Elena Kagan's confirmation hearing begins

The Senate Judiciary Committee continues confirmation hearings for Kagan, who pledged in prepared remarks to support judicial restraint and a "modest" role for the high court.

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Tom Goldstein
Attorney and co-founder of SCOTUSBlog
Monday, June 28, 2010; 3:00 PM

Tom Goldstein, a partner in the law firm of Akin and Gump and a co-founder of SCOTUSblog, was online Monday, June 28 at 3 p.m. ET to discuss the opening day of Supreme Court nominee Elena Kagan's Senate confirmation hearing.

A transcript follows.

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Tom Goldstein: Hi everyone from the Committee Hearing Room. We're ahead of schedule, which as Senator Leahy says, is basically unheard of. Sheldon Whitehouse is giving his opening statement -- he was the strongest liberal voice in the Sotomayor hearings.

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Tom Goldstein: Hi everyone. Great to be here. Looking forward to answering your questions. We'll be starting during a break in the Committee proceedings.

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Harrisburg, Pa.: Has there been any Republican Senator who has stated an intention to vote for confirming Elena Kagan as a Supreme Court Justice? Has there been any Democratic Senator who has stated an intention to vote against confirming her?

Tom Goldstein: Not yet, and it's shaping up on largely partisan lines, I think. The only Republican who has seemed to break ranks at all with the opposition is Lindsay Graham. And no Democrat has suggested s/he might defect.

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Laurel: When was the last time a Senate of the President's party rejected a Supreme Court nominee?

Tom Goldstein: A single Republican Senator voted against Sam Alito. That's the last one in 5 nominations, at least.

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East Lansing, Mich.: Isn't the lesson of Elena Kagan and other recent nominations that if you have any ambition to be on the SCOTUS, you have to keep any and all views private? I mean that's somewhat sad, right?

Tom Goldstein: John Roberts and Elena Kagan certainly didn't have long public records, and their confirmation processes seem to have gone very smoothly. On the other hand, Alito and Sotomayor had long judicial records. So there are multipl routes, I think. If lawyers or judges clam up in hopes of getting nominated, that will be very sad, I agree.

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New Haven, Conn.: Just a quick question.

What is the correct term? A Supreme Court case or a Supreme Court decision or a Supreme Court ruling or a Supreme Court verdict?

What's the difference?

Tom Goldstein: The case is the dispute, the decision is the ruling, and the other terms we don't really use. But all that matters is really that people get your point, and any of those will do.

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Athens, Ga.: Given away my political leanings, but I saw you on "The Rachel Maddow Show" and you were a great guest. Hope you'd enjoyed your interview with Rachel Maddow and really hope her bookers invite you back.

I was just curious about something. Even during the 2008 presidential election, most of the justices expect to retire are part of the so-called liberal wing. Can we expect any of the justices on the conservative wing to retire before 2016?

I called them the "so-called liberal wing" not to say they aren't liberal but because I think folks over-simply a justice as simply being "conservative" or "liberal" as if there is not grey area or overlap.

Tom Goldstein: Thanks very much. Putting to the side how liberal or conservative the justices are, there is a general tendency for Justices to retire under a President who would appoint someone with a similar philosophy, which isn't surprising. So the conservatives won't go anywhere if President Obama could appoint their successors.

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Bedford, NH: With only 3 justices joining Justice Alito on that part of the opinion in McDonald that incorporates the 2nd Amendment through the Due Process clause of the 14th Amendment, do you think that leaves to door open to more restrictive gun control in states/municipalities than would be allowed under Heller?

Tom Goldstein: I don't think so. Justice Thomas's separate opinion agrees on the result. We don't really know how much the Second Amendment restricts gun regulation.

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Washington, DC: I can't really imagine Elena having a hard time with the committee, since she's too smart to take her own advice and actually answer. Liked RB Ginsburg's approach, if it's before or likely before the court, can't answer and already decided by the court, need not answer. Sorry about Martin.

Tom Goldstein: The nominees who have made it to the committe for a long time have been very smart, I agree. None of had trouble with the Senators that I can realy recall.

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Providence, R.I.: I just have to say something about Sen. Sheldon Whitehouse

I've been involved in liberal causes for some time in Rhode Island. Right now I'm working on the congressional campaign for state Rep. David Segal.

At first, many in the liberal political community in Rhode Island were unsure about him, but not only is a strong liberal, he's actually a suprising effect Senator.

Who knows? Maybe Elena Kagan's liberal naysayers will be happily suprised like I was with Sheldon Whitehouse.

Tom Goldstein: I certainly think that he was the leader of the left in the Sotomayor hearings -- a hero to liberals in those proceedings. And I'd be shocked if he didn't try to do the same thing in the Kagan hearings.

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Eugene, Ore.: In no way, shape or form to I wish ill on Chief Justice John G. Roberts, Jr. but if he were to retire after the end of the Obama administration and there was a Democratic President, could you picture Barack Obama being nominated to as Chief Justice?

Correct me here if I'm wrong, but wasn't President William Howard Taft as Chief Justice of the Supreme Court?

Tom Goldstein: It's technically possible, of course. And Taft is an example. Taft wanted to be Chief Justice more than President. But as with Hillary Clinton, I don't think that's Obama's destiny -- his strength isn't being isolated in a judicial chambers.

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Tom Goldstein: Amy Klobuchar is up now. I find her very impressive. If it weren't for the fact that a Republican Governor would appoint her successor, I think President Obama would have seriously considered her as a nominee.

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Arlington, VA: Is the issue of Kagan's praise for an Israeli judge whose last name is Barak really a major issue for anyone other than a person who would vote against her anyway? I would presume that her praise was similar to blurbs for a new book without much content.

Tom Goldstein: My impression is that as Dean, Kagan generally offered sweeping praise for important people who came as guests to the law school. I'm not aware of any other time she said anything about Barak, so I think you can't take literally the idea that he is her "hero." That said, Kagan was a law clerk to two very liberal judges and worked for Democratic Administrations, so there isn't a real question which way she leans.

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Orono, Maine: Hypothetical situation: Elena Kagan wasn't nominated and only a politician could be nominated by Barack Obama.

Who would you put at the top of the list?

Tom Goldstein: No question -- Janet Napolitano. If it weren't for the Christmas Day bomber, which put a focus on th need for leadership of Homeland Security, I think she might well have gotten it.

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Minneapolis, MN: What qualities and specific legal expertise do you think she brings to the court that is relevant for the future?

Tom Goldstein: Kagan's strengths are that she's very smart and hardworking and objective (kind of the basics for the job), and her unique strength is probably being able to find common ground between people. That's probably the left's best hope that she will make a difference up there. Because she hasn't been a judge there are a lot of open questions about her precisely approach to the law, but she has the core skills.

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Washington, D.C.: Elena Kagan is still depicted as the country's Solicitor General on the DOJ's website. She presumably hasn't resigned, but is she still being paid her SG salary even though she stopped doing the work of the office? Was there ever a time when Sotomayor wasn't paid her judge's salary when her nomination was pending?

Tom Goldstein: That's right. She nominally holds the job -- just like then-judges Sotomayor, Alito, and Roberts -- were nominally appellate judges while getting ready for their hearings. None were actually working on cases. But they kept their salaries. They don't formally resign because that's presumptuous -- it assumes they will be confirmed.

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Rockville Centre, NY: Assume you are a member of the Supreme Court and a provision of the Constitution conflicts with your view of how the world should work, would the proper resolution of the conflict be a) amend the Constitution or b) interpret the offending provision out of existence?

Tom Goldstein: The way the question is framed kind of answers itself. The Constitution and the statutes Congress enacts are the laws. Judges should be pleased to uphold and apply those provisions in a way that conflicts with their personal preferences -- that's the job. There is too little of that, unfortunately. Though I personally lean left, I personally think that the most principled Justice in that respect is Justice Scalia. Second is Justice Thomas.

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Sen Franken: What's your take on Franken, especially his (to me) thrilling speech at ACS, rebutting Republican judicial talking points?

Tom Goldstein: I was very impressed with Sen. Franken at the beginning of the Sotomayor hearings -- he had just arrived at the Senate, and he was both substantive and funny. I thought he went downhill a little bit during the proceedings, but still pretty good.

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Oxford, MS: Will anyone ask Kagan about Free Enterprise Fund? She argued it and has written in the field, and given those views one might wonder if she would apply it as energetically as others on the Court would.

Tom Goldstein: It's a good question that illustrates the broader point that Kagan is in the tough position of getting up to speed on big cases the Court decided today and last Thursday. I expect Democrats will use that decision to criticize the Court's conservatives as activist.

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Washington DC: Who do you see as likely successors to SG Kagan assuming her confirmation to the Court ?

Tom Goldstein: The two most likely are the current Acting Solicitor General (Neal Katyal) and a lawyer in the White House Counsel's Office (Don Verrilli). But another candidate could emerge.

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Berkeley, Calif.: Do you think Goodwin Liu really is being placed on the Federal bench so he can build his resume as a potential SCOTUS nominee later on or is that just hype by his opponents to make him even more scary to those on the right?

What's your take of the "fight" over Goodwin Liu overall?

Tom Goldstein: I don't see this President picking the fight that would come with nominating Goodwin Liu. In general, I think it's the Administration's nod to the left. Liu has been caricatured by conservatives, but he's still quite liberal. I have my doubts that the Administration will really invest itself deeply in getting him confirmed.

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Sen. Sessions' remarks: Was I the only one noticing that Sen. Sessions wants a justice with restraint on overturning laws, while also wanting someone who will overturn laws that Sen. Sessions doesn't like? To copy Chief Justice Roberts, which one are the "balls" and which are the "strikes"?

Tom Goldstein: I think that "activism" for both the left and right is truthfully just "making decisions with which I disagree." Both liberal and conservative Justices strike down laws under the Constitution, and have precedents that they would overturn. Activism isn't a principled term.

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Tuscaloosa, Ala.: I know Barack Obama specifically pointed out that he wouldn't have appointed Clarence Thomas due to his lack of intellectual heft.

I've got to wonder if that created bad blood. I mean Justice Thomas' wife created her own "Tea Party" group and Justice Thomas is responsible for Donofrio v. Wells getting into the news cycle.

Tom Goldstein: You can certainly disagree with Justice Thomas's view of the law -- which is the most radical among the Court -- but the idea that he isn't smart enough for the job is crazy. I don't agree with his judicial philosophy, but he's a very smart and thoughtful justices.

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Tom Goldstein: Ok everyone. Thanks so much for stopping by. Nice of you to make the time. I'm headed back over to cover the hearings.

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