybody's acting in bad faith. It's because those legal judgments are ones in which reasonable people can reasonably disagree sometimes.

And so in that sense, law -- law does require a kind of judgment, a kind of wisdom. And there are frequently clashes of constitutional values. Senator Whitehouse 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're not going to agree.

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 says, 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'm 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.

KLOBUCHAR: 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?

KAGAN: Well, Senator Klobuchar, I'll start by just saying that listening was -- was the most important lesson.

It was -- 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's 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's taken place.

So that's a -- a hope, something that I had to learn a little bit during my time (inaudible). 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 -- 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're muscles that I have 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 I wouldn't 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 -- and -- and, you know, I hope that that made me a better person.

KLOBUCHAR: You know, as solicitor general, you got to actually argue cases before the Supreme Court, and 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?

KAGAN: Well first, I'll say that it's -- it's 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 -- and so, I think, trying to get it right. And -- and so I developed a real appreciation for the court through those oral arguments.

What do I think is a good oral argument? I think -- I think you have to answer the judge's questions. I think they're 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'm going to make those points again and again and again." And -- and the justices, I think, they have the briefs. They've read your briefs, and you know, the striking thing is that they really have read your briefs. They know your briefs.

So they don't 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's what the court is interested in. And it's only if you address the justices' real concerns that you're going to win your case.

KLOBUCHAR: So if you are confirmed, then we will consider those tips for those that go before you.

The other thing I want to get to back to this judicial philosophy piece of what we were talking about here, and that is just back to the masters thesis you wrote. I know it was before you were in law school, as 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're on the bench?

KAGAN: Well, I -- I again want to say what I said yesterday is that let's 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 didn't know much, didn't understand much about -- about law and certainly about the way judges should work.

I -- I -- I just think every judge just has -- has to be committed to the kind of principles of restraint that I was -- that I -- that I've 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 they -- 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're not, it's just not up to courts to correct that.

So -- so, you know, I think that the experiences that I've 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.

KLOBUCHAR: 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, quote, "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?

KAGAN: Senator Klobuchar, I think -- I should say it's an important question. I'll just say I think in the end I disagreed with Justice Stevens more than I agreed with him...


KAGAN: ... in that opinion. But I -- but -- but, I do think it's sometimes a fair criticism, the criticism that Justice Stevens made. And it suggests something about maybe some decisions' lack of connectedness, the sort of facts on the ground. And I would say two things about that. I mean the first is that courts have to be really attentive to the facts of the case -- that courts can't 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 courts aren't deciding abstract legal questions. They're not just sort of philosophizing about proper legal approaches. They're 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's often an important part of principle of judicial decisionmaking to take into account the actual consequences of a legal rule. And this appears in a number of different areas. I'll give you one, which is procedural due process,

the 14th Amendment, where we're 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's 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 -- the test the court use -- uses is a very practical one.

KAGAN: 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's the burden that these procedures are likely to impose on the government? Like, what's the actual cost that the government is going to have to incur?"

And it balances those things. And that's an example of how in some areas the court has -- and I think has appropriately -- looked to the real world, the practical effects of a particular legal rule.

KLOBUCHAR: So you're not talking about driving a result. You're talking about how the results -- knowing what the results could be, should be considered?

KAGAN: Yes, you're 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's inappropriate in every and all circumstance.

But -- but there are places in which the legal doctrine and even the constitutional doctrine does take into account practical effects.

I mean, 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's a reasonable search and seizure and what's an unreasonable search and seizure is some practical impacts on -- on the people who are searched, but also very much on -- 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'll know when to search and when not to search, when they have to get a warrant and when they don't have to get a warrant?

KLOBUCHAR: Well, and 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 5-4 decision. It didn't split among -- among ideological lines. And I was concerned about the decision, just because, again, as a practicality of how all this would work for prosecutors.

And actually, this year the Supreme Court, in another case, Briscoe v. Virginia, which raised the same question, and I was hopeful that the court might limit Melendez-Diaz. Twenty-six attorney generals, including the attorney general of Minnesota, chimed in, explaining that it was already negatively affecting drug prosecutions in some states.

And, actually, a 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's important if you look, because I figure you're not going to be able to get involved in this case if you're a justice, but just if you could talk about the results and what could happen with a case like this.

KAGAN: Well, I won't be able to get involved in -- in this case. I'm sure that there are other issues that will be coming down the road about the confrontation clause. I'll try to steer clear of that.

As you say, Senator Klobuchar, the United States government did file a brief in that case, and it -- it supported the, whatever it was, 26 or 27 states which were concerned about the effects of the court's prior ruling on law enforcement. And particularly, we're concerned about the ability of -- of -- 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.

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 wasn't disputed, they didn't have to bring the lab analysts in.

KAGAN: That's...


KLOBUCHAR: And that -- and the -- and the Supreme Court decided not even to go into that and say, well, that would be fine, I think what happened.

KAGAN: Yes, I think that the -- 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. We have -- the government had urged them to do so because of the kinds of -- of -- of practical issues you raise.

I think, you know, the -- the -- the court's analysis now in this area does not focus on -- 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's 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's -- it's a pretty bright-line rule, and it -- it has had the effects on states that you mentioned. But it is -- the -- 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 -- that is a point I've been trying to emphasize. I think that the -- the justice who has been primarily responsible for this understanding of the confrontation clause -- and it is an understanding of the confrontation clause that -- you know, that works well for criminal defendants...

KLOBUCHAR: That's a nice way of saying it.

KAGAN: Yes, I mean, criminal defendants love this rule. Prosecutors do not like this rule. The -- the person who has been most responsible for this approach is -- is -- is, I think, Justice Scalia.

And I don't 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 don't -- you know, I -- I think we know which way he'd choose.

I think it's actually a good example of where a -- a person's view of the law comes out a different way from, you know, where -- which -- which party they might want to have win, and that's a great thing for a judge to -- to do.

I mean, all judges, that should -- that should happen in their lives, that -- 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 wouldn't come out that way.

KLOBUCHAR: Well, I just hope you'll take to heart -- one of the comments written about Justice O'Connor when she retired, someone said, on an attentive reading, many of the justices' 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 -- 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's 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'll take that to heart.

Last thing I wanted to ask, as the daughter of a former reporter, it's just about -- there's been a lot of talk about the First Amendment as it relates to political speech, but I just want to talk for a minutes 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 that, quote, "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 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 -- and whether or not your last few months going through the -- the media focus with your confirmation hearing has changed your opinion or strengthened it in any way, Solicitor General?

KAGAN: OK. I think people should be able to write anything that they want about me, and I don't think that I should be able to sue them for libel.

KLOBUCHAR: Very good. But how about the case itself and with the changing Internet and -- and -- and other, you know, more social media and bloggers? I mean, does that affect anything? And what -- how about your past comments? Do you have any -- do you want to add to those from the book review?

KAGAN: It's been -- it's been a long time since I read that book review, but I think that the -- 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's 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's not just newspapers, as you suggest.

KAGAN: I mean, given the way the media has developed, there are so many different -- different ways to express thoughts in our world now and to -- to have these speakers insulated from -- from libel suits by people who are in the public sphere, who are -- who are public officials, who are -- who are public figures, and to have an extremely, extremely high bar before those -- those people can recover for any -- any libel that may have been done to.

I guess the question that I was asking in that review, and -- and I -- I continue to think it's a -- a real question, is has -- how far should that go in this 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 -- 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 -- and something terrible 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 was -- was -- had been struck appropriately in that sort of case where the -- the values of the First Amendment in uninhibited political speech are -- are not so much evident and -- and where the personal harm can be great.

And it's been so many years since I read that article, I'm not exactly sure how it came out on that question, but -- but I think it's -- it's a real question.

And even as we -- even as we understand the absolute necessity for a kind of New York Times versus 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, we didn't put themselves into the public sphere, can be greatly harmed by -- by -- as -- as -- when something goes around the Internet, and everybody believes something false about a person.

That's -- that's a real harm, and -- and the legal system should not pretend that it's not.

KLOBUCHAR: OK. Well, thank you very much. And thank you for putting yourself in the public sphere today. And as I said at the beginning, you denigrate the job. Appreciate it.

KAGAN: Thank you.

LEAHY: Thank you very much, Senator Klobuchar.

And Senator Kaufman? Thank you for being here.

KAUFMAN: Thank you, Mr. Chairman.

Good news. When you get to Senator Franken and me, you're at the end of the road.

KAGAN: That's what they tell me, you know, and...

KAUFMAN: I'm talking about the first round.

KAGAN: First round.

KAUFMAN: New round. Some of my colleagues have suggested that you're 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?

KAGAN: There's 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 -- 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 -- the measures involved in ending the old welfare system. I worked on a number of things. I'm very proud of my service there. I -- I think it contributed to -- to doing some good things for people across this country.

But -- but it's -- but it's entirely a different role. I was, you know, not primarily looking -- there was a period of time in the White House or 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 -- you are a lawyer for a particular administration's perspective and a lawyer for president 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 -- is simply to evaluate the law and evaluate the facts as -- and apply the one to the other as -- as best, as most prudently, as most wisely as you can.

And, 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, the -- your -- your only master is the rule of law. And -- and, you know, regardless of what political, what administration you might've worked for the past, and -- and there are many justices on the court who -- who have worked for either for Congress or -- or the executive, but -- but just like all of them have, I would, if I'm fortunate enough to be confirmed, you know, put on that rolled add -- and be -- be independent and not favor any political party.

KAUFMAN: I mean, some of them, Sandra Day O'Connor even was an elected official herself.

KAGAN: Sandra Day O'Connor was an elected official herself. That's true. I'll give you another example as a great example. He's actually one of my favorite figures in Supreme Court history, who is Robert Jackson.

And 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 that very few -- well, a few, but he -- he was very close personally to Franklin Roosevelt even -- even before he had occupied this set of positions. They were real friends.

And -- and Justice Jackson, you know, he got to the court, and -- and the executive branch never counted on his vote, and it's quite the opposite, that he was as independent as they come.

And, you know, the -- the case that everybody knows about, of course, and it's kind of the iconic case, is what he did in Youngstown, where President Truman closes the steel mills and -- 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, that Robert Jackson voted against the -- the ability of the executive to take an action like that and wrote one of, I think, probably the strongest opinion ever written on this subject of executive power.

And so, you know, that's the kind of independence that I think a judge has to show. And -- and I think -- and I think -- I think it's sort of a natural consequence of -- of assuming that position.

KAUFMAN: I want to talk a little bit about Leegin. It's been talked about in a number of different places, and I -- 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's an important case, because it overturned 96 years of precedent.

Now, the one point that -- Congress, you know, whether Congress has the right to make the facts are Congress has the right to make the rules (inaudible) -- during these 96 years, Congress could have changed this rule, if they came up with a new economic theory, any time they wanted to, correct?

KAGAN: That's true, Senator Kaufman. I -- I will push back a little bit, though, and say that the anti-trust area is a -- is a kind of special area with respect to statutory interpretation that courts have been considered to have more common law power....


KAGAN: ... in this area because of the breadth with which and the generality with which the anti-trust statutes are framed.

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'm 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.

KAGAN: Congress surely could have stepped in at -- at any point, and indeed could do so now.

KAUFMAN: Right. And In Illinois Brick, another Supreme Court anti-trust 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?

KAGAN: I -- I think it's a -- a long-standing principle, a very well accepted one, and I -- I do agree with it, that -- 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 hasn't changed it, it suggests something, at least, about whether the court got it wrong.

That's 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 -- has to live with it and abide by it regardless whether it's wrong.

KAGAN: Nobody can change it. So if it's really wrong or really unworkable or -- it's up to the courts.

Not so with respect to statutes.

KAUFMAN: And Justice Roberts was right when he said stare decisis isn't always the only consideration. Just like (inaudible) said in constitutional case and other cases, stare decisis doesn't overrule everything, but it is a major consideration.

KAGAN: Stare decisis is a major consideration, and it's at its height when statutes are concerned.


I'm 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 this results-oriented decision- making. And it just seemed to me five justices decided to overturn precedent simply because they didn't like the outcome (inaudible) the present dictate or the economic theory invited -- 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're asking to overturn a settled issue of statutory construction.

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 and 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's eroded by other doctrinal change. Let's say one precedent is relied on, on 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. What is -- 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 a 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 you, as I -- 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're dealing on the statutory realm.

KAUFMAN: And how about length of precedent? Would that be a factor?

KAGAN: I think it generally is. I think it generally is just in the sense that it's 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 -- have -- have specifically reconsidered the precedent and said, "Yes, we think that this is a good precedent," that that would be a factor.

KAUFMAN: I want to talk another case that's been talked about a lot, and that's Citizens United. And I'm -- I hope I'm going to be dealing with new ground based on what I've heard of the other questioners.

But I think both Leegin, Citizens United, Exxon, these are all cases that (inaudible) everyone's been talking about in terms of where the court's going. And so I'd just ask you, Citizens United case there were two rounds of briefing and second oral argument in that case, right?

KAGAN: That's correct.

KAUFMAN: And who asked for the second round of briefing and oral argument?

KAGAN: Well, the court did.

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?

KAGAN: I don't remember the exact phrasing, Senator Kaufman...

KAUFMAN: No, but just in general.

KAGAN: The question of whether Austin and part of McConnell should be reversed.

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?

KAGAN: Well, it's unusual. It's not unheard of. It's happened in other cases as well.

KAUFMAN: But it is unusual.

KAGAN: It is unusual.

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?

KAGAN: I think that the question that the court posed had been in the initial complaint, had then been abandoned by the party in the case.

In the briefs that had been filed in the court, that the question and the argument came back in a few paragraphs, so that it was not the focus of the -- of the parties' argument.

KAUFMAN: Without regard to this case and just to go a little more into something you talked about with Senator Whitehouse, your view about a judge choosing between narrow statutory ground for a decision and broad constitutional ground for decision, can you just kind of sum up your feeling about that?

KAGAN: Well, I think that there's a longstanding rule, it's a sensible rule, it's 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's not always possible.


KAGAN: Sometimes the statute doesn't allow it. You can't make up a statute or recast a statute to make it mean something that it obviously doesn't mean just in order to avoid a constitutional question. But to the extent that you -- it's -- it's -- it's reasonable to construe a statute in a way that avoids a constitutional question, it's, I think, a longstanding practice of judicial restraint to do so.

KAUFMAN: And is it fair to say that the ultimate ruling on Citizens United was not consistent with prior decisions based on corporate election expenditures?

KAGAN: Well, it -- it -- 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 -- what the other precedents held...


KAGAN: ... whether those precedents were themselves anomalous or whether they were a part of a longstanding tradition. The government had argued the latter.

KAUFMAN: To me it goes back to the same thing as Leegin. I think it's something that I've 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'm not going to ask for your assessment on Citizens United, whether it was results-oriented judging, but talk a little bit about results-oriented judging.

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 results-oriented. It suggests that a judge is kind of picking sides irrespective of what the law requires, and that that's 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 don't 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.

KAUFMAN: So, I mean, we have these issues, like results-oriented judging, precedent, stare decisis, where everybody seems -- everybody on the committee seems to agree. It's kind of remarkable how when we look at individual cases they aren't taken into account. And I'm 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 wouldn't be any barrier for a small-business person. Most of these, like S corporations, are just individuals. They could still declare themselves a dividend, take the money and go out and spend it for political -- in political campaigns, correct?

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 couldn't do it through the -- they couldn't spend through the corporation itself, but that they could spend individually.

KAUFMAN: I mean, the main thrust of this decision and all the discussion about the 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 in that and not -- and that was a clear precedent that was not what we want in this country.

KAGAN: Well, it's certainly the way, when I argued the case, that I understood the congressional record; that when I understood the -- that when I looked at the congressional record and -- and tried to -- to portray to the court what the congressional record was all about, that it -- 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.

KAUFMAN: Because, really, these -- these -- these institutions have massive amounts of money. I mean, this is not just -- we're not talking about some little corporation (inaudible) these -- these people -- these large institutions could spend hundreds of millions of dollars, if they decide it was in their interest to do so, and that that would completely overtake whatever individual expenditures we have in this country.

KAGAN: Senator Kaufman, the argument that the government made, which was based on Congress's own record, suggested that there was significant potential for corrupting influence in that way.

KAUFMAN: And the other thing that's key, I think, in this is it wasn't just corruption, it was the appearance of corruption. I'm not one that thinks there's that much corruption. But, clearly...

KAGAN: Yes, and the -- and the -- and the appearance of corruption. And that's been something that the courts -- 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's necessary in the political speech context that these dangers would exist. And that is settled precedent going forward.

KAUFMAN: Right. And -- and -- and it -- it really is quite extraordinary, because I have not met anyone in the last 20 years who doesn't think there's at least the appearance of corruption in the way we finance our campaigns. I mean, I cannot -- 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 about Exxon-Baker. In Exxon-Baker, the court limited punitive damages (inaudible) 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 -- of the ruling, they didn't have to pay $2 billion in punitive damages.

KAGAN: Got it, yes.

KAUFMAN: And because Judge Alito didn't participate, it's 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?

KAGAN: In this class of maritime suit, yes, I believe that that's right.

KAUFMAN: All right, which it's kind of extraordinary, again, to me. I mean, I think that -- that my experience has been -- and I'm -- I've worked in corporation and the rest of it -- that when you're 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 -- the lack of punitive damages, if it had ruled in Exxon-Baker, what kind of impact that would have in the gulf or what kind of decision has with -- with British Petroleum or any other company trying to decide whether they're 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'm concerned that in business cases the current Supreme Court too often seems to disregard settled law and congressional policy choices, and we 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 legislation.

Without asking you about that legislation, do you believe as a general matter Congress has a constitutional authority to regulate financial markets?

KAGAN: Congress has broad authority under the commerce clause, and -- and -- and certainly most regulation of financial markets that I could think of would substantially affect interstate commerce.

Doesn't mean to say that there couldn't be something unconstitutional in this area as in any other, but the -- the standard test is whether activity substantially affects interstate commerce. There's limits on non-economic activity, but presumably the regulation of financial markets would -- would -- would not be that.

KAUFMAN: And can you talk a little bit about what -- what the judge's idea of the wisdom of a statute should play in -- in the judge's decision?

KAGAN: I don't think it should at all. And I -- I -- I think I -- I guess I talked yesterday about Oliver Wendell Holmes, who was the justice who in the earlier 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, don't know about Justice Holmes is that he thought all this economic legislation was -- 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 -- this is a choice for the American people. And, you know, if -- if -- if I'm right and it turns out that they've done unwise things, they'll correct it.

And I think that that's what the attitude of judicial restraint to the -- judicial deference to the democratic process really is. It doesn't matter whether you like the legislation or not.

Not to say that courts don't have an important role. Courts do have an important role in policing those constitutional boundaries. But -- but -- but in fulfilling that role, you know, courts should realize that they're not the principal players in the game.

KAUFMAN: Let's talk a little bit about dean at Harvard. What did -- when you were dean at Harvard, what did you do to promote public service?

KAGAN: Well, I -- I -- I tried to do a lot, because I -- I -- I think it's one of those things that -- you know, public -- it's one of those things that on the one hand, what -- what -- what our students find is they do good for other people and that they also create meaningful professional lives for themselves.

So I -- working with, you know, quite a large number of people at Harvard, I think some of whom are here in -- in -- 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 the -- you know, the bully pulpit whenever I could to talk about the importance of these issues.

And -- and I -- I think we had good results, that the -- 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 can't 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, 40 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 -- 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 -- and -- and I think it was -- 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's something that the -- that the school can legitimately be proud of.

KAUFMAN: Let me ask you, you know, large modern corporations are great and they're what make America great and they provide jobs, but they also have vast resources at their disposal. What's the role in the Supreme Court in making sure that there's a level playing field between major corporations and the individual American?

KAGAN: Well, Senator Kaufman, I think that the role of the court is to provide a level playing field for all Americans. And -- 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 -- if -- if you're right on the law -- and you have to be right on the law -- but if you're right on the law, it doesn't matter that -- that your opponent has a great deal more wealth or more power than you do.

And -- and one of the things that I found remarkable in my time as solicitor general, as I walk into that court and I represent the government -- and -- 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's -- it's -- it's OK to give the government a harder time. And I think that that's fine, because the government does have, you know, a lot of resources and a lot of ability up there.

And -- 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're a rich person or a poor person, whatever your race, whatever your religion, whatever your belief, you're entitled to the same kind of respect, and that I think that the greatness of our court system historically has been that you've generally gotten it.

KAUFMAN: You spoke yesterday with reverence about Justice Marshall's reverence to the American judicial system. You've also written about it. I'd 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 court 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 fill 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?

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. As he was trying to eradicate Jim Crow segregation, he was not met with much -- you know, you could walk into the statehouses and you could walk into Congress and you can 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 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.

KAUFMAN: Thank you very much.

Thank you, Mr. Chairman.

LEAHY: Thank you very much, Senator Kaufman.

We're going to do just -- we were just discussing the schedule up here. We'll have Senator Franken's questions, and then we're going to take a very short break. There is a vote I'm told at noon on General Petraeus. We have a couple people who will vote at the desk when it starts because we will not -- we will not stop the hearing for the votes. We'll just -- people will go back and forth and vote and keep the hearing going, and then we'll take a lunch break at an appropriate time.

Senator Franken, you're on, and then we'll take a break.

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's mandatory arbitration. Now, arbitration has its place. I'm talking about mandatory arbitration.

Chances are if you have a cell phone or a credit card or if you work, you're likely to have signed a contract with a mandatory arbitration clause. These clauses basically say if we violate your fights, you can't 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 denying their opportunity to come before the court. Unfortunately, we've 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 -- 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, quote, "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, quote, "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 in Congress, 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's 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, quote, "I think a judge should look to the history of the statute in order to determine Congress' will."

General Kagan, we spend a he 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 a law in the first place?

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 One 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. 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's 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...

FRANKEN: Do you agree with Justice Kennedy, we need not assess the legislative history of something?

KAGAN: Well, I would -- I would say this. I would say where the text is clear, the 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.

FRANKEN: But shouldn't the court assess that -- make an assessment there?

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...

FRANKEN: And wouldn't you have to assess whether it's ambiguous?

KAGAN: Yes. I mean, the first step is...

FRANKEN: So what Justice Kennedy said doesn't stand up to that, does it?

Let me -- 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 doesn't just ignore the purpose behind the laws we are passing. How can we do that? How do we do that? How do we do that? How do we make it clear to future justices?

KAGAN: Well, the courts surely would be helped if Congress spoke as precisely and exactly and as comprehensively as it could in all situations.

KAGAN: You know, there -- there are some instances where the -- 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 -- 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 -- in recent years and in prior years, as well -- to the -- to the extent that the court gets something wrong, of course Congress can come back and change it, and make clear that the court got it wrong, and -- and also use it as an opportunity even to make clear its intentions with respect to a general area of law.

FRANKEN: OK. It's hard to do 78 years from now, but we'll 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 weren't 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 can't get your day in court to get your day in court.

Now, General Kagan, I know I probably can't ask you about whether you think this case -- well, I can ask you, but you won't 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?

KAGAN: Well, I -- I -- 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, then I think that the job of the courts is to use whatever evidence is at hand to understand Congress's intent, and that includes exploration of Congress's 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're looking to is -- is reliable, but courts should not at all exclude signs of congressional intent and should -- should -- should really search hard for congressional intent when the text of the statute itself is unclear.

FRANKEN: Good. Then I think you and I agree that Justice Kennedy may have been in error when he said that -- that the court doesn't have to assess the legislative history.

KAGAN: Well, I suspect that -- I -- I don't 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'm just guessing on that.

FRANKEN: OK. I think you're guessing wrong.



FRANKEN: General Kagan, you've -- you've gotten a lot of questions about...

KAGAN: It's not the first time in my life.

FRANKEN: And nor the last. We all guess wrong.

You've gotten a lot of questions about Citizens United. I'm going to try to bore down a little deeper on this.

First of all, I want to make it totally clear that a full 80 percent of Americans who hear about this case just think it's a bad idea. The first problem is the impact it's 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, and 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're 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 when 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're going to spend it when we try to protect against oil drilling in deep water when we don't have safety precautions or Wall Street fraud. They're 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?

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 put 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's the argument that the government made to the court.

Now, as I've indicated before, I approached this case as an advocate, not as a judge, and that there are certainly strong arguments on the other side, as well. And in particular, there's 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.

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. Let me explain.

FRANKEN: When you go to trial, you make arguments and you introduce evidence to back up those arguments. Now, you can't introduce evidence after trial. So if you appeal, you can't just come up with a new argument, because the appeals court doesn't have any evidence to decide it on.

This is why there is an old rule that the Supreme Court shouldn't answer questions they aren't asked, whereas 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, you know -- it won't have the evidence it needs to decide that question.

But that's the opposite of what the court did in Citizens United. In Citizens United the plaintiff argued and presented evidence of this question. Should a certain part of McCain-Feingold applied to certain kinds of nonprofits? And that's not the question that the Roberts Court answered.

This is how the Roberts court answered. No, McCain-Feingold shouldn't 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 that wasn't 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.

What the government -- 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 that Congress had found was that these corporations and unions had that kind of access to congressmen and 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 -- it had to be. As Justice Stevens said, the record is not simply incomplete or unsatisfactory, it is nonexistent.

General Kagan, you were criticized at the beginning of this for being outcomes or results-oriented, especially in your bench memos to Justice Marshall. How's 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 institutions that broke the law can no longer submit evidence. You wait until the appeal has been argued at the circuit court. You wait until the oral argument before the -- the -- 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 isn't outcome-oriented, I don't know what is. I'd love to ask if you agree, but, you know, I don't 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?

KAGAN: That's certainly true. It's a basic postulate of the way we run our judicial system that the court doesn't issue advisory opinions, that the court doesn't issue opinions on -- on anything except what's necessary to decide a concrete case of controversy before it.

FRANKEN: OK. How about this? Here's 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." Do you agree with that?

KAGAN: I do agree with that, Senator Franken. That, too, is a basic principle of our legal system.


KAGAN: And it's a -- it's a requirement of -- or it's a -- it's a foundation stone of judicial restraint.

FRANKEN: Well, I'm glad you agree with that. Do you agree with Justice -- Chief Justice Roberts that courts should decide matters as narrowly as possible?

KAGAN: Yes, I do, Senator Franken, in -- in part for the reasons I was discussing with Senator Whitehouse, that this leads to a kind of restrained decision-making in which consensus can be most easily achieved and -- and appropriate and restrained outcomes most easily reached.

FRANKEN: OK. I would be the last person to draw conclusions from your answers, but...


... to be honest, in Citizens United, I don't think Justice Stevens or -- I'm 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 I -- I -- there were 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 weren't 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 Back. 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 would use those navigable waters, you know, because it's water. And so they did.

The court 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 in place for up to 30 years or 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 Swank, the Clean Water Act now it doesn't 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, quote, "Congress would have wanted that the entity with political accountability and expertise make the decision rather than the courts."

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?

KAGAN: Gosh, I don't know, Senator Franken.

FRANKEN: I don't either. I think it's none, though.



FRANKEN: Can you tell me (inaudible)? We're going to both guess together.


KAGAN: I'll guess none.

FRANKEN: That's what I would guess, too.

Now, of course, the court has to make decisions in areas who don't have expertise, personal knowledge. But when they rewrote the Army Corps of Engineers regulations on wetlands, the Roberts court didn't have any special subject matter expertise on that issue.

General Kagan, what -- what does Chevron protect, if it doesn't protect regulations issued 30 years ago that were never questioned by Congress and were and were enforced repeatedly during that period?

KAGAN: Well, Senator Franken, Chevron says that where there is ambiguity in the congressional statute -- where -- where there's not ambiguity, you just go with what the statute says. But where there's 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's -- 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 -- in interpreting unclear statutes, you should give the nudge to agencies, that courts should defer to their decisions.

It's -- it's actually a Justice Stevens opinion. It's -- I think it's one of the most cited cases, maybe the most cited case in Supreme Court history.

FRANKEN: And yet, in this case, the court didn't give deference to that, did it?

KAGAN: Senator Franken, as I indicated to Senator Feinstein, I haven't read this opinion ever. I think that, you know, this might be one where the...

FRANKEN: Well, if you trust me in my -- my description of it, which is -- oh, never mind. Why would you do that?


OK. Let's say my description was accurate. Does it strike you that maybe they didn't give proper deference -- I mean, I know that's hypothetical...

KAGAN: Well, Senator Franken, this is...

FRANKEN: ... that my description would be accurate.

KAGAN: You know, I've -- I've been an administrative law professor, and -- and Chevron is actually something that I've written a good deal about, and I think I've -- I've 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 -- my writings on administrative law, you know that I'm a sympathizer with Chevron for the kinds of reasons that I just suggested.

FRANKEN: That's -- thank you. Thank you. Thank you for your indulgence. And I have a minute-fifteen left. And you know what? I'm going to yield that time.


LEAHY: And I hope...

KAGAN: That's really good of you.

LEAHY: We've -- we've talked a great deal about precedent here, Senator Franken. I hope that's a precedent others will follow.


You know, I'm -- these people, it's always hopeful. Sometimes my hopes are dashed. But we will take -- in any event, we will take a very brief break, and then we will come back.


LEAHY: We have the nominee back, and we will -- now senators will have up to 20 minutes to ask questions, second round.

I emphasize the "up to," and I hope any senator feels that they don't -- especially most questions have been asked; I realize not everybody's asked them -- 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.

We have outside witnesses, both Republicans and Democrats have outside witnesses and we have to figure out when we can use them -- all of this because of the change in the schedule with the Byrd memorial, where we've been asked not to hold hearings from 10:00 to 4:00 tomorrow when he's lying in repose in the Senate chamber. And of course on Saturday -- or Friday and Saturday, there are memorial services.

So I will reserve my time and I yield to Senator Sessions.

SESSIONS: Thank you, Mr. Chairman.

Solicitor General Kagan, I enjoyed our conversation yesterday, but was disappointed a bit with regard to how you described the situation at Harvard and the blocking of 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 don't -- and 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 to 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.

And let me focus on your responsibility and how you handled it. During your confirmation process, you stated that your, quote, "role as solicitor general, however, would be to advance not my own views, but the interests of the United States," and that you were, quote, "fully convinced that you could represent all of these interests with vigor even when they conflict with my own opinions," close quote.

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, quote, that your approach, quote, "to cases involving challenges to the statute involving 'don't ask/don't tell' policy would be the same," and that you would, quote, "apply the usual strong presumption of constitutionality," as reinforced by the, quote, "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 Appeal. One case was from the First Circuit in Boston, your old 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, a 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 plaintiffs 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.

Later -- 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 this is 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, they upheld the Solomon amendment eight to nothing, and I think based on the history, we could expect the Supreme Court to affirm that statute, in my personal judgment.

But the -- and so you -- 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 had 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. And 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.

SESSIONS: 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.

And so the result was neither case was appealed on the -- on the law, and the position of -- which was contrary to the consistent position of the military, and it undermined their ability to have, I think, an effective enforcement and even a fair enforcement on the policy.

So I guess I would ask you why you made that decision. And 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.

And 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.

And so I guess I'd just like to hear you state in as much -- with as much specificity as you -- as you can why you felt it necessary not to appeal either one of these cases.

KAGAN: True, 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 take the Pietrangelo case first, which was the First Circuit case, where the First Circuit upheld the "don't ask/don't tell" policy, and Mr. Pietrangelo brought a challenge to that decision, and the question was -- you know, he was challenging a decision that the -- 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 -- 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 -- 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 -- 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 -- 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 530d (ph) letter, which is a letter which the Justice Department writes whenever there's a moment at which it does not -- does -- does -- does not contest a decision that is inconsistent with a federal statute.

We wrote a 530d (ph) 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 in -- particularly in DOD's view, a -- 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 that -- rather than to view it in general across the statute.

And 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 the 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 -- 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 (inaudible) to review the Ninth Circuit decision.

SESSIONS: Well, I appreciate that position. I -- I -- I will look at it and review it.

SESSIONS: 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 an -- attempting an interlocutory appeal, and I do note that they took it in the 3rd Circuit Solomon amendment case and promptly reversed and -- you know, rendered a decision consistent with the government's position.

I think the last refuge of a big government scandal -- scoundrel -- is the commerce clause, it seems. Everything -- when you have no other hat to hang your -- peg to hang your hat on, you claim 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 or -- 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?

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 anyplace 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.

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 kind of 5-4 cases?

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...


SESSIONS: ... use the phrase interchangeably, "precedent," which has a certain amount of power, and then you've thrown out "settled law," to the layman seems to be a more firm acknowledgment of the power of that ruling.

But I want to know, do you mean any difference when you use those two phrases?

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 think about reversing any of them, that these are cases that I accept as decisions of the court going forward.

SESSIONS: All right. Well, and Justice Sotomayor said a similar thing about the Heller case, and it didn't bother her one bit to be in 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?

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, you know, X, Y, Z with it." That wouldn't be appropriate.

SESSIONS: Well, I think that's what I expected, and 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.

LEAHY: Thank you very much.

(inaudible) my time, but I will take a minute of my time to put into the record a letter sent to Senator Sessions and myself, a letter of support for the solicitor general.

We get this from 1st Lieutenant David Tressler (ph), who's currently deployed with the U.S. Army Reserve in the Khost region -- province -- in Afghanistan.

1st Lieutenant Tressler (ph) 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 graduation. He's now employed at a combat outpost in Afghanistan. Senator Graham, who's been in that area, as I have and several others, knows it.

He writes, "There was a legitimate legal debate taking place in the courts over the Solomon amendment, and when court decisions allowed it 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 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 than any year this decade.

"Her," meaning you, "position on the issue were 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 time of war."

He continues, "I've heard," referring to the solicitor general, "Elena Kagan speak several times about this issue. She always expressed her support for those that 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 with her genuine support for those who serve or were considering service in the military. Indeed, her sense of DATT injustice seemed 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."

And 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 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, were currently serving, and all those who felt called to serve, including those, like me, who joined upon graduation, as well as those patriots who were 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.

And, Senator Hatch, it's over to you.

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 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, and in fact some of the so- called examples of, quote, "conservative activist," unquote, opinions pointed to by Democrats were enjoined (ph) by some of the most liberal members of the court. And 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 Souter. Nina Totenberg of National Public Radio called David, quote, "a full-fledged member of the court's unabashedly liberal caucus," unquote.

In that case, the court merely held that under maritime law, which we all know is largely judge-made, punitive damages could not exceed actual damages of $1 billion.

You know, I see a lot of beating of the breast on these things. Let's just take the Citizens United case -- this is an important case -- v. the Federal Election Commission.

Of the cases usually cited in Democratic critiques of the court this is the only one in which the court actually struck down an act of Congress. It did so for a simple reason: The law passed by Congress violated fundamental law, the First Amendment of the United States of America, the United States Congress -- or Constitution, excuse me.

HATCH: 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 take to -- to pamphlets at the time, those books, movies or pamphlets that advocated for or against candidates.

Even the liberal American Civil Liberties Union brought a brief arguing that the law was facially unconstitutional and a poorly conceived effort to restrict political speech that 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 for -- to -- to the dictates of the First Amendment.

Now, the court simply returned the doctrine is espoused in the 1976 case of Buckley v. Valeo, which said that, quote, "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," unquote.

Now, this is then important point, I think, that just has to be pointed out. Democrats' claims that Citizens United overruled 100 years of precedent is simply and true. 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, I'd point out there are 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. 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. Quote, "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," unquote.

Now, in its -- in his opinion for the court, Chief Justice Roberts responded to your theory this way. Quote, "As a free-floating test for First Amendment coverage, that sentence wherein you stated that 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,'" unquote, he said that -- that "as a free-floating test," he said, "for First Amendment coverage, that sentence is startling and dangerous," unquote.

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 why I'm concerned about it. 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 costs, 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?

KAGAN: Senator Hatch, I -- I think you are wrong to be concerned about it. Let me first talk about the United States v. Stevens brief. It's been a 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...

HATCH: That none -- that none of us would like, that's for sure.

KAGAN: But it was -- it was a statute that -- 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 -- or, you know, 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 -- 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 -- in the brief, where the court has said, look, when it comes to obscenity or child pornography, child pornography is a -- is an especially apt example, because the -- the harm that Congress was trying to get at here, what Congress was trying to do, was to turn off the -- the spigot of distribution so that these materials would not be made in the first place.

And 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. And that's what Congress -- that that was clearly Congress is focus in -- in passing this animal cruelty statute.

And 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 the 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 is really aimed at stopping the initial production, the initial horrific acts that went into the production of the speech. And that was -- that was the government's view.

It was a view that was accepted by Justice Alito in the case. He was the only vote we got, but -- 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 it -- it -- another statue would've been easier to defend on First Amendment grounds, but we tried to do the best we could with it.

HATCH: You and I agree on that.

I still have just a couple of questions about the military recruiting issue. You said yesterday that, quote, "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," unquote.

Now, it seems to me, though, that in addition to who sponsors the recruiters, the real question was what they were able to -- to offer.

KAGAN: I'm sorry. What they were able...

HATCH: ... what -- 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 receive.

The Harvard Law School Veterans Association has 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 -- is that what you referred to yesterday as, quote, "full and complete access to our students," unquote? 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?

KAGAN: Senator Hatch, I -- 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 the student and the employer to hook up with each other.

And that's what our Office of Career Services do. We -- we have upwards of 700 or 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 or 800 employers are coming and where they are going to be, and to make sure...

HATCH: But you have to -- you have to admit that -- that the facilities weren't as available to the military, to the recruiters, that they would've been with the office -- the office that you're describing.

I mean, let -- let me make that point a little bit more clear, maybe. Yesterday, you also said that the military -- quote, "The military at all times during my deanship had full and good access," unquote.

Now, the judge advocate general's office, however, stated that without access to the office of career services, quote, "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," unquote.

Again, I'm not asking whether recruiting went up or down or whether there was some access to something at all time, but 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?

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, you know, 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. And so I do think that the military recruiters had excellent access either way and -- 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. And -- and I do think that the, you know, effects, in some sense, speak for themselves.

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 were 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, quote, "This, of course, would be a disaster," unquote.

That's something that -- 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, quote, "may be the best and most appropriate procedure in particular circumstances to save the life or preserve the health of the woman," unquote.

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 -- when striking down the Nebraska ban in Stenberg v. Carhart. And I'm really stunned by what appears to be a real politicalization 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 -- and they had concluded.

Did you write that memo?

KAGAN: Senator, with respect, I -- I don't think that that's what happened here.

HATCH: Well, I'm happy to have you clarify it. I don't -- that's my question. Did you write that memo?

KAGAN: I'm sorry, the memo which is...

HATCH: The memo that basically caused them to -- to go back to the language of medically necessary that was the big issue to begin with.

KAGAN: Yes, well, I've -- I've seen the document. And the document is...

HATCH: But did you write it, that -- your memo?

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.


KAGAN: If I could just go back, Senator Hatch.


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. And those were always his principles.

And we tried over the course of the people 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.

HATCH: My time is about up. Let me just ask that question again. Did you write, quote, "This, of course, would be a disaster," unquote?

KAGAN: The...


HATCH: ... handwriting. You didn't get that from the...


KAGAN: No, no, no. You're exactly right. I'm sorry. I didn't realize what you were referring...

HATCH: That's what I wanted to know.

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 -- 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.

HATCH: Mr. Chairman, I just have one or two sentences I'd like to say, and then I'll...

LEAHY: I'll give you extra time.

HATCH: Thank you, Mr. Chairman.

Well, I'll tell you this bothers me a lot, because I know that there are 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 -- 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 -- that you intervened in that particular area in that way.

HATCH: Well, that is all I'll say about it, but I just wanted you to be aware of that that bothers me.

KAGAN: Senator Hatch, there was no way in which I would have or could have intervened with ACOG, which is a respected bodies 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. And President Clinton found it so, and -- 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 in all of 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.

HATCH: One of the things that I did as an attorney was represent doctors, including some obstetricians and gynecologists. And I had a lot of experience with them. I hardly 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. And even though I care a great deal for you and respect you.

Thank you, Mr. Chairman.

LEAHY: I -- (inaudible), 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 position 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 10th 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 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 that 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 that Professor McConnell views as important to those who adhere to a generally conservative understanding of the role of the Supreme Court in 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 a 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 has skillfully navigated political waters, but she has also demonstrated another quality. Publicly and privately in her scholarly work and in her arguments on behalf of the United States, Elena Kagan has demonstrated fidelity to legal principle even when it means crossing her political and ideological allies. This is an admirable and essential quality in a judge."

Now, just as my fellow conservatives asked us to accept Professor McConnell would be -- would uphold the law and asked us, Senator Hatch, to vote for him. They did. I would note that he -- 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.

HATCH: Mr. Chairman, if I could just add, that is 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 cosponsor, along with Senator Biden.

LEAHY: I know you were. That was his position.

HATCH: So I understand...


LEAHY: We have about four minutes left in the vote.

HATCH: Thank you, Mr. Chairman.

LEAHY: I would yield to Senator Feinstein.

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 would 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 religion and the government would remain separate and independent of each other. And I think that is 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 that held that taxpayers no longer have constitutional standing to bring challenges to the 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 allow whether the executive branch is complying with the Constitution?

That is three things at one time, but I think you are probably able to handle them.

KAGAN: OK, Senator Feinstein, I will try.

I guess I will 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 is important to recognize that there are many times where that is not so, whereas 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 persons's religious practice. And the law 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 comes in and says, "Well, what do you mean you are giving that exception, but you're not giving me an exemption. 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 -- to the free exercise of religion, but then there's a claim that that violates the establishment clause part of the First Amendment. And that is the kind of way in which there might be tension.

KAGAN: But what the -- the court has said with respect to this issue -- and there seems to be 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 -- 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.

And 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 -- in -- in order to prevent the state from sort of not being able to do anything, from being hamstrung in -- in this area.

As to -- as to what establishment clause test 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 -- 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 -- and 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 -- 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 -- has -- 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 -- of -- of factual situations and circumstances.

And -- and -- and 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 -- 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 -- what they're both designed to do is to ensure that you have full rights as an -- as an American citizen, you are a part of this country, no matter what your religion is, and -- and to -- 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 -- of -- of both parts of the amendment.

As in 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 -- the court has stated that taxpayers generally have standing to make certain kinds of establishment clause claims, specifically claims against congressional legislation, and when -- that a taxpayer can, by virtue of being a taxpayer, can sue to contest governmental actions taken under Congress's power to appropriate money, but -- 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 may -- that there may not be somebody who has standing to contest such action. I think what the court has suggested is just that the -- the sort of normal injury that Article III 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 a -- I think a case on the docket...

FEINSTEIN: Such as the individual being actually affected?

KAGAN: Yes, exactly right.

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. And I think your -- your knowledge of the law and your ability to order your answers is really very impressive. And I -- I just want you to know that.

Now I want to say something.

If you were 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 it 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. And for such a substantial time, she had been doing the same work as a man and not been paid for it.

And so I think, as more women are on the highest court, I really believe that, once you cross that threshold and the door is open, it remains open for all time and others will follow.

I wished I had said this to Justice Sotomayor, but I didn't think of it at the time, but, you know, you're a wonderful role model for women and that we'll forget whether you're a Democrat or Republican. You know, you're reasoned, you have a commitment, you have a dedication and a staying power, and you do us all well, and that's what I wanted to say. So thank you very much.

And now I'll recognize Senator Grassley.

GRASSLEY: Do I get to use your unused six minutes?

FEINSTEIN: You want to use my six minutes? You can.

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 case in Kelo wrote that the government could take a person's private property for 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?

KAGAN: Senator Grassley, it was obviously a very controversial decision that has inspired a great deal of action in the state legislatures.

I've -- I've -- 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. And 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 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 Calder v. Bull. The principle of Calder 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. And the question 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 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 -- 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."

And 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.

GRASSLEY: Are there any limits on the public benefit doctrine?

KAGAN: Well, I do think 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 fact themselves. I don't think that the court went beyond those facts in its decision.

GRASSLEY: Under Kelo, the court said that the pretextual (ph) takings are still unconstitutional violation of public use doctrine. Could you give me an example of a condemnation that's an unconstitutional pretextual (ph) taking?

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 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 Calder 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 the kind you're speaking about on the doctrine.

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.

KAGAN: Well, you know, I've tried very hard, Senator Grassley, not to suggest where I see deficiencies with -- in -- in -- in the court's handling of cases. So I think, you know, I think I won't answer that question with that degree of specificity.

I mean, it is quite clear that the -- that the Constitution does in various ways, and most notably by the takings clause, protect property rights, and that the job of the courts in -- with respect to those rights, as any other, is to ensure that government does not overstep its proper bounds.

GRASSLEY: The president who appointed you, in "Audacity For 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?

KAGAN: Well, 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.

GRASSLEY: I want to -- I want to bring up Second Amendment again.

In Printz 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 March '97 memo, Dennis Burke (ph) wrote that based upon a suggestion from you, he asked the Department 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 10th amendment, but suggests a power the president has to make laws on his own.

Was it your position that the president has authority by executive order to prohibit federal firearms dealers from selling handguns without local law enforcement certification?

KAGAN: That was not my position, Senator Grassley. And if we could just step back a moment.

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 Krisky (ph), I guess it is.

"Based upon Elena's suggestion, I have also asked both Treasury and Justice to give us options on what the president of the United States could do by executive action. For example, could be by executive order" -- "could he by executive order prohibit the FFL from selling handgun without the local law enforcement certification." It uses the acronym CLEO there. "We will continue to pursue."

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 Printz, there was -- there was a -- 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 '96 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 -- 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 Printz held that system unconstitutional, said that that was a violation of the 10th Amendment because it inappropriately commandeered state officials for federal purposes.

And what that meant was that there was a kind of gap. The -- 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 (ph) 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 two years -- to ensure that background checks could be done consistent with the Brady law.

And 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 -- 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 and -- until the federal system came into play and sort of mooted out the whole inquiry.

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.

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 -- if there was no legislative authorization, then he couldn't do it.

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 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?

KAGAN: As I said, I -- I -- 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 effect, that the president didn't have that power before and doesn't have that power after.

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 pre-existing fundamental right.

William Blackstone, who the Supreme Court has called, quote, "the pre-eminent authority on English law for the founding generation," end of quote, cited the arms provision as, quote, "one of the fundamental rights of Englishmen," calling it, quote, "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 pre-existing fundamental right? Is it a notion created in the law as an affirmative defense in criminal statutes?

KAGAN: Senator Grassley, I've never had occasion to -- to -- 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, and -- and -- and the majority opinion in Heller really does speak of self-defense as the central element of that right.

GRASSLEY: Yes. And let me introduce here the quote specifically, quote, "deeply rooted in this nation's history and traditions," end of quote, from Heller.

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.

GRASSLEY: OK. I'll move on to marriage as 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?

KAGAN: Senator Grassley, there -- there -- there is, of course, a case coming down the road, and I want to be extremely careful about this question and -- and not to in any way prejudge any case that might come before me.

GRASSLEY: That's your right. So you don't want to say any more. Is that what you're saying?

KAGAN: I think I'll leave it there, given the...

GRASSLEY: Well, then let me follow up. Do you agree that the Supreme Court's decision in Baker v. Nelson, 1972, holding that the federal courts lacked jurisdiction to hear challenges to state marriage laws, quote, "for want of a substantial federal question," end of quote? Do you -- do you -- do you agree with that decision? Why or why not? Is it settled law, in other words?

KAGAN: So I think that that -- my -- my best understanding is that that decision has some precedential weight, but -- but not the weight of a -- of a, quote, unquote, "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. And it dismissed it summarily without hearing arguments or -- or -- or reading briefs or -- or -- or whatever, just saying it was not going to accept the -- the -- 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 -- the -- 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.

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 Supreme Court, but you're saying that this may not be settled law?

KAGAN: Well, my understanding is that there's sort of a -- a -- a question about the precedential effect of those kinds of summary dispositions. And my -- what -- 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.

GRASSLEY: Well, the decision involved the 14th Amendment that was ratified, as you know, back in 1868, and the case was decided in 1972, to what has changed in the 14th Amendment since

then to warrant a new review under the 14th Amendment that this might not be a federal question or that this is not a federal question.

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 -- to hear the -- to -- to read the briefs.

GRASSLEY: In regard to that in stare decisis and all that stuff, what weight would you give to Baker v. Nelson?

KAGAN: Well, as I suggested, Senator Grassley, I -- I -- I first -- I think that there is 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 to talk to my colleagues about that question.

My -- my best understanding is that what most people think is that the summary dispositions get some precedential weight, but they -- and -- and -- but they don't get the full weight that a fully briefed, fully argued decision get.

And there is -- you can see why people might think that is 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 said, this is -- this is not a question on which I've thought deeply. I'm -- 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 courts to consider. And -- and I would do so in the -- in the usual way.

GRASSLEY: I would only say that I'm disappointed that you didn't use the words "settled law," the same definitive matter in regard to Baker versus Nelson, as you have so many other times in the last two days. And, well, that's it.

LEAHY: Well, actually, the -- the answer she gave was basic hornbook law, the -- the generally accepted -- totally accepted hornbook law. But did you have another question on that, because...


LEAHY: Then, Senator Specter?

Then after Senator Specter finishes, again I'd urge senators if you don't feel you need the whole 20 minutes -- I've allowed some of the 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. We will then break for lunch immediately when Senator Specter finishes.

SPECTER: Thank you, Mr. Chairman. I believe that I can finish in less than 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 were 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.

And I want to talk to you initially about two cases, the Holocaust survivors and the survivors of victims of 9/11, two cases that you are intimately familiar with, because you worked on them as solicitor general, and I've 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 a decision by the court. The Congress, as I mentioned briefly earlier, has the power to direct the court to take certain cases, as the Congress did with the McCain-Feingold, the flag burning case, Federal Fair Labor Standards Act.

The Holocaust issue was the one where Holocaust victims suffer 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 a resolution of such claims through an international commission.

Well, that seems like a wrong decision to me. You have an insurance policy. 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'd decide it, would you vote to have the Supreme Court consider that case?

KAGAN: Senator Specter, this is difficult for me, because I -- as I understand this, this is a -- 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...

SPECTER: If you were on the court, you would recuse yourself. This would be one of those cases, wouldn't it?

KAGAN: That is -- that is true, Senator Specter, but -- but I don't -- I don't want to count my chickens. And before I am confirmed, I -- I still am solicitor general, and I'm the counsel of...

SPECTER: Ms. Kagan, you're -- you're counting your chickens right now. I'm one of your chickens, potentially.


Reminds me of the Churchill -- the Churchill speech to Canada -- some neck, some chicken.

KAGAN: I -- 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.

SPECTER: Ms. Kagan, I'm asking you how you would decide a case, how you -- what you would decide on taking the case. Would you hear this case or not?

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 -- I don't think that I can say how it would vote on a -- on a cert response that the solicitor general will be filing.

SPECTER: Well, Ms. Kagan, I don't see why not, but the clock is running. I'm going to move on.

The next identical question involves a lawsuit brought by the survivors of the victims of 9/11. And there the Court of Appeals for the Second Circuit said that the -- a 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 -- the terrorist list.

Well, it has 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.

And the question is would you think that case ought to have been hurt by the Supreme Court? As a justice, would you vote to take that kind of a case?

KAGAN: Senator Specter, the -- 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. And -- and, you know, I don't think it would be right for me to undermine the position that we taken that way by suggesting that it was wrong.

It was, in fact, a -- a position of the United States government in line with the interests of the United States government that it authorized and that I thought was -- was appropriate for a number of reasons, which -- which I'm happy to talk about with you.

But -- but I -- but I -- I can say -- I mean, I've -- I've not said with respect to any of -- I think that the decisions that I made as solicitor general on behalf of the United States government as my client are -- are ones that I can't undermine in this -- and this hearing room.

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?

KAGAN: Well, Senator Specter, I -- 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 essentially has 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.

SPECTER: You said all of that yesterday. Would you take the case?

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 challenge surveillance policies when the very notion of those surveillance policy -- when -- 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 -- 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.

SPECTER: I -- I'll move on. 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 Works (ph), which I talked to you about, Justice Harlan. You have the congruence and 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?

KAGAN: Senator Specter, as I understand it, the congruence and proportionality test is currently the law of the court, and notwithstanding that it's been subjected to significant criticism. And notwithstanding 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 goal posts don't keep changing and so, you know, Congress can do what -- can pass legislation confident in the knowledge that that legislation will be valid. And I think that those concerns are of very significant weight.

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.

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...

KAGAN: Well, Senator specter, I certainly do have to read briefs and...

SPECTER: And perhaps you haven't answered much of anything.

KAGAN: Senator Specter, I -- I do have to read briefs and listen to arguments and discuss...

SPECTER: Why do you have to read briefs on a standard? This is not a specific case.

KAGAN: This is...

SPECTER: This is a standard as to whether the rational basis is sufficient or whether you're going to have congruence and proportionality.

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.

SPECTER: Well, Solicitor General Kagan, I think the commentaries in the media are accurate. We started off with standard 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 in vogue since -- since Bork. And you quoted me in your law review article that someday the Senate would stand up on its hind legs.

It would be my hope that we could find someplace 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? And there, I'm pleased with your response on television. Brandeis in 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 -- 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.

LEAHY: Without objection.

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's good faith, but it does leave us perplexed as to where we're at.

Mr. Chairman, I thank you.

Solicitor General Kagan, thank you.

Mr. Chairman, I yield back the balance of my time.

LEAHY: Thank you.

And we will -- we will recess. It's now 1:10. Let's be back here about 2:10.

Thank you. We stand in recess.


LEAHY: I welcome every -- everyone back.

I couldn't help but notice that General Claudia Kennedy is in the second row, the first woman to achieve the rank of three-star general, United States Army.

And the whole thing will be put in the record, but I appreciate very much, General, what you wrote. I'll just read one paragraph of it.

General Kennedy says, "I commanded both intelligence and recruiting units during my career in the military. Based on my experience in military recruiting, I'm 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'm pleased to be here today to lend my support to her confirmation."

Of course, we'll hear more later, but that will be part of the record.

And I believe, Senator Kyl, you're next.

KYL: Once again, we play to a packed crowd here.

LEAHY: Well, that's because -- I think everybody has asked most of the questions, but if somebody has a few more.

KYL: Well, Mr. Chairman...

KAGAN: (inaudible) the emphasis on a few.

KYL: Yes, 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 at 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?

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 days, Congress came together, 84-15, a remarkable act of bipartisanship, and passed a very good piece of legislation, which did provide Article 3 review of...

KYL: Excuse me...


KAGAN: ... those military commission determinations.

KYL: There was more to it than that, though. You suggested in the letter that the habeas rights of which with you were speaking should apply beyond Guantanamo to foreign theaters of war.

You wrote, and I'm quoting now, "We cannot imagine a more inappropriate movement to remove scrutiny" -- and the scrutiny means -- is equivalent here to habeas jurisdiction -- "of executive branch treatment of noncitizen detainees. We're all aware of serious and disturbing reports of secret overseas prisons, extraordinary renditions and the abuse of prisoners in Guantanamo, Iraq and Afghanistan."

Now, if abuses exist in all three places, the obvious import of your argument was that the reach of habeas should extend to Guantanamo, Iraq and Afghanistan.

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've, as solicitor general, I've advocated strongly and I made sure that my name appeared as counsel of record on the United States government's Bagram brief, because I believed that the United States has very strong interests in this...

KYL: Here's my question. That is the position you took as solicitor general, dealing with the rights of habeas at 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'll be the position you argued on behalf of a client, the United States, or what was personally in your heart and caused to you write with such passion to members of the Senate here.

KAGAN: Well, the letter I do think was focusing on Guantanamo detainees and was focusing on two questions.

KYL: But it wasn't limited and you specifically went out of your way to include also Iraq and Afghanistan in the same clause.

KAGAN: I think we can argue about the letter. The legislation and...


KYL: So what is your personal view then, that it would not apply to Bagram, just to use a very specific example?

KAGAN: The...

KYL: As you argued in the Michaela (ph) case?

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. This -- excuse me this question could come to the court.

KYL: But if I can just interrupt, you understand what I'm asking here. If a case similar to that came to the court and you didn't recuse yourself, I don't know whether you'd take the position that you argued on behalf of a client or you'd take the position that was apparently on your heart when you wrote this letter to us.

KAGAN: Well, Senator Kyl, I don't think that that letter expresses a view on the question of habeas rights at Bagram. I think that that letter was focused on the Guantanamo issue. As to...

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."

KAGAN: I think that that's just a description of what we were aware of, but the focus of the letter...


KYL: You also said in the letter, and I'm quoting now, "Unfortunately, the Graham amendment would prohibit..."

LEAHY: I'll give extra time, if need be, but let her answer the question...


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 Boumediene case nor the MCA 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?

KAGAN: Senator Kyl, I don't believe that that is a question that has come before the court, and given that...

KYL: It has not. You're right.

KAGAN: And I would not want to suggest how I would decide that question...


KYL: Well, 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?

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 questions that you're talking about.

KYL: I absolutely disagree with you about that. It dealt with habeas to challenge detention practices, treatment of prisoners, adjudications of their guilt and their punishment. That's what the letter specifically said. I quoted it accurately here.

KAGAN: Senator Kyl...

KYL: Now, we later changed the amendment to only relate to the determination of guilt and punishment. We left out the treatment of prisoners 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 into -- into our military justice system it would -- it could grind it to a halt.

Go ahead.

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 -- of the way I would approach as a judge the sort of questions that you're asking me about.

KAGAN: Now, you know, I'm 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.

KYL: I think that's appropriate, and it may offer something else to you. If -- and I invite you to do this. I will 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 have 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'd like to.

Let me switch subject here. During the solicitor general hearing -- the hearing for your nomination as S.G., you said in response to a 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?

KAGAN: Senator Kyl, that -- 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 in -- in -- with appropriate vigor, defend the constitutionality of 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 defending...


KYL: But 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.

KAGAN: I was absolutely saying that I understood the state of the law and that I accepted the state of the law.

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?

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.

KYL: So you wouldn't tell us today, then, whether you believe that the Constitution could be properly read to include such a right?

KAGAN: I don't think that that would be appropriate. As Senator Grassley and I talked about, there is a case that's pending. This -- the case may, or some other case might come before the court and so I couldn't go any further than that.

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.

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.

KYL: The -- two Arizona -- I mean, the Arizona case I was talking to you about before our last questioning concluded, the Chamber of Commerce v. Candeleria 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 Ninth 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 were -- there was a split in the circuits. 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 these cases or 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?

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.

KYL: So you cannot tell the committee whether or not there was any contact, irrespective of the content of the contact?

KAGAN: Senator Kyl, I -- I don't think it would be right for me to talk about, you know, particular contacts in 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.

KYL: I -- 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 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?

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 is 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.

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 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 exact 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, that judges shouldn't be bound by foreign legal precedents.

Now, that's a -- and then you close by saying "fundamentally we have an American Constitution. Our Constitution is our own."

I have seen that formulation before and I'm troubled by it because it suggests you can 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 legislatures should have any bearing on U.S. court interpretation of the U.S. Constitution.

KAGAN: Senator Kyl, I do believe this is an American Constitution, that one interprets it by looking at the text, 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 is 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. Many countries don't. Suppose that it were...

KYL: Yes, but -- excuse me, but of what relevance is that to the U.S. Constitution? We have many things other countries don't because we have a unique Constitution.

KAGAN: I'm just trying to suggest that it is of the same kind of relevance as it would be if you read a law review article about a similar subject.

KYL: OK, well what you're 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 case, of your position?

KAGAN: I said yesterday, when I talked about the subject, I said it -- that I -- I used as an example a brief that the -- the solicitor general's office had filed on the Foreign Sovereign Immunities Act. When we filed that brief, we talked about some -- what some other countries had done on the Foreign Sovereign Immunities...

KYL: Because you thought it might appeal to some of the members of the court?

KAGAN: Because...

KYL: Well, right or not?

KAGAN: ... the question of -- of -- 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 about...


KYL: So I -- I just wondered why you'd take the space then to include them in an opinion.

Let ask you one final question. And, by the way, this is thanks to -- 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 I would ask you. I apologize. But I'm just going to quote from -- 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 Antonin 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. A 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?

KAGAN: I think we have a Constitution, and it's the same Constitution that we've always had, putting aside the Article V amendment process, and that it is meant to endure for the ages.

The Constitution does not change, but it is -- it does -- it is asked to apply and -- and courts must apply it to changing circumstances and to changing conditions. And -- and -- and in the course of that application, there is development in constitutional law. The Constitution itself is fixed, and the Constitution itself is binding.

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.

And appreciate...

SESSIONS: Mr. Chairman, are you suggesting, Senator Kyl, that I -- I was a few moments late. Was there an agreement that...

KYL: No, no agreement.

SESSIONS: ... we've decided not to have a third round and -- and just finish with this round?

LEAHY: How much longer would you need to ask your...

KYL: Well, I -- I just really have the one other question, but I don't want to take my colleagues' time.


SESSIONS: OK, I just didn't know...

KYL: I'd be happy to take the time when they're done, Mr. Chairman.

LEAHY: Well, if you want to -- rather than have to have -- rather than have you come back, I -- I did mention earlier before you came in not a specific time, but because things got changed so much because of the situation with, basically, three days of funerals, so if you've got further...

KYL: Let me just throw it out there.


KYL: Thank you. And I know that...


KYL: ... at least Senator Coburn and Senator...

SESSIONS: I thank the chairman.

KYL: ... 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. And 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 role 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 of the court of its responsibility to interpret that article of the Constitution -- 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?

KAGAN: Well, the court has interpreted the commerce clause broadly, not in an unlimited way, but broadly. I -- I agree with you, Senator Kyl, that the court has an important role to play in this, as in any area, in order to -- in order to ensure that 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, that the general view has been that regulations affecting interstate commerce primarily are the prerogative of Congress and not of the courts, that 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 -- and -- and for sure would not think that it's appropriate to abdicate in this area, but do think that deference is generally correct with respect to economic legislation.

KYL: I appreciate your answer.

LEAHY: (OFF-MIKE) 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's been enter into by many countries, I don't see anything wrong with seeing the way the treaty has been interpreted in other countries, in 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 Alito said at his confirmation hearing. I -- I don't recall anybody disagreeing with him. Do you disagree with that?

KAGAN: No, that sounds right.

LEAHY: Thank you.

(UNKNOWN): I don't, either.

LEAHY: Senator Graham?

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?

KAGAN: Yes, sir.

GRAHAM: I think most people are. It's an 1896 case, and it interpreted the equal protection clause how? What did it say?

KAGAN: It said that separate but equal facilities were consistent with the equal protection clause.

GRAHAM: OK, now that's in 1896. And do you know -- or are you familiar with Justice Henry Billings Brown?

KAGAN: I feel as though I should be, but I'm going to say no.

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 to consist 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 upon 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 -- can never change a case, this is a good example of where, I think, we're all glad the case changed.

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?

KAGAN: It did not.

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?

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.

GRAHAM: It was the last in a line of decisions, right?

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 advocate, 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. And 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 -- in Brown, that by the time reached Brown...

GRAHAM: And I think most Americans, if not universal, as close to universal as we'll ever get as a nation, 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 to impose limitations on abortion was almost nonexistent. After viability, it was sort of a 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?

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 on the woman's ability to have an abortion.

GRAHAM: It is fair for the court to consider scientific changes in -- when a fetus becomes viable as medical science evolves?

KAGAN: Senator Graham, I do think that in every area that it is fair to consider scientific changes. We've -- I've -- I've talked in the past about how different forms of technology influence the evolution of the court's Fourth Amendment jurisprudence.

GRAHAM: Well, I'm -- I'm glad to hear you say that, because just as it 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 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, some place 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.

KAGAN: I would have taken you.

GRAHAM: Well, not with my SAT scores. I couldn't even play football at Harvard.

Now, this "don't ask/don't tell" policy you thought to be unwise and unjust. Is that -- you said that, I believe?

KAGAN: I did, Senator Graham.

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 -- 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?

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.

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?

KAGAN: Senator Graham, the -- the recruiters could have met on campus, as well. The only...

GRAHAM: That's what I'm saying. It wasn't a ban. It was just they couldn't come to the law school.

KAGAN: And could have met -- and could have met -- met on the law school campus. The only restriction that we put on was that the office of career services couldn't provide assistance.

GRAHAM: Which is the place where most students met employers?

KAGAN: No, it's just an office, really. I mean, most -- 95 percent of interviews from employers at Harvard Law School...

GRAHAM: But here's the point. It's clearly not just an office. It was a political statement that you were making, I think -- and 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're 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?

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 longstanding anti- discrimination policy.

So it wasn't me making a political statement. It was me, as -- 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 it...

GRAHAM: Well, would 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?

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.

GRAHAM: OK. 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?

KAGAN: It was not, Senator Graham. I was -- I was just trying to defend a very longstanding and...

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 the -- you were a lawyer who played an advocate role in the Clinton administration regarding formulation of policy. Is that correct?

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.

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?

KAGAN: The American College of Obstetricians and Gynecologists.

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?

KAGAN: No, sir, it was not. I mean, my -- this was...

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 have wanted. If I really did believe that partial-birth abortion, as being proposed, was too restrictive -- and I think you honestly believed 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?

KAGAN: Senator, I was working for a president who had clear views on this subject.

GRAHAM: But you were trying to take him to an area where he even felt a bit uncomfortable.

GRAHAM: 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'd be very few cases where an abortion would be allowed under the way this thing is 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?

KAGAN: With respect, Senator, it's not true. I had no agenda with respect to this issue. I was trying...

GRAHAM: Now, 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.

KAGAN: I was trying to implement the agenda of the United States president whom I worked for. So I was...

GRAHAM: So did you have a personal belief that partial-birth abortion was, as being proposed, was too strictive (ph) on a woman's right to choose?

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.

GRAHAM: But here's the difference 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 the 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 -- you don't agree with me there.

KAGAN: Senator Graham, the two of us have agreed on many things over the course of this hearing, but...

GRAHAM: We just don't agree on this.

KAGAN: ... but we don't agree on this. What I tried 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.

GRAHAM: Fair enough.

KAGAN: And when I became a policy person, to enforce and to ensure that his policy views were carried out.

GRAHAM: I just, quite frankly, am surprised to hear that because if I believed the way you did and I had the opportunity to serve at that level, I'd 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.

KAGAN: I'm sorry?

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, we just -- it seems to be an activist judge is somebody that rules the way we don't like. And it's getting to be no more sophisticated than that. I'd like it to be more sophisticated than that.

So what is your definition of an activist judge?

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.

GRAHAM: Well, our guys say that Justice Marshall was an activist judge. Do you agree with that?

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.

GRAHAM: Yes, 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 disagreed with a lot of his rulings. That's the way it should be. And if our people say that's activism, so be it.

I hope Justice Roberts, which I think is one of the most gifted -- intellectually gift people I've ever met, is being called by my colleagues on the other side for two days now an activist court. And we've got somebody who 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?

KAGAN: You know, I have a feeling that if I do that, I'm going to end up doing many things that I regret.


GRAHAM: Well, here's what I regret. I regret all of us throwing these terms around without 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's 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.

KYL: (inaudible)


GRAHAM: 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?

KAGAN: I think it means that the court can change a statute, and I think that that's wrong.

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.

KAGAN: Now we're back to agreeing, Senator Graham.

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. And the -- 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, 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's proud of you and I think you've acquitted yourself very well for the last several days.

KAGAN: Thank you, Senator Graham.

CARDIN: Thank you, Senator Graham.

Let me -- 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 Gonzales v. Carhart, in which a court rejected a facial challenge to the federal Partial-Birth Abortion Act based on stare decisis.

That's what you said at the last hearing. I assume that's your position today.

KAGAN: Absolutely, Senator Carhart (sic), that the Gonzales case is settled law, entitled to all the precedent of settled law going forward.

CARDIN: I just really want to make a personal comment, as I did in my opening statement.

Many of us believe Roe v. Wade is a matter of privacy and a woman's right of choice and is not really taking sides on abortion, not whether you favor or oppose abortions, whether you favor a woman's choice and the 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.

CARDIN: I'm quoting Senator Graham correctly when he said, if we took the war on terror and made it a crime, we'd have a problem for our country.

And I think that sort of misses the point. And as solicitor general, I think the point that the administration was -- was -- 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 a criminal -- by an enemy combatant was criminal, we want to use an Article III proceeding and 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 -- in a military commission, or whether it's in an Article III court under our criminal code?

Am I -- was that the position that the administration was -- was taking when you were solicitor general or as -- you are still solicitor general?

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.

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.

GRAHAM: If I could, Senator...

CARDIN: Certainly.

GRAHAM: ... I guess that was a question for her, but I'll answer it, and let's see if you disagree with my answer.

I really have no problem using Article III 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 hybrid, 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 an Article III 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's 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.

CARDIN: Well, I thank you. 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 grip with as the legislative branch of government, hopefully working closely with the executive branch.

The bottom line is that 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 or whether it's within our Article III 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, and 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 -- the freedom of religion is a critical part of this country's tradition.

When we discuss 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 -- 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. And I guess my point -- my question to you is, what special protections should students have under the establishment clause?

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 Lee v. Weisman case is one that does use that coercion test in -- in a way that provokes strong disagreement, as well, the question about whether that graduation prayer did coerce students in -- in -- in a constitutionally meaningful manner. Senator Kennedy, a majority of the court held that it -- held that it did.

As the court's precedent has come down, it seems a -- a highly fact-specific inquiry. Certainly, the coercion test is used most often when it comes to children. And the -- 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 -- the -- the government's impact and coercive impact. And I think that Lee v. Weisman reflects that.

But it is a -- 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 -- the same kind of action, and some see coercion and some not.

CARDIN: Thank you very much for that -- that reply. It's very helpful.

With that, I'm going to recognize Senator Cornyn for his inquiries.

CORNYN: Thank you, Mr. Chairman.

General Kagan, let me -- let me start off just a little housekeeping, maybe some cats and dogs along the way, before we get into the main body of what I wanted to talk to you about.

My experience -- and I would be interested if your experience is the same -- 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, dissenting opinions, sometimes that they read into that 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?

KAGAN: Well, Senator Cornyn, I -- I do think that sometimes people can take a look at opinions, and they're -- 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, that there are good- faith differences on the law, but that the same people who are sort of taking swipes at each other in -- in opinions see each other as people who are operating in complete good faith and -- and get along with each other in the next case or the case before, and certainly in their lives.

CORNYN: Well, you made -- you made the point better than I did. And -- 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 -- who feel bound in a traditional view -- I spoke to this in my opening statement -- there were some folks -- or actually an op-ed that was published today that suggested that those of us who talked about Justice Marshall and -- and talking 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 a disagreement with his judicial philosophy?

KAGAN: Senator Cornyn, I didn't see the op-ed. I've been trying very hard not to read the papers.

CORNYN: That's smart.

KAGAN: Senator Cornyn, I -- I -- 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 -- I've gotten nothing but fairness and courteousness from everybody, from every member of the committee, and 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.

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?

KAGAN: You know, I think -- I would -- and I'm 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 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...

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 part -- 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?

KAGAN: Well, I think that traditions are most often looked to in considering the liberty clause of the 14th Amendment. I think every member of the court thinks that the liberty clause of the 14th Amendment applies to more than physical restraints. And I think almost every member thinks that it gives some substantive protection and not just procedural protections.

And then the question becomes: What substantive protections does it provide? And I think what -- I think the -- 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: Well, how --how do you define that and how 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?

CORNYN: Let me ask you another follow-up question. The author of the statement that I read is Goodwin Liu, a professor at the University of California at Berkeley and a pending judicial nominee. But he goes on to conclude, based on that statement of what the appropriate role of interpretation of the Constitution is, he goes on or he has concluded that the 14th 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 14th 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 14th Amendment requires the nationalization of education by prohibiting the local funding structure that states use to support their education systems.

In applying this interpretation 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?

KAGAN: Well...

CORNYN: I was going to ask whether you agree or disagree with some of those stated opinions about what the 14th Amendment means as Professor Liu has articulated.

KAGAN: You -- you said a lot there. And I think that the -- the view that I would have is consistent not with any particular article by Mr. Liu or otherwise, but is consistent with the way that the court has approached these questions. And I particularly think of the Glucksberg case which does talk about the 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 14th 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 -- should act in this area with appropriate caution and respect for democracy.

CORNYN: Well, I know you understand sort of the gist of where I'm coming from. The concern is, of course, that if judges, particularly federal judges who serve with lifetime tenure, believe it's within their power to interpret the Constitution based on their subjective notion of what represents evolving norms and traditions, that you very quickly become very separated from and untethered by 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 -- I'm 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 that 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 the desires and the wishes of the American people, and of course, we stand for election and we can be replaced if people disagree with us, but not judges.

Let me change topics here quickly. And I'm going to -- I have a series of questions here. 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. 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 the 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?

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.

CORNYN: And when they were barred from the Office of Career Services, you believe they still had good access. That's my question.

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.

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.

CORNYN: But basically you've -- you've -- 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, and -- which was an alternate channel for military recruiting, correct?

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 -- and that used the veterans association, and they -- the veterans association in all those years was -- was just great in doing the -- the -- the things that the Office of Career Services otherwise would do.

CORNYN: And as the dean of the law school, you had the power to make an exception to the anti-discrimination policy, if you -- if you chose to do so, correct?

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 -- if -- if -- if -- I do agree with you that I had substantial authority over that question.

CORNYN: That's all I'm asking. Conversely, the United States military didn't have any discretion to waive that policy because it was a -- a product of a congressional act. Do you agree with that?

KAGAN: I do, that the military could not sign the discrimination policy that Harvard had because -- 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 -- a -- a real imperative to enforce that policy, to defend that policy, but still to ensure that the military had very good access to all of our students so that they could serve in the military, because, you know, that was of critical importance.

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 -- isn't that true? Isn't that generally what the Solomon Amendment does, it denies federal funds to an institution that denies or -- or prohibits or in effect prevents military recruiting on campus?

KAGAN: Yes, it -- it places a condition on federal funding...

CORNYN: Right.

KAGAN: And I -- I forget the exact language, that the Solomon Amendment, but it's -- it's -- it's about military recruiting on campus, but...

CORNYN: Well -- and I think my -- my notes here from your earlier testimony were to the effect that you believe that this alternative, through the veterans center and other locations on campus, provided a, quote, "equally effective substitute," close quote. Is that correct?

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 -- and -- that -- that that was true, that their view that the policy enabled them good access was right, that the policy did enable them good access.

CORNYN: But your understanding was, at a certain point in time, that if -- if Harvard Law School continued with this policy of denying them access to the Office of Career Services, it would be denied federal funds?

KAGAN: Well, that happened before I became dean, so that happened a 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.

CORNYN: Well, and this is my -- this is my final point on this. If, as you say, that 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 -- sole result and impact was to stigmatize the United States military on the -- on the campus, a service -- the services that you say that you honor.

So explain to me what impact the policy had to -- other than to stigmatize the military.

KAGAN: Senator Cornyn, it -- it certainly was not to stigmatize the military. And 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 -- we -- we all have the freedoms that we have because of the military.

CORNYN: I -- I heard you say that, and I -- I would stipulate that is what you've 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.

KAGAN: I think -- 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 -- to support them or to support with respect to other employers any other students who are 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.

CORNYN: Mr. Chairman, I have 50 seconds remaining. I do have just a few more minutes of questions. And I'd be happy to do it on another round after my time or if you'd give me just a couple more minutes of flexibility, I'd be glad to finish.

LEAHY: In lieu of another round -- and we are going to take a break when you finish that -- do you have any problem with us (inaudible) the break and saving an extra round?

KAGAN: I'm sorry?

LEAHY: Do you have any problem of -- we're going to have a break when Senator Cornyn finishes. Do you have any problems going a couple more minutes? And this way he'll...

KAGAN: No, that's -- that's good. That's fine.

LEAHY: And he'll forgo another round.

KAGAN: That's great.

CORNYN: I'll be less than five minutes, if that's all right. OK, thank you.

Let me change -- change topics, Ms. Kagan. And this gets back to questions we've heard about the commerce clause. And, again, this is the -- sort of the jurisdictional hook that Congress finds in legislating in areas that -- that have provided, I think we would all agree, rather expansive federal jurisdiction over much of our -- 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 -- was -- was chief. By 5-4, the court said that government actions that were defended as legitimate regulations of commerce must deal with commerce as opposed to non-economic matters. I believe you said as much.

Do you agree with the court's decisions in Lopez and Morrison?

KAGAN: Well, Senator Cornyn, I've -- 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.

CORNYN: Do you know or do you recall whether you've ever written or spoken in expressing -- previously and having expressed an opinion one way or another about Lopez or Morrison?

KAGAN: You know, Senator Kyl asked me that question. I -- I -- I don't think that I've done any academic work on the subject. I don't know whether I've, you know, spoken about them in any of my many speeches or anything like that.

CORNYN: OK. Well, one -- one document that we -- that was among the many documents we got from the Clinton archives that has been produced, there was a -- a memo you sent to the deputy chief 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, quote, "broad significance," close quote, of the opinion.

In that memo, you said, quote, "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," close quote.

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 that I just referred to. The opening paragraph of the article reads, quote, "A head-strong 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," close quote.

Did -- did you agree then that the article that -- with that article that the Supreme Court's federalism jurisprudence was reactionary and dangerous?

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 it just sort of think of as the Seminole tribe memo. It's a memo about the Seminole tribe case.

CORNYN: Right.

KAGAN: And I -- I think that I was -- you know, what I did was I described that case. I guess I -- I said in light of -- 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 years.

I think that that was probably, if I -- if I caught that sentence that you wrote, I had referred to Lopez, but this is probably before Morrison. So I think that there were this -- 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 -- so that was a few years of -- you know, important developments in the law relating to the federal-state balance.

CORNYN: In fairness to you, what my question is is about the article, not your -- what -- not what you wrote.

KAGAN: And I've -- I've not seen that.

CORNYN: And the article refers to the Supreme Court's federalism jurisprudence as reactionary and dangerous. Do you agree with that characterization, or do you disagree?

KAGAN: Well, Senator Cornyn, I -- I have refrained from saying thumbs up, thumbs down on any cases. I think that...

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?

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 our settled law, and I have, you know, no -- I say this -- no plan, no purpose, no agenda, no anything to -- to mess with them.


CORNYN: That's a -- that's a legal term, I think right?

KAGAN: Mess with them.

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?

KAGAN: Yes, I wouldn't try to, Senator Cornyn. The -- the test that the current court is using is this -- is this test of economic versus 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'll decide -- in the appropriate way by reading the briefs and listening to the arguments and talking to my colleagues.

CORNYN: Thank you very much.

KAGAN: Thank you, Senator Cornyn.

LEAHY: Cornyn, does that get you all the time you want? Thank you very much.

Then we will take a recess subject to the call of the chair. Thank you.


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'll finish the questions -- and we don't have all that much left -- and then we -- as far as the press go, we will then go to the traditional closed session. And the press won't be able to be there. And (inaudible) one camera. And then that will be it for tonight.

And the public witnesses -- I've talked with Senator Sessions -- we'll begin with those after the rest and repose time in the Senate with Senator Byrd tomorrow. You, of course, can sit with your feet up and watch that part.

KAGAN: I can't come back?


LEAHY: You know, if you're that much of a glutton for punishment, you're not qualified to be in the Supreme Court.


But you can -- you can throw kisses to the TV set for those who say nice things, and you can throw stuff at the TV set for those who say bad things.

KAGAN: You know, I think I won't watch.


LEAHY: You know, that's probably not a bad idea. I'm sure your staff will -- Ms. Davies (ph) will tell you the...

KAGAN: Tell me anything I need to know.

LEAHY: She'll tell you when the -- when the good news comes.

With that, Senator Whitehouse?

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?


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?

KAGAN: That would be the worst possible thing.

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?

KAGAN: Senator Whitehouse, as -- as you asked the question, that seems unlikely.

WHITEHOUSE: Doesn't it?


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?

KAGAN: Senator Whitehouse, I -- I -- I guess I don't want to make any comment about how one should -- how one should discover a judge with an agenda.

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.

KAGAN: Senator Whitehouse, I -- I -- I think I can only say what I -- I just said.

WHITEHOUSE: Well, I wonder if there might be -- we've discussed a few other things that might be similar tell-tales, if judges were seeking to impose a particular point of view or to reflect a particular point of view.

Those tell-tales, 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 tell-tale that we discussed.

Another tell-tale 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 tell-tale 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 tell-tales that you can think of that would suggest the presence of a particular agenda or motivation on the part of judges beyond those?

KAGAN: Senator Whitehouse, I have to be honest with you and say that I'm more focused on -- right now on what I would do as a justice, if I'm fortunate enough to be concerned, than -- than any ways of discovering what any other judge might do that's -- that's inappropriate.

As -- 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 -- the job and the institution.

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 tell-tales 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've steered it so hard to the right.

Of the tell-tales that we've talked about, a pattern of decisions going a certain way, a tendency towards 5 to 4 decisions, an improbable 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? -- 5 for 5.

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 precedents and how nothing but balls and strikes would be called and how clearly we were going to be very careful, modest, precedent-respecting judges.

And then we saw this. Every available tell-tale 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.

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 institution and each of the members on it. And that respect has grown every day in the year that I've been solicitor general.

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 tell-tales 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. And 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.

KAGAN: Thank you.

WHITEHOUSE: Mr. Chairman?

LEAHY: Thank you very much, Senator Whitehouse.

Senator Coburn?

COBURN: Thank you.

Well, here we go. I was just wondering, yesterday you asked a question about -- 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?

KAGAN: I don't know, Senator Coburn.

COBURN: Good question. Do you believe he should have been confirmed?

KAGAN: I -- I said that he is a great lawyer and a great human being, and I think I was asked whether he...

COBURN: I'm asking you whether or not you believe he should have been confirmed.

KAGAN: I wasn't trying to avoid your question. I think he'd be a great judge.

COBURN: So your answer is yes?


COBURN: And if you were sitting up here, you would have voted for him. Is that correct?

KAGAN: I would have.

COBURN: Thank you. Moving on...

KAGAN: I hope I would have anyway. You know, who knows what it feels like to be one of you guys and to -- to be subject to all the things that you guys are subject to.

COBURN: I want to give you a big secret. It's not all that much fun.


I have to reply to my colleague from Rhode Island. I gave a speech two or three weeks ago on the Senate floor talking about hearings. We didn't always have hearings. They're a relatively new phenomenon in the history of our country. You know, we had two areas of very distinct testimony about Judge Sotomayor, which she has demonstrated she did not live up to in the two most recent cases of the Supreme Court.

So, you know, 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. And 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?

KAGAN: Senator Coburn, it's an interesting question because, of course, you want everybody -- every -- 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...

COBURN: Well, 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?

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.

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?

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 -- that's not to say, you know -- it's hard to know how these things work out over time. And -- but, you know, it's -- the country is well served when people have confidence in the institutions that lead them.

COBURN: And -- 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?

KAGAN: I believe that thoroughly. When I gave my opening statement, I said that the blessings of liberty, which is the phrase that our Constitution uses, the blessings of liberty are rooted in the rule of law.

COBURN Yes, well, I wonder if you've ever thought of it as I have. I'm 12 or 13 years older than you. But one of the things that I...


KAGAN: Maybe not after this hearing.


COBURN: No, I'm sure I'm older. 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?

KAGAN: How old was I 30 years ago?

COBURN: You were 20.

KAGAN: I'm not sure I have ever contemplated that exactly.

COBURN: Well, I want to tell you a lot of Americans have, and I certainly have. There's a marked change in this country from when I was 20 and 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.

Do you recall I asked you about the vegetable question yesterday. That's on the front of a lot of people's minds, not vegetables, health care. You know 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.

COBURN: And so my basic question comes back to you is, is that important, that the -- 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 in 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, that we understand the Constitution is the founding document.

You've testified many times. I have some problems with some of what you said, but that's the bedrock instrument under which we have.

But with a perceived loss of liberty, confidence is declining. And then 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. And 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 of 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 and 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 interpreting the Constitution was of any import.

So you've never contemplated any change in the freedom that you've experienced?

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 and -- that belongs to the members of -- 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. And that's what I've pledged to do and that's what I will do if I'm...

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. And 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, 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. And that's why I was so hard and insistent on original intent, because they're like me, they're not lawyers. They read the Constitution and they see the words and they're not sophisticated. They didn't go -- 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 -- 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 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.

KAGAN: Senator Coburn, I think that there are difficult cases that come to the court, no question.

COBURN: 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 two 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 to the court of law and 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 towards that it's 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 contract's 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.

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 are 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...

COBURN: I'm not asking you to do that. I'm just 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 and income.

And 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.

COBURN: It's my appeal for you to go back and look at the Federalist Papers and what are -- I -- 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, and the proof's in the pudding of where we are today. Let me move.

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 meet you another. I'll re- read the Federalist Papers.

COBURN: Thank you. I'd appreciate that.

KAGAN: It's a great document.

COBURN: America will appreciate that.

I want to go to you to the Second -- Second Amendment for a minute, if I can. One of the things that we found in -- in some of the papers as we looked, and you know we've 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 looked at some of them.

You -- you chose a phrase when talking about the Second Amendment that you were not sympathetic when discussing someone's claim that D.C.'s handgun ban violated their fundamental, pre-existing right to bear arms. And I have a very specific question for you. Do you believe it is a fundamental, pre-existing right to have an arm to defend yourself?

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.

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 -- he didn't say that was a constitutional right. He said that's a natural right. And what I'm asking you is do -- do you agree with that?

KAGAN: Senator Coburn, to be honest with you, I --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.

COBURN: So -- 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 they're ours, ours alone, and that the government doesn't give those to us?

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 pre-existing the Constitution and the laws, but my job as a justice is to enforce the Constitution and the laws.

COBURN: Well, I understand that. Well, 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?

KAGAN: Senator Coburn, I -- 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...

COBURN: I -- I would want you to always act on the basis of a belief of what our Declaration of Independence says.

KAGAN: I -- I think you should want me to act on the basis of law, and -- 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 haw, which is the Constitutions and the statutes of the United States.

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 in the Miller, does it?

KAGAN: I'm sorry?

COBURN: They don't necessarily take away the precedent of Miller.

KAGAN: As -- as 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.

COBURN: Right.

KAGAN: Heller distinguished Miller, involving a different kind of weapon.

COBURN: So -- but when you say...

LEAHY: The senator's time has expired.

COBURN: We are going to have another round?

LEAHY: Others have asked for it. I...

COBURN: I've got several more questions, Mr. 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 will be willing to give you another five minutes when your turn comes back.

Senator Klobuchar?

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 use of the administration for which I worked."

Do think that's a fair characterization of some of the work that you were doing when you were working for others in the administration?

KAGAN: I think that that is a fair characterization, Senator Klobuchar. And I think that most White House assistants would -- would sense the truth of that statement.

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 freer. 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 30 years ago was 1980, and in 1980 -- I just checked -- the top songs was Blondie, "Call Me"; Queen, "Another One Bites the Dust." I remember I was just starting to wear little bowties and things like that. And then I was thinking about were we really freer, if you were a woman in 1980.

Do you know, Solicitor General, how many women were on the U.S. Supreme Court in 1980?

KAGAN: Well, I -- I guess zero.

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?

KAGAN: It was very striking when Senator Feinstein said that she was one of two women. I thought, how amazing, how -- so how many?

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 United States Senate in 1980, 30 years ago?

KAGAN: I'm stumped again.

KLOBUCHAR: No women were in the United States Senate. There had been women in the Senate before, and then in 1981 Senator Kasselbaum 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 have the potential freedom to get these jobs, but there were things that were impeding them from advancing to her 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 that's 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 his 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 student, and we haven't had to admit any women."

But your speech also made some very serious points about the way there are still gender disparities in the legal professions. We all know that more and more women are -- 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, quote, "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 should you do about it? And what else do you think we should be doing about it?

KAGAN: Well, there still are these disparities, and it's -- it's interesting, because right now, you know, Harvard and all schools are about 50 percent women, you know. Sometimes it's 48 and sometimes it's 52. Some schools are actually a good deal more -- 55...

KLOBUCHAR: Well, and we know there's 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.

KAGAN: ... not just in -- in -- in these governmental institutions, but, you know, 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 -- are trying hard to make that diversity happen. I don't think it's a matter of -- of -- of bad faith in this regard. But -- but I do think that there are structural obstacles, that there are ways in which it's -- it's hard to balance work and family, 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's role -- is to -- to try to enable women and men, but I think that they especially strike women, to -- to manage those balances, the -- 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 -- 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 -- and one of the things that I did do there was to work on some of these issues, to work on -- on issues relating to childcare, for example, and to -- to -- to try to help women and men with these very difficult issues in -- in -- in how to have wonderful professional lives and also have wonderful family lives.

KLOBUCHAR: So do you think women are more free -- just to end this discussion that was sparked by Senator Coburn, go 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?

KAGAN: I think that there's no question that -- that women have greater opportunities now, although they could be made greater still.

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?

KAGAN: You know, I don't want to make too much of this. The numbers were, you know, basically stable. There was certainly no drop in the -- in the particular year in question. There was actually a slight uptick.

But it -- it -- 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 under done the auspices of the veterans organization just didn't make a difference.


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 student Robert Merrill, 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 the students pretty much treated him the same as other students, except for a few silly questions, 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 says, "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.

KAGAN: Thank you, Senator Klobuchar.

LEAHY: Thank you very much.

Senator Sessions, did you want more time?



LEAHY: I know Senator -- Senator Coburn has said he wants more time. Oh, I'm sorry. Senator Franken hasn't had his -- I'm sorry. We'll go to Senator Franken. Let's just see how many more -- want more time. Senator Coburn has already said he wants another five minutes. You want how many -- how much more time? You want more time?

Senator Hatch? May -- Senator Grassley, you want another five minutes? Senator Cornyn? OK. Senator Franken, let's -- let's get going, because we have the secure room available at 5 o'clock to do the closed -- to do the closed session.

Senator Franken?

FRANKEN: Thank you, Mr. Chairman, General Kagan.

I'm extremely concerned about the proposed merger between Comcast and NBC Universal. Media consolidation 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 the United States, the Associated Press, the Supreme Court found that the First Amendment supported aggressive antitrust enforcement.

Justice Black wrote -- this is a quote -- "The First Amendment, far from providing an argument against application of the Sherman Act, here provides powerful reasons to the contrary." He then continued, "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. They 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 -- 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?

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. And so that I want to steer well clear of...

FRANKEN: I'm not asking you about it specifically.

KAGAN: Yes, I mean, the -- the -- you know, the -- the -- the First Amendment does not provide a general defense, I think, to the antitrust laws. I'm not saying that in any particular case First Amendment principles might not be relevant, but in general, the antitrust laws are the antitrust laws, and they apply to all companies.

FRANKEN: OK. Let me talk about online.

KAGAN: Talk about...

FRANKEN: Speech that's online, over the Internet and over the airwaves or over cable.

FRANKEN: 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?

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.

FRANKEN: And would you agree that the First Amendment governs actions or behavior by the federal government?

KAGAN: Of course, the First Amendment governs actions and behaviors by the federal government as well as by the states.

FRANKEN: OK. So the First Amendment helps to promote diverse speech and it governs governmental action. 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?

KAGAN: Senator Franken, 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 I think I would defer to people who know a lot more about antitrust policy than I do on that. So that -- I guess that's what I'd say.

FRANKEN: OK. Thank you.

One last. A lot of people have been talking about judicial acumen. 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 want to -- I always want to help my friend, Senator Graham.



FRANKEN: You said there are -- 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.

And there are a lot of recent cases that we've been talking about that instinctively strike me and -- and a lot of other people as falling outside of these three guidelines. I think that these -- 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. It gave absolutely no deference to Congress's intent. And this is on the specific provision protecting all workers from mandatory arbitration.

And 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 the Legion case, the court struck down a century-old precedent. That's your third. That protected small business owners against vertical price- fixing.

So those are all three of your conditions. Ignoring Congress, the intent, ruling -- 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 senator -- my friend Senator Graham and that he -- they seemed to like.

Now, let me distinguish this from -- from Justice Thurgood Marshall. Justice Thurgood Marshall argued Brown v. Board of Education as you and Senator Graham discussed, correct?

KAGAN: Yes, he did.

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?

KAGAN: Well, Brown v. Board of Education is the kind of iconic case that doesn't belong on any list.

FRANKEN: Well, there's a reason that -- I mean, it is an exemplar of overturning a precedent that need to be overturned. Is that correct, would you say?

KAGAN: Yes, sir, Mr. Franken, yes.

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. And this is what I think Justice Marshall was talking about when he said that the court should show, quote, "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 just good constitutional law. Are you familiar with Carolene Products -- the Carolene Products case of 1938?

KAGAN: Yes, sir.

FRANKEN: Are you familiar with footnote four of that decision?


KAGAN: Yes, sir.

FRANKEN: And you're familiar with that because a 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?

KAGAN: It is.

FRANKEN: Can you tell me what that footnote says and why it's important?

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.

FRANKEN: You're a mind-reader. Footnote four basically says that when courts interpret the Constitution and try to figure out whether a law complies with the Constitution, court should give special scrutiny to laws that violate a specific part of the Constitution, that restrict the political process and that affect, quote, "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?

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 including -- 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.

FRANKEN: So Justice Marshall's belief that was criticized in the opening statements is really very consistent with established constitutional law, isn't it?

KAGAN: Well, Senator Franken, I will say that when I wrote those words, I was not speaking of footnote four on the Carolene Products. I was speaking instead 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.

FRANK: So I'd like to leave you with this thought, General Kagen. 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 we need to be aware of that and to remember that.

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.

FRANKEN: And of mine. Thank you.

LEAHY: Thank you, Senator Franken.

I'm going to yield to Senator Sessions, but I've always told this -- Senator Klobuchar wanted to correct one...

KLOBUCHAR: Yes, we have learned from many e-mails to our office that in fact in 1980, Solicitor General Kagan, Nancy Kassebaum was already serving in the Senate. 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. I wanted to make that -- and I assume it doesn't change any of your answers.

KAGAN: Isn't e-mail a wonderful thing? You can learn you're wrong right away.


KLOBUCHAR: It is nice, thank you.

LEAHY: Trust me. I do.


Personally, as some of the one that have come in (inaudible).

Senator Specter, you just wanted to put a letter into...


SPECTER: Yes, Mr. Chairman. Following Senator Franken's questioning, I asked 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.

LEAHY: Without objection, so ordered.

SPECTER: I thank the chair.

LEAHY: We will go to Senator Sessions and then to Senator Hatch, and (inaudible) Senator -- let's see, who else? -- Senator Graham, did you want more? And then Senator Coburn, you want more?

Senator Sessions?

SESSIONS: We're doing our best to be cooperative.

LEAHY: I've, too, withheld my -- most of my time for my second round

SESSIONS: You are very generous. While we would normally be going into tomorrow for these hearings, because of extraordinary events of the week, Mr. Chairman, I'm glad to work with you to try to finish up tonight, and we'll do our best to do that.

LEAHY: I would note again for the record, Senator Sessions has been extraordinarily cooperative in trying to do that,

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 serves as long as Justice Stevens -- What, 30? -- Justice Stevens, 34 years, 38 years on the bench. And we wish you a productive service, if that occurs.

I would say as 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 rights to the poor and the rich, without respect to persons under the Constitution and laws of the United States.

And I guess I would add a question, and ask you a question that one columnist I saw, a professor said: Would you do so without any mental reservation or purpose of evasion?

KAGAN: Senator Sessions, I agree with you that that's exactly what I should be doing if I'm fortunate enough to be confirmed, and I would do so without any mental reservation or purpose of evasion. It feels a little bit odd to be taking what seems like that oath at this table.

SESSIONS: A bit early, but it's not an exact copy. You talked about Miguel Estrada. I so admired him and still do, and I think without 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?

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 decisionmaking. And I think that that's absolutely right. And it's one of the reasons why I haven't wanted to talk about any internal deliberations that have occurred within the office, and I certainly think that it's the -- it was the right view then that those documents from with the office should not have been produced.

SESSIONS: Well -- and you 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 in an unusual case.

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 -- if documents had the potential to be made public generally in that way.

SESSIONS: Thank you.

In the United States Code 983, the Solomon amendment, I believe the last of the four amendments that we passed to try to make sure our law schools couldn't continue to get around it some way and find a loophole, says this -- that the military must be given access, quote, "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?

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.

SESSIONS: I don't think that answered the question.

SESSIONS: I do not think there's any doubt that they were -- 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 remained troubled that we can't seem to get in sync on that issue. It's 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," close quote.

I believe an activist -- and I think I'm quoting Senator Hatch, although he wouldn't give me credit for it -- he wouldn't 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're rushing me, Mr. Chairman.

LEAHY: Not rushing you.

SESSIONS: You keep breaking my little chain of thought. It's so easy. My brain is -- is weak. But Justice...

LEAHY: Probably it's the third or fourth...


SESSIONS: ... Marshall -- well, I guess that Solicitor General Marshall and -- and -- and the courts who ruled on -- 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, that when you said a child can only go to this school because -- couldn't go to this school because of the color of the 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's not activism to reverse a bad decision. And -- and the courts should do that, and the courts who fail to set aside bad decisions that are not in harmony with the law are failing in their responsibilities.

And, Mr. Chairman, one more -- because I didn't 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 -- is there a requirement at Harvard in any year that they take constitutional law?

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.

SESSIONS: But international law was required recently, a course in international law was required recently?

KAGAN: When we -- when we reviewed our first-year curriculum, we determined really, because the constitutional law professors at 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, that 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 and, of 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 aren't requirements, but the vast majority of students take a very great deal of constitutional law.

SESSIONS: Well, I think that yesterday you indicated that the court could consider foreign court opinions as they could, quote, "learn about how other people might approach," close quote, and think about approaching legal issues.

And you said, "Well, I guess I'm 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.

The -- I guess I want to ask you, there's 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, quote, "the experience of other advanced democracies," close quote, regarding their gun restrictions.

We've got a constitutional amendment that says you have the right to keep and arms. He wants to consider the experience of other advanced countries.


SESSIONS: All right. And now this is my last question.

And -- and -- and 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 -- 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," close quote. In other words, he was saying, he thought this was a very unwise policy.

So I guess you -- I would ask you, whose side are you come down -- do you come down on, Justice Scalia's or Justice Stevens'?

KAGAN: Well, Senator Sessions, I haven't read the McDonald case, so I haven't read what either Justice Scalia or Justice Stevens has to say about that question. It's -- it's -- it's interesting that you say this, ask this with respect to the Second Amendment, because I think that I was asked about this question during my S.G. confirmation, was give an written question about whether I thought that the use of foreign law was appropriate in the context of the Second Amendment.

And I -- I -- I hope I'm 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 -- that, you know -- that -- that foreign law didn't have any relevance.

So I hope I'm paraphrasing that accurately, but I know I wrote about it to the Senate previously.

SESSIONS: Thank you, Mr. Chairman.

LEAHY: Thank you.

I will also put on the record -- you'd mentioned solicitors general. We have a letter directed to Senator Sessions and myself signed by solicitors general in the administrations of President Ronald Reagan, George H.W. Bush, William Clinton, and George W. Bush, all supporting you, Ms. Kagan, to be on the Supreme Court. It's signed by Charles Fried, Kenneth Starr, Drew Days, Walter Dellinger, Seth Waxman, Ted Olson, Paul Clement, Gregory Garre, all supportive. And I'll put that in the record.

And, Senator Grassley, you're recognized.

GRASSLEY: Yes. If you answer the question short, I won't need the 13 minutes and 10 seconds that Senator Sessions just took.


KAGAN: You were counting, huh?

GRASSLEY: OK. Here's where we are. I want to make one statement, because I didn't want you to have the last word on Baker and settled law. So I'd make this clarification, and you don't need to comment.

My question on precedential value of Baker was whether Baker is binding and settled law on lower courts until the Supreme Court revisits the issue. The Supreme Court has stated, quote, "Lower courts are bound by summary decisions by this court until such time as the court informs them," in parentheses, "that they," in parentheses, "are not," end of quote.

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.

KAGAN: Senator Grassley, may I?

GRASSLEY: You may.

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's not an area that I've studied in any depth, and I look forward to being further informed about it.

GRASSLEY: OK, thank you. I want to go to the fact, in 1996, Congress passed and President Clinton signed into law the Defense of Marriage Act. That law defines marriage for purposes of federal law as between one man and one woman and also provides that no state or territory shall be required to give effect to another state that recognizes same-sex marriages.

GRASSLEY: 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 conflict between the laws of states?

KAGAN: Senator Grassley, I do think that that's an issue that might come before the court, the constitutionality of DOMA, so it would not be appropriate for me to comment on it.

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 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?

KAGAN: Senator Grassley, this was not a case in which I was the decision-maker. It was a case in district court, and the solicitor general's decision-making responsibilities take over in the appellate, 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 can't 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.

GRASSLEY: Do you believe that it was necessary to note in the reply memorandum that, quote, "Administration does not support DOMA as a matter of policy, believes that it is discriminatory and supports its repeal," end of quote?

Do you believe such language is consistent with your promise to vigorously defend the statutes of our country?

KAGAN: Senator Grassley, I'm -- I'm -- I'm reticent to talk about particular decisions made with respect to that brief, not only because I was not the decision-maker on that brief, but because the Department of Justice is currently litigating those cases, and I don't want to do anything that interferes or undermines or, you know, in any way gets in the way of the defense that the Department of Justice is making on those cases.

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?

KAGAN: Senator Grassley, I do believe that the Department of Justice is vigorously defending DOMA in that case and in other cases.

GRASSLEY: OK. On another matter, in Griswold, Justice William Douglas stated...

LEAHY: Excuse me. How much more time would the senator like?

GRASSLEY: I want less than what Senator Sessions has.

LEAHY: Well, Senator Sessions, of course, the ranking member by tradition...


GRASSLEY: Oh, well, then, can I -- can I have two more minutes?

SESSIONS: Mr. Chairman, I think he can have more...


LEAHY: ... two more minutes, I want to give it to him. But I just want to know just because we have to plan for the...

GRASSLEY: This will be the last...


SESSIONS: And we could be so pleased that he can be ranking member next year.


You should be nice...


LEAHY: I would miss you so much. I don't know if I could handle that.

Go ahead, Senator Grassley.

GRASSLEY: Don't worry.

LEAHY: Never mind. Just go to the (inaudible)

GRASSLEY: Why should I -- 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, quote/unquote, "reading between the lines"? Is it appropriate for a judge to go searching for penumbras and emanations in the Constitution?

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.

GRASSLEY: Well, then I think from your answer, which I like, is that you do not -- you would not say that there's a lot of other rights that are implicitly written into the Constitution, then?

KAGAN: I do believe that rights need a textual basis in the Constitution and they might have that basis in general clauses, but there is -- there needs to be a textual basis in the Constitution for any right.

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 way to make law through the 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're confirmed, will you try to find a creative way to make policy from the bench based upon penumbras or Souter's vacuums?

KAGAN: Senator Grassley, I've 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 precedents relating to the Constitution, and that's what I would do in any case.

It's law all the way down, I think is what I said yesterday, and that's what I believe. It's not personal views. It's not moral views. It's not political views. It's law all the way down.

GRASSLEY: I gave you an opportunity to sum up two days of what you've been trying to tell us. Thank you. And I was five minutes short of where (inaudible).

LEAHY: (inaudible) I found when the Republican were in control and I was ranking member, they always gave me a little bit extra, and Senator Sessions has never been cut off by me.

Senator Graham, did you have anything?

Senator Coburn, how much time would you like?

COBURN: Less than 10 minutes.

LEAHY: You're recognized. Go ahead.

COBURN: Thank you.


LEAHY: And then -- and then at that point, just so people know on the schedule, when Senator Coburn finishes, I know you have a short ending statement I think you want to make. I will, too. We will break for about 15 minutes and then reconvene in the -- regular (ph) room, right? -- the regular (ph) room, which has been secured by the people who do that for the...


I've only been here for 36 years. I'm still learning my way around.

Senator Coburn, go ahead.

COBURN: Thank you, Mr. Chairman.

And, again, thank you for your testimony and your answers to our question. 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 best.

KAGAN: Senator Coburn, I want to say that I think it's been terrific, that 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.

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 what your feelings were on whether or not that test supersedes original intent.

KAGAN: Well, Senator Coburn, I think this goes back to the -- some of the discussion that we were having yesterday. And as I understand the court's commerce clause law, that test is the governing test, which is entitled to the weight that precedent usually has.

KAGAN: And that means that it's not enough to say that the -- the decisions are wrong. And -- 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 -- or some other reason why people might think that decisions are wrong.

The point of precedent is -- is to constrain judges. 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. And I think that -- and the point of precedent is to provide stability and reliability in the law.

And I think that those values govern, even though somebody might come in and say a decision is wrong. And that's true if the person said the decision is wrong, because it violates the text or it violates the history, the original history, or it violates anything else, that there -- that there is a -- there -- there needs to be a kind of high bar for reversing precedent.

COBURN: All right. But that does not preclude that precedent can be reversed.

KAGAN: It -- it can be reversed. And we've talked to various -- on various occasions about when it can be reversed, and in particular that if there is -- if the precedent is unworkable or if the precedent's doctrinal support has eroded or if the president no -- or if the precedent no longer fits the actual factual and empirical circumstances that exist in the country. There are occasions on which precedent can be reversed.

COBURN: Let me go on to another section, if I might -- the coercion test that you discussed. Do you find it ironic that the -- the coercion test applied to graduating seniors from high school, who are old enough to go and die for this country, but the coercion test says they're not old enough to make a decision about what's something they hear? Is that ironic to you?

KAGAN: Senator Coburn, I've -- I've tried hard not to characterize particular decisions, not to degrade them, not to give them a thumbs up or thumbs down.

COBURN: You would admit there is some irony in that, though.

KAGAN: Senator Coburn, when I talked about this with -- I forgot who I talked about it with...

COBURN: I do, too. I forgot who you talked to about it as well.

KAGAN: I did -- I did talk about how one of -- one of the, I think -- an attribute of the coercion test is that deep, you know, four different people can look at a practice and have four different views as to whether coercion has in fact taken place. I think -- I think everybody would say that adults are different than children.

I think the question of, you know, sort of who counts as a child and two counts as an adult is one of those matters that -- 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 course of activity.

COBURN: Thank you. And my -- 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?

KAGAN: There was not.

COBURN: Thank you. And final question, it's 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.

KAGAN: That might only dealings with ACOG were about talking with them about how to ensure that their statement expressed their views. I was a, you know, a staffer with no medical knowledge. I would not have presumed to, nor would ACOG have thought it was relevant for me to.

COBURN: But -- but there -- but you worked hard, or at least you acknowledge being part of the people who developed the four options for President Clinton.

KAGAN: Yes, I -- I definitely participated in discussion of this issue.

COBURN: And you referenced that that was "our memo," correct, in other memos to the president?

KAGAN: Yes, I mean, I -- I definitely participated as an aide in trying to implement the president's views on this issue.

COBURN: And you were concerned with their original language. That is true.

KAGAN: I -- I was...

COBURN: ACOG's original language you were concerned with. It was problematic.

KAGAN: I was concerned that that language did not adequate -- did not accurately reflect what ACOG's views were and what they have expressed to us about their views.

COBURN: Yes, their original language, having somebody -- being somebody that's delivered thousands of they be -- where it was absolutely accurate. Their second language was not accurate. And 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 it was said in the paper today, you kind of light up the room. I agree with that. Congratulations on your nomination.

KAGAN: Thank you so much, Senator Coburn.

LEAHY: Thank you.

COBURN: And that's three minutes early, Mr. Chairman.

LEAHY: That's what?

COBURN: Three minutes early.

LEAHY: God bless you. I will -- I will put it on the -- I will it on your positive ledger.

COBURN: I know the -- I know the chairman remembers when he was a lowly, low-ranking member of the Judiciary Committee some 35 years ago.

LEAHY: I have so many stories I'm not going to do with the television, but I'll tell you a couple of them afterward. But I'll put the extra three minutes in your ledger, which was...

COBURN: Thank you.

LEAHY: ... kind of empty, but now it's very full.

Senator Sessions, you wanted to make a -- a short closing, I understand.

SESSIONS: Well, I -- I would be pleased to. First, I would offer a number of letters for the record from a Colonel Gonzalo Vergara, who would oppose the nomination, Judicial Action Group, the National Right to Life Committee, Military Families United, (inaudible) Council, Southern Baptist Ethics and Religious Liberty Commission, American Association of Christian Schools, and Center for Military Readiness, who have expressed opposition to the nominee.

You know, we talked about a lot of important issues today -- the interstate commerce issue -- several of our committee members asked about it; Lopez, Morrison, a five to four decision; foreign law -- it's a raging 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. And we've had raging debates in our conference over that.

I think this nominee out of private life wrote a very intemperate letter about some of those issues that causes me concern -- the ownership of firearms. We've had two seminal cases, five to four, that had it been one vote switched, it would have been five to four, completely eviscerating the right to keep and bear arms, allowing any city or any county in America, any state to completely deny the people the right to keep and bear arms.

People are worried about that. Senator Coburn has been -- some of the things he's saying...

Tom, I'm hearing as I go around my state, people are concerned and asking the question is there any limit on what you do in Washington? Does anybody care? We do. We're tired of this. We're worried about this. And I think their worries are legitimate. I don't think it's extreme.

We talked about activism. Just as Barack says, you know, you give just the words -- the words don't change, but you give them you meaning that seats -- suits new social needs.

Well, I know you said he's your hero. I'm sure you are correct that you know not all of his philosophy, 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. And I'm not going to vote for a judge I do not believe is committed to that.

And I'm worried about the idea of legal progressivism. I think that's a pernicious philosophy. A liberal ideal has always had -- I've had -- now, I do admire the liberal ideal if the American tradition, but this progressive movement I think is particularly hostile to same law. And I'm not pleased with it.

And the president, I think, as Mr. Clain (ph) said, is a legal progressive -- or Mr. Greg Craig, his counsels, have said, and indicate that you are, Ms. Kagan. So I worry about that.

And just -- I would just say with regard to the discussion about Harvard and the military, I am concerned about the way you've 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 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.

And so our nominee is a person of skill and intelligence, who has a diverse background. I do think that this Senate hat a very serious responsibility at this time, when 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.

And some of the things you've said today have indicated that. But a combination of record and statements leaves 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 the Supreme Court of the United States.

Thank you, Mr. 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 the Senate Judiciary Committee. Some of us have probably enjoyed it more than you have. But I have appreciated your -- not only your intellect, but your good humor throughout.

SESSIONS: I agree.

LEAHY: I said to somebody -- so we do agree on something.



LEAHY: I said to somebody earlier today, mentioned that I've been here throughout all of the hearings. I said it was like going back to my favorite courses in law school. You patiently listen to our statements. You've answered our questions over the last three days.

Yesterday you testified 10 hours. Today you've been here since 9:00 this morning. Each senator, both sides, participated in a 30- minute opening round. Some took the opportunity for another 20-minute round. Some have gone beyond that, over an hour.

And, of course, I would mention for the public watching, this is in addition to our other interactions with you, all of us, that we do privately, you have -- I know speaking from my views, when I met with you, you answered openly and candidly every single question I asked.

I appreciate that you've engaged with the senators. You've answered their questions more fully than many recent nominees. Some senators on both sides of the aisle have liked and agreed with some of your answers, they've differed with others. That, based on my experience, is not unusual in hearings.

Based on my review of your record and now your answers, this week I expect that you and I will 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 these three, each were nominated by a Republican president. I voted for each of them. I've 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 (INAUDIBLE) encyclopedic knowledge of the law, and we can see why so many of your students, and many of whom I've 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 law, to judging. You consistently spoke of judicial restraint, and your respect to our democratic institutions, your commitment to the Constitution, the rule of law.

You demonstrated a traditional view about deference to Congress in 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 Web site.

Now, I believe the country needs and deserves a Supreme Court that bases its decision on the law and the Constitution, not politics or an 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. And I respect your pledge, and I take so seriously what you pledged 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 recessed.



Jun 30, 2010 18:20 ET .EOF

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