Thursday, July 1, 2010;
SENATE COMMITTEE ON THE JUDICIARY HOLDS A HEARING ON
THE NOMINATION OF ELENA KAGAN TO THE SUPREME COURT
JUNE 28, 2010
SEN. PATRICK J. LEAHY, D-VT. CHAIRMAN
SEN. HERB KOHL, D-WIS.
SEN. DIANNE FEINSTEIN, D-CALIF.
SEN. RUSS FEINGOLD, D-WIS.
SEN. CHARLES E. SCHUMER, D-N.Y.
SEN. RICHARD J. DURBIN, D-ILL.
SEN. SHELDON WHITEHOUSE, D-R.I.
SEN. BENJAMIN L. CARDIN, D-MD.
SEN. AMY KLOBUCHAR, D-MINN.
SEN. EDWARD E. "TED" KAUFMAN, D-DEL.
SEN. ARLEN SPECTER, D-PA.
SEN. AL FRANKEN, D-MINN.
SEN. JEFF SESSIONS, R-ALA. RANKING MEMBER
SEN. ORRIN G. HATCH, R-UTAH
SEN. CHARLES E. GRASSLEY, R-IOWA
SEN. JON KYL, R-ARIZ.
SEN. LINDSEY GRAHAM, R-S.C.
SEN. JOHN CORNYN, R-TEXAS
SEN. TOM COBURN, R-OKLA.
SEN. JOHN KERRY, D-MASS.
SEN. SCOTT BROWN, R-MASS.
NOMINATED TO THE SUPREME COURT
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.
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.
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.
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.
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.
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.
LEAHY: Thank you very much.
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.
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.
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.
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.
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.
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.
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.
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.
Jun 28, 2010 16:37 ET .EOF