S. HRG. 111–1044 

THE NOMINATION OF ELENA KAGAN TO BE 

AN ASSOCIATE JUSTICE OF THE SUPREME 

COURT OF THE UNITED STATES 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

JUNE 28–30 and JULY 1, 2010 

Serial No. J–111–98 

Printed for the use of the Committee on the Judiciary 

( 

THE NOMINATION OF ELENA KAGAN TO BE AN ASSOCIATE JUSTICE OF 

THE SUPREME COURT OF THE UNITED STATES 

U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

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67–622 PDF 2010

S. HRG. 111–1044 

THE NOMINATION OF ELENA KAGAN TO BE 

AN ASSOCIATE JUSTICE OF THE SUPREME 

COURT OF THE UNITED STATES 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

JUNE 28–30, and JULY 1, 2010 

Serial No. J–111–98 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

PATRICK J. LEAHY, Vermont, Chairman 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

ARLEN SPECTER, Pennsylvania 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

EDWARD E. KAUFMAN, Delaware 

AL FRANKEN, Minnesota 

JEFF SESSIONS, Alabama 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

BRIAN A. BENZCOWSKI, Republican Staff Director 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Cardin, Hon. Benjamin L., a U.S. Senator from the State of Maryland ............. 35 

prepared statement .......................................................................................... 690 

Coburn, Hon. Tom, a U.S. Senator from the State of Okahoma ......................... 34 

Cornyn, Hon. John a U.S. Senator from the State of Texas ................................ 28 

Durbin, Hon. Richard J., a U.S. Senator from the State of Illinois .................... 31 

prepared statement .......................................................................................... 705 

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 15 

Feinstein, Hon. Dianne, a U.S. Senator from the State of California ................. 11 

Franken, Hon. Al, a U.S. Senator from the State of Minnesota .......................... 48 

prepared statement .......................................................................................... 712 

Graham, Lindsey, a U.S. Senator from the State of South Carolina .................. 23 

Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa ..................... 13 

prepared statement .......................................................................................... 758 

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 9 

Kaufman, Hon. Edward E., a U.S. Senator from the State of Delaware ............ 45 

prepared statement .......................................................................................... 815 

Klobuchar, Hon. Amy, a U.S. Senator from the State of Minnesota ................... 41 

prepared statement .......................................................................................... 832 

Kohl, Hon. Herb, a U.S. Senator from the State of Wisconsin ............................ 7 

prepared statement .......................................................................................... 836 

Kyl, Hon. Jon, a U.S. Senator from the State of Arizona .................................... 18 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont 

June 28, 2010 .................................................................................................... 1 

June 29, 2010 .................................................................................................... 59 

prepared statement .......................................................................................... 891 

Schumer, Hon. Charles E., a U.S. Senator from the State of New York ............ 25 

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 4 

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 21 

June 15, 2010, letter and attachment ............................................................. 1067 

Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode Island ...... 39 

prepared statement .......................................................................................... 1125 

PRESENTERS 

Brown, Hon. Scott, a U.S. Senator from the State of Massachusetts Presenting Elena Kagan, Nominee to be Soliitor General, Department Justice .. 53 

Kerry, Hon. John, a U.S. Senator from the State of Massachusetts Presenting 

Elena Kagan, Nominee to be Soliitor General, Department Justice ............... 51 

WITNESSES 

Alt, Robert, Senior Fellow and Deputy Director, Center for Legal and Judicial 

Studies, The Heritage Foundation, Washington, DC ........................................ 338 

Askew, Kim J., Chair, American Bar Association, Standing Committee on 

the Federal Judiciary, Washington, DC ............................................................. 353 

Clark, Robert C., Professor and former Dean, Harvard Law School, Cambridge, Massachusetts .......................................................................................... 333 

Duffly, Fernande ‘‘Nan’’, Associate Justice, Massachusetts Court of Appeals, 

on behalf of the National Association of Women Judges .................................. 358 

Garre, Gregory G., Partner, Latham & Watkins LLP, Washington, DC ............ 335 

Gibbins, Jennifer, Soundkeeper/Executive Director, Prince Wiliam 

Soundkeeper, Cordova, Alaska ............................................................................ 309 

Page

IV 

Goldsmith, Jack, Henry L. Shattuck Professor, Harvard Law School, Cambridge, Massachusetts .......................................................................................... 329 

Greenberger, Marcia D., Co-President, National Women’s Law Center, Washington, DC ............................................................................................................. 356 

Gross, Jack, Plaintiff, Gross v. FBL Fiancial Service Inc., Mt. Ayr, Iowa .......... 307 

Hegseth, Peter B., Executive Director, Vets for Freedom, Army National 

Guard, Washington, DC ...................................................................................... 314 

Kirsanow, Peter N., Commissioner, Benesch Law Firm, Cleveland, Ohio ......... 364 

Kopel, David B., Research Director, Independence Institute, Golden, Colorado 366 

Ledbetter, Lily, Plaintiff, Ledbetter v. Goodyear Tire ........................................... 306 

Moe, Thomas N., Colonel, USAF (retired) ............................................................. 316 

Olson, William J., William J. Olson, P.C., Vienna, Virginia ................................ 368 

Perkins, Tony, president, Family Research Council, Washington, DC ............... 362 

Presser, Stephen B., Raoul Berger, Professor of Legal History, Northwestern 

University School of Law, Chicago, Illinois ....................................................... 342 

Rotunda, Ronald D., Professor, The Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, Chapman Uniesity School of Law, Orange, California .................................................................................................... 336 

Sullivan, Ronald S., Jr., Edward R. Johston Lecturer on Law, Director of 

the Criminal Justice Institute, Harvard Law School, Cambridge, Massachusetts ....................................................................................................................... 355 

Whelan, Edward, President, Ethics and Public Policy Center ............................ 340 

White, Kurt, Captain, President, Harvard Law Armed Forces Association, 

Army National Guard .......................................................................................... 331 

Yoest, Charmaine, President and CEO, Americans United for Life, Washington, DC ............................................................................................................. 360 

YoungBlood, Flagg, Captain, United States Army (retired) ................................ 312 

STATEMENT OF THE NOMINEES 

Kagan, Elena, Nominee to be Solicitor General, Department of Justice 

Opening statement June 28, 2010 .................................................................. 55 

statement June 30, 2010 .................................................................................. 194 

prepared statement .......................................................................................... 812 

Questionnaire .................................................................................................... 379 

QUESTIONS AND ANSWERS 

Responses of Elena Kagan, to Questions submitted by Senators Leahy, Specter, Hatch, Grassley, Sessions, Cornyn and Coburn ......................................... 425 

Responses of Elena Kagan, to Questions submitted by Senators Cornyn, 

Coburn, Graham, Grassley, Kyl and Sessions ................................................... 459 

SUBMISSIONS FOR THE RECORD 

Abzug, Liz J., Consultant Services, New York, New York, June 30, 2010, 

letter ...................................................................................................................... 533 

All Indian Pueble Council, Joe Garcia, Chairman, Albuquerque, New Mexico, 

June 11, 2010, letter ............................................................................................ 535 

Alt, Robert, Senior Fellow and Deputy Director, Center for Legal and Judicial 

Studies, The Heritage Foundation, Washington, DC, statement ..................... 536 

American Association of Christian Schools, Keith Wiebe, President, Washington, DC, June 26, 2010, letter ........................................................................ 554 

Askew, Kim J., Chair, American Bar Association, Standing Committee on 

the Federal Judiciary, Washington, DC, statement .......................................... 555 

American Center for Law & Justice (ACLJ), Jay A. Sekulow, Chief Counsel, 

Washington, DC, statement ................................................................................ 581 

American Civil Liberties Union, New York, New York, report ........................... 642 

American Conservative Union, Larry Hart, Director of Government Relations, 

Alexandria, Virginia, letter ................................................................................. 674 

Bill of Rights Defense Committee (BORDC), Northampton, Massachusetts, 

June 28, 2010, joint letter ................................................................................... 675 

Clark, Robert C., Professor and former Dean, Harvard Law School, Cambridge, Massachusetts, statement ....................................................................... 694 

Congressional Black Caucus, Barbara Lee, Chairwoman, Eleanor Holmes 

Nortorn, Chairwoman, and CBC Judicial Nominations Taskforce, Washington, DC, June 28, 2010, joint letter ............................................................... 698 

Page

V 

Donnelly, Elaine, President, Center for Military Readiness, Washington, DC, 

June 29, 2010, letter ............................................................................................ 700 

Duffly, Fernande ‘‘Nan’’, Associate Justice, Massachusetts Court of Appeals, 

on behalf of the National Association of Women Judges, statement ............... 702 

Estrada, Miguel A., Lawyer, Gibson, Dunn & Crutcher, LLP, Washington 

DC, May 14, 2010, letter ..................................................................................... 708 

Fitzpatrick, Brian, Assistant Professor of Law, Vanderbilt University, Nashville, Tennessee, June 8, 2010, letter ................................................................. 710 

Former Solicitor General, Walter Dellinger and Theodore B. Olson on behalf 

of Charles Fried; Kenneth W. Starr; Drew S. Days III; Seth P. Waxman; 

Paul Clement and Gregory G. Garre; June 22, 2010, joint letters .................. 716 

Frederick, David C., Kellogg, Huber, Hansen, Todd, Evans & Figel, PLLC, 

Washington, DC, June 8, 2010, letter ................................................................ 718 

Garre, Gregory G., Partner, Latham & Watkins LLP, Washington, DC, statement ...................................................................................................................... 720 

Gibbins, Jennifer, Soundkeeper/Executive Director, Prince William 

Soundkeeper, Cordova, Alaska, statement ........................................................ 737 

Goldsmith, Jack, Henry L. Shattuck Professor, Harvard Law School, Cambridge, Massachusetts, statement ....................................................................... 741 

Greenberger, Marcia D., Co-President, National Women’s Law Center, Washington, DC, statement .......................................................................................... 747 

Gross, Jack, Plaintiff, Gross v. FBL Financial Service Inc., Mt. Ayr, Iowa, 

statement .............................................................................................................. 769 

Harper, Licia L., Hip Hop entertainment Law Project (HHELP), Detroit, 

Michigan, May 18, 2010, letter ........................................................................... 776 

Harrison & Matsuoka, William A. Harrison, Attorneys at Law, Honolulu, 

Hawaii, June 17, 2010, letter .............................................................................. 779 

Harvard Law School Graduates, Kevin M. LoVecchio, Class of 2007 and 

Joshua S. Gottheimer, Class of 2004, on behalf of the Harvard Law School 

Alumni, Cambridge, Massachusetts, June 24, 2010, joint letter ..................... 781 

Ho, Lam, Juris Doctor, Harvard Law School, 2008, June 29, 2010, letter ......... 785 

Hegseth, Peter B., Executive Director, Vets for Freedom, Army National 

Guard, Washington, DC, statement ................................................................... 788 

Hispanic National Bar Association (HNBA), Roma ̃n D. Herna ̃ndez, National 

President, Washington, DC, July 1, 2010, letter ............................................... 790 

House of Representatives in Congress of the United States, Members, Adam 

B. Schiff and James P. McGovern, June 17, 2010, joint letters ....................... 792 

Judicial Action Group (JAG), Birmingham, Alabama, June 1, 2010, letter ....... 798 

Kirsanow, Peter N., Commissioner, Benesch Law Firm, Cleveland, Ohio, 

statement .............................................................................................................. 818 

Kopel, David B., Research Director, Independence Institute, Golden, Colorado, 

statement .............................................................................................................. 839 

Kramer, Larry D., Dean and Richard E. Land, Professor of Law Stanford 

Law School, on behalf of Law School Deans, Stanford, California, June 

7, 2010, letter ....................................................................................................... 854 

Land, Richard D., The Ethics & Religious Liberty Commission, Washington, 

DC, June 25, 2010, letter .................................................................................... 860 

Page

VI 

Law Clerks, former, Justice of the Supreme Court, Sharon L. Beckman, 

Associate Justice Sandra Day O’Connor; Richard D. Bernstein, Associate 

Justice Antonin Scalia; Albert J. Boro, Jr, Associate Justice Byron White; 

Emily Buss, Associate Justice Harry Blackmun; Paul T. Cappuccio, Associate Justice Antonin Scalia; Steven T. Catlett, Associate Justice Sandra 

Day O’Connor; Dan C. Chung, Associate Justice Anthony M. Kennedy; 

Richard A. Cordray, Associate Justice Byron White; Ann M. Kappler, Associate Justice Harry Blackmun; Peter D. Keisler, Associate Justice Anthony 

M. Kennedy; Ronald A. Klain, Associate Justice Byron White; Harry 

Litman, Associate Justice Thurgood Marshall; Alan C. Michaels, Associate 

Justice Harry Blackmun; R. Charles Miller, Chief Justice William H. 

Rehnquist; Randolph D. Moss, Associate Justice John Paul Stevens; Teresa 

Wynn Roseborough, Associate Justice John Paul Stevens; E. Joshua 

Rosenkranz, Associate Justice William J. Brennan, Jr; Michael P. Doss, 

Associate Justice Thurgood Marshall; Gregory S. Dovel, Retired Chief Justice Warren E. Burger; J. Anthony Downs, Chief Justice William H. 

Rehnquist; Einer R. Elhauge, Associate Justice William J. Brennan, Jr.; 

Mark H. Epstein, Associate Justice William J. Brennan, Jr., Miguel A. 

Estrada, Associate Justice Anthony M. Kennedy; Abner S. Greene, Associate Justice John Paul Stevens; Joseph R. Guerra, Associate Justice William J. Brennan, Jr.; Carol S. Steiker, Associate Justice Thurgood Marshall; 

William L. Taylor, Chief Justice William H. Rehnquist; Robert H. Tiller, 

Associate Justice Antonin Scalia; and E. Lawrence Vincent, Associate Justice Anthony M. Kennedy; June 23, 2010, joint letter ...................................... 861 

Law School, Professors, June 29, 2010, joint letter .............................................. 865 

Lawyers, Donald B. Ayer; Lisa Blatt; Richard P. Bress; Louis R. Cohen; 

Carolyn F. Corwin; Paul A. Engelmayer; Roy T. Englert, Jr.; Barbara 

E. Etkind; H. Bartow Farr; James A. Feldman; Andrew L. Frey; Jerrold 

J. Ganzfried; Kenneth S. Geller; Irv Gornstein; Douglas HallwardDriemeier; Alan I. Horowitz; Alan Jenkins; George W. Jones, Jr.; Daryl 

Joseffer; Michael K. Kellogg; Robert H. Klonoff; Bruce N. Kuhlik; Philip 

A. Lacovara; Jeffrey A. Lamken; Albert G. Lauber; Micael R. Lazerwits; 

Robert A. Long, Jr.; Maureen Mahoney; Ronald J. Mann; Jonathan Marcus; 

Deanne E. Maynard; Michael W. McConnell; Thomas W. Merrill; Patricia 

A. Millett; Gerald P. Norton; Jonathan E. Nuechterlein; Carter G. Phillips; 

Andrew J. Pincus; Charles A. Rothfeld; John P. Rupp; Elliott Schulder; 

Joshua Schwarts; David L. Shapiro; Harriet S. Shapiro; Howard E. Shapiro; 

Stephen M. Shapiro; Cliff Sloan; Sri Srinivasan; David A. Strauss; Richard 

G. Taranto; Stephen L. Urbanczyk; Amy L. Wax; Raul R. Q. Walfson 

and Christopher J. Wright, June 25, 2010, joint letter .................................... 883 

Leadership Conference on Civil and Human Rights, Wade Henderson, President & CEO and Nancy Zirkin, Executive Vice President, July 19, 2010, 

joint letter ............................................................................................................. 887 

Ledbetter, Lily, Plaintiff, Ledbetter v. Goodyear Tire, statement ........................ 895 

Liberty Counsel, Mathew D. Staver, Founder and Chairman, Dean and Professor of Law, Liberty University School of Law, Washington, DC, June 

25, 2010, letter ..................................................................................................... 898 

McConnell, Michael W., Richard & Frances Mallery Professor of Law, Director, Constitutional Law Center, Stanford Law School, Stanford, California, 

June 25, 2010, letter ............................................................................................ 901 

Military Families, United, Robert Jackson, Director of Governmental Affairs, 

Washington, DC, June 25, 2010, letter .............................................................. 909 

Moe, Thomas N., Colonel, USAF (retired), statement .......................................... 911 

NAACP Legal Defense & Educational Fund, Inc., John Payton, Director 

Counsel & President, Washington, DC, report .................................................. 919 

National Association of Social Workers, Elizabeth J. Clark, Executive Director, Washington, DC, June 3, 2010, letter ......................................................... 953 

National Association of Women Judges, Dana Fabe, President, Washington, 

DC, May 19, 2010, letter ..................................................................................... 955 

National Congress of American Indians, Jacqueline Johnson Pata, Executive 

Director, Washington, DC, letter and resolution ............................................... 957 

National Council of Jewish Women, Nancy Ratzan, President, Washington, 

DC, June 10, 2010, letter .................................................................................... 960 

National District Attorneys Association, Christopher Chiles, President, Alexandria, Virginia, June 25, 2010, letter ............................................................... 961 

National Jewish Democratic Council, Ira N. Forman, Executive Director and 

Chief Executive Officer, Washington, DC, June 15, 2010, letter ..................... 962 

Page

VII 

National LGBT Bar Association, D’Arcy Kemnitz, Executive Director, Washington, DC, June 25, 2010, letter ........................................................................ 963 

National Minority Law Group, Martin P. Greene, President, Chicago, Illinois, 

June 11, 2010, letter ............................................................................................ 964 

National Partnership for Women & Families, Debra L. Ness, President, 

Washington, DC, June 25, 2010, letter .............................................................. 966 

National Right to Life Committee, Inc., David N. O’Steen, Executive Director, 

Douglas Johnson, Legislative Director, and Susan T. Muskett, Senior Legislative Counsel, Washington, DC, June 23, 2010, joint letter ........................... 968 

National Right to Work Committee, Mark A. Mix, Washington, DC, July 

1, 2010, letter ....................................................................................................... 972 

National Rifle Association of America, Wayner LaPierre, Executive Vice President, and Chris Cox, Executive Director, Fairfax, Virginia, July 1, 2010, 

joint letter ............................................................................................................. 976 

National Senior Citizens Law Center, Paul Nathanson, Executive Director, 

Washington, DC, June 25, 2010, letter .............................................................. 978 

New America Alliance (NAA), Carlos Loumient, Chair of the Board, Maria 

del Pilar Avila, Chief Executive Officer, Washington, DC, June 29, 2010, 

letter ...................................................................................................................... 981 

O’Hara, Patricia A., Professor of Law, University of Nortre Dame, Law 

School, Notre Dame, Indiana, June 16, 2010, letter ......................................... 983 

Olson, William J., William J. Olson, P.C., Vienna, Virginia, statement ............. 993 

OWL, Ashley Carson, Executive Director, Washington, DC, June 2, 2010, 

letter ...................................................................................................................... 994 

Perkins, Tony, president, Family Research Council, Washington, DC, statement ...................................................................................................................... 995 

Prager, Zachary, Preger, July 1, 2010, letter ........................................................ 1005 

Presser, Stephen B., Raoul Berger, Professor of Legal History, Northwestern 

University School of Law, Chicago, Illinois, statement .................................... 1006 

Refo, Patricia Lee, Partner, Snell & Wilmer, Law Firm, and Co-chair, Dean 

JoAnne A. Epps of Temple University Beasley School of Law, Phoenix, 

Arizona, statement ............................................................................................... 1014 

Rosenberg, David, Harvard Law School, Lees S. Kreindler Professor of Law, 

Cambridge, Massachusetts, June 28, 2010, letter ............................................. 1018 

Rotunda, Ronald D., Professor, The Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, Chapman University School of Law, 

Orange, California, statement ............................................................................. 1020 

Rucker, Staci Patterson, Harvard Law School, Cambridge, Massachusetts, 

June 25, 2010, letter ............................................................................................ 1063 

Shestack, Jerome, Lawyer, Schnader Harrison Sand Sequal & Lewis, LLP, 

Philadelphia, Pennsylvania, May 24, 2010, letter ............................................. 1065 

Slaughter, Hon. Louise M., a Representative in Congress from the State 

of New York, May 18, 2010, letter ...................................................................... 1066 

Steiker, Carol, Howard & Kathy Aibel Professor of Law, Dean’s Special Advisor for Public Service, Harvard Law School, Cambridge, Massachusetts, 

June 24, 2010, letter ............................................................................................ 1079 

Stern, David, Executive Director, Equal Justice Works, Washington, DC, June 

24, 2010, letter ..................................................................................................... 1083 

Sullivan, Ronald S., Jr., Edward R. Johston Lecturer on Law, Director of 

the Criminal Justice Institute, Harvard Law School, Cambridge, Massachusetts, statement .................................................................................................... 1085 

Tressler, David M., Juris Doctor, Harvard Law School 2006, First Lieutenant, 

Civil Affairs, U.S. Army Reserve, Khost Province, Afghanistan, June 30, 

2010, letter ............................................................................................................ 1092 

United South and Eastern Tribes, Inc., Brian Patterson, President, Nashville, 

Tennessee, July 2, 2010, letter ........................................................................... 1095 

Vergara, Gonzalo I., Lt. Col., U.S. Airforce, retired, May 10, 2010, letter ......... 1097 

Wald, Patricia M., Retired Judge, U.S. Court of Appeals, DC Circuit, letter .... 1098 

Whelan, Edward, President, Ethics and Public Policy Center, statement ......... 1100 

White House Project, Marie Wilson, President and Founder, New York, New 

York, July 2, 2010, letter ..................................................................................... 1122 

White, Kurt, Captain, President, Harvard Law Armed Forces Association, 

Army National Guard, statement ....................................................................... 1123 

Women’s Bar Association, District of Columbia (WBA), Holly E. Loiseau, 

President, Washington, DC, June 2, 2010, letter .............................................. 1128 

Yoest, Charmaine, President and CEO, Americans United for Life, Washington, DC, statement .......................................................................................... 1130 

Page

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YoungBlood, Flagg, Captain, United States Army (retired), statement ............. 1157 

(1) 

THE NOMINATION OF ELENA KAGAN TO BE 

AN ASSOCIATE JUSTICE OF THE SUPREME 

COURT OF THE UNITED STATES 

MONDAY, JUNE 28, 2010 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, Pursuant to notice, at 12:32 p.m., in room 

SH–216, Hart Senate Office Building, Hon. Patrick J. Leahy, 

Chairman of the Committee, presiding. 

Present: Senators Leahy, Kohl, Feinstein, Feingold, Specter, 

Schumer, Durbin, Cardin, Whitehouse, Klobuchar, Kaufman, 

Franken, Sessions, Hatch, Grassley, Kyl, Graham, Cornyn, and 

Coburn. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. 

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Good afternoon. I welcome everybody here. 

Just so you know the procedure—Senator Sessions and I have discussed this—we are going to recognize Senators in order of seniority doing the usual back and forth. Senator Sessions and I will each 

give an opening statement and, following our opening statement, 

take turns back and forth. I would urge Senators to stay—in fact, 

we are going to have to stay within the 10 minutes just simply to 

keep on schedule. 

Of course, Solicitor General Kagan, welcome to our Committee 

room. There are somewhat more people here than usual. 

But let me begin. One of the things that will change slightly our 

schedule this week is the death of Senator Byrd. All of us, I believe 

it is safe to say, both Republican and Democratic Senators, are saddened by his death. No Senator came to care more about the Constitution or to be a more effective defendant of our constitutional 

Government than the senior Senator from West Virginia. In many 

ways, he was the keeper of the Senate flame, the fiercest defender 

of the Senate’s constitutional role and prerogatives. I do not know 

how many times we saw Senator Byrd hold up a copy of the Constitution. The difference between him holding it up and any one of 

us holding it up, he could put it back in his pocket and recite it 

verbatim, the whole Constitution. Others will speak of his record 

for the time served in the Senate and Congress, for the number of 

votes case. 

I knew him as a mentor and a friend. He served for a time on 

this Committee. I was honored to sit near him in the same row on 

2 

the Senate floor and engage in many discussions about the Senate 

and its rules or about the issue of the moment or about our families. And it was a privilege to stand with him and fight against assaults on the Constitution and what the two of us felt was an unnecessary and costly war in Iraq. 

He was a self-educated man. He learned much throughout his 

life. He had much to teach us all. 

Senator Byrd was such an extraordinary man of merit and grit 

and determination who loved his family and drew strength from 

his deep faith, who took to heart his oath to support and defend 

the Constitution. The arc of his career in public service is an inspiration to all and should inspire generations of Americans. 

Now, on the issue before us today, there have been 111 Justices 

on the Supreme Court of the United States. Only three have been 

women. If she is confirmed, Solicitor General Kagan will bring the 

Supreme Court to a historical high-water mark. 

Elena Kagan earned her place at the top of the legal profession. 

Her legal qualifications are unassailable. As a student, she excelled 

at Princeton, Oxford, and Harvard Law School. She was a law clerk 

to the great Supreme Court Justice, Justice Thurgood Marshall, 

and I appreciate seeing Justice Marshall’s son, Thurgood Marshall, 

in the audience here today. She worked in private practice and 

briefly for then-Senator Biden on this Committee. She taught law 

at two of the Nation’s most respected law schools. She counseled 

President Clinton on a wide variety of issues. She served as Dean 

of Harvard Law School and is now the Solicitor General of the 

United States, sometimes referred to as ‘‘the tenth Justice.’’ I believe we are a better country for the fact that the path of excellence 

Elena Kagan has taken in her career is a path now open to both 

men and women. 

As Chief Justice Marshall wrote, our Constitution is ‘‘intended to 

endure for ages . . . and consequently, to be adapted to the various 

crises of human affairs.’’ He and other great Justices have recognized that the broadly worded guarantees and powers granted in 

the Constitution adapt to changing circumstances. 

Consequently, our Constitution has withstood the test of time. 

The genius of our Founders was to establish a Constitution firm 

enough to enshrine freedom and the rule of law as guiding principles, yet flexible enough to sustain a young Nation that was destined to grow into the greatest, the richest, most powerful Nation 

on Earth, and I might say one of the most diverse nations on 

Earth. 

It took more than four score years and a Civil War that claimed 

the lives of hundreds of thousands to end the enslavement of African-Americans and include as citizens ‘‘all persons born or naturalized in the United States.’’ Through the Civil War amendments 

that followed, we transformed the Constitution into one that more 

fully embraced equal rights and human dignity. The country and 

our democracy were stronger for it. But the job was not complete. 

It was halfway through the last century that racial discrimination 

was dealt a blow by the Supreme Court in the modern landmark 

case of Brown v. Board of Education, Congress passed the Civil 

Rights Act of 1964 and the Voting Rights Act of 1965, and America 

3 

began to provide a fuller measure of equality to those who were 

held back for so long because of the color of their skin. 

Our path to a more perfect Union also included the rejection 75 

years ago of conservative judicial activism by the Supreme Court 

and our establishing a social safety net for all Americans. It began 

with us outlawing child labor and guaranteeing a minimum wage. 

Through Social Security, Medicare, and Medicaid, Congress ensured that growing old no longer means growing poor, and that 

being older or poor no longer means being without medical care. 

That progress continues today. All of us are the better for it. 

Now, the 100 members of the Senate stand here in the shoes of 

more than 300 million Americans as we discharge our constitutional duty with respect to this nomination. The Supreme Court exists for all Americans. Only one person gets to nominate somebody 

for the Court. Only 100 Americans get to vote on whether that person should be on the Court or not. It is an awesome responsibility, 

and I urge the nominee to engage with this Committee and 

through these proceedings with the American people in a constitutional conversation about the role of the courts and our Constitution. 

When we discuss the Constitution’s Commerce Clause or spending power, we are talking about congressional authority to pass 

laws to ensure protection of our communities from natural and 

man-made disasters, to encourage clean air and water, to provide 

health care for all Americans, to ensure safe food and drugs, to protect equal rights, to enforce safe workplaces, and to provide a safety net for all seniors. 

Now, I reject the ideological litmus test, from either the right or 

the left, that some would apply to Supreme Court nominees. I expect judges to look to the legislative intent of our laws, to consider 

the consequences of their decisions, to use common sense, and to 

follow the law. In my view, a Supreme Court Justice needs to exercise judgment, should appreciate the proper role of the courts in 

our democracy, and should consider the consequences of decisions 

on the fundamental purposes of the law and in the lives of Americans. 

I will urge Solicitor General Kagan here publicly what I have 

urged her privately: to be open, to be responsive, to share with us 

but even more importantly with the American people her judicial 

philosophy, but also to assure us of her judicial independence from 

either the right or the left. I believe that fair-minded people will 

find her judicial philosophy well within the legal mainstream. I 

welcome questions to Solicitor General Kagan about judicial independence, but I would urge Senators on both sides to be fair. There 

is no basis to question her integrity, and no one should presume 

that this intelligent woman, who has excelled during every part of 

her varied and distinguished career, lacks independence. 

And it is essential that judicial nominees understand that, as 

judges, they are not members of any administration. The courts are 

not subsidiaries of any political party or interest group, and our 

judges should not be partisans. That is why the Supreme Court’s 

intervention in the 2000 Presidential election in Bush v. Gore was 

so jarring and why it shook, in many people’s minds throughout 

this country, the credibility of the Court. That is why the Supreme 

4 

Court’s recent decision in Citizens United, in which five conservative Justices rejected the Court’s own precedent, rejected the bipartisan law enacted by Congress, rejected 100 years of legal developments in order to open the door for massive corporate spending 

on elections, was such a jolt to the system. 

The American people live in a real world of great challenges. The 

Supreme Court needs to function in that real world within the constraints of our Constitution. My own State of Vermont, the 14th 

State in the Union, did not vote to join the Union until the year 

the Bill of Rights was ratified. We are cautious in Vermont. Those 

of us from the Green Mountain State are protective of our fundamental liberties. We understand the importance the Constitution, 

and its amendments, have had in expanding individual liberties 

over the last 220 years. 

I hope that Elena Kagan will demonstrate through this hearing 

that she will be the kind of independent Justice who will keep faith 

with these principles and keep faith with the words that are inscribed in Vermont marble over the front doors to the Supreme 

Court: ‘‘Equal Justice Under Law.’’ 

I will put the rest of my statement in the record. 

[The prepared statement of Chairman Leahy appears as a submission for the record.] 

Chairman LEAHY. Senator Sessions. 

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM 

THE STATE OF ALABAMA 

Senator SESSIONS. Thank you, Mr. Chairman. I would like to join 

you in recognizing this special moment of the loss of Senator Byrd 

who was such an institution here. He taught all of the new Senators something about the Senate. He believed there were two 

great Senates—the Roman Senate and the American Senate—and 

he wanted ours to be the greatest ever. 

I remember one day he gave a speech on a Friday morning that 

I heard in which he complained about textbooks and the failure to 

distinguish between a republic and a democracy. He went on at 

some length demonstrating that and then called them ‘‘touchy-feely 

twaddle.’’ 

[Laughter.] 

But he loved the Constitution, he loved our country, and he loved 

clarity of thought, and we will certainly miss him. 

Ms. Kagan, let me join Chairman Leahy in welcoming you here 

today. This nomination is certainly a proud day for you, your family, and your friends, and rightfully so. I enjoyed very much our 

meeting a few weeks ago and appreciated the chance to talk with 

you then. 

Mr. Chairman, thank you for your work on this nomination. As 

I have pledged, Republicans are committed to conducting this hearing in a thoughtful and respectful manner. It is not a coronation, 

as I have said, but a confirmation process. Serious and substantive 

questions will be asked. Ms. Kagan will be given ample opportunity 

to respond. 

Ms. Kagan certainly has numerous talents and many good qualities, but there are serious concerns about this nomination. Ms. 

Kagan has less real legal experience of any nominee in at least 50 

5 

years, and it is not just that the nominee has not been a judge. She 

has barely practiced law and not with the intensity and duration 

from which I think real legal understanding occurs. Ms. Kagan has 

never tried a case before a jury. She argued her first appellate case 

just 9 months ago. While academia certainly has value, there is no 

substitute, I think, for being in the harness of the law, handling 

real cases over a period of years. 

What Ms. Kagan’s public record does reveal is a more extensive 

background in policy, politics, mixed with law. Ms. Kagan’s college 

thesis on socialism in New York seems to bemoan socialism’s demise there. In her master’s thesis, she affirmed the activist tendencies of the Earl Warren Court, but complained that they could 

have done a better job of justifying their activism. 

President Obama’s nominee started her political career in earnest as a staff on the Presidential campaign of Michael Dukakis. 

She took leave from teaching at law school to work for this Committee under then-Chairman Joe Biden to help secure the nomination of Ruth Bader Ginsburg, a former counsel for the ACLU and 

now one of the most active members of Justices on the Supreme 

Court. 

I know you would join with me, Mr. Chairman, expressing our 

sympathy to Justice Ginsburg on the loss of her husband also. 

Chairman LEAHY. A wonderful man. 

Senator SESSIONS. Professor Kagan left teaching law to spend 5 

years at the center of politics, working in the Clinton White House, 

doing, as she described it, mostly policy work. Policy is quite different than intense legal work, for example, in the Office of Legal 

Counsel or some of the Divisions in the Department of Justice. 

During her White House years, the nominee was the central figure in the Clinton-Gore effort to restrict gun rights and as the dramatic 5–4 decision today in the McDonald case shows, the personal 

right of every American to own a gun hangs by a single vote on 

the Supreme Court. 

Ms. Kagan was also the point person for the Clinton administration’s effort to block congressional restrictions on partial birth abortions. Indeed, documents show that she was perhaps the key person who convinced President Clinton to change his mind from supporting to opposing legislation that would have banned that procedure. 

During her time as Dean at Harvard, Ms. Kagan reversed Harvard’s existing policy and kicked the military out of the recruiting 

office in violation of Federal law. Her actions punished the military 

and demeaned our soldiers as they were courageously fighting for 

our country in two wars overseas. 

As someone who feels the burden of sending such young men and 

women into harm’s way and who spent much time drafting and redrafting legislation to ensure military recruiters were treated fairly 

on campus, I cannot take this issue lightly. 

Dean Kagan also joined with three other law school deans to 

write a letter in opposition to Senator Graham’s legislation establishing procedures for determining who was an enemy combatant 

in the war on terror. She compared this legislation, which passed 

84–14, to the fundamentally lawless actions of a dictatorship. 

6 

Most recently, the nominee served as Solicitor General for little 

over a year, but her short tenure there has not been without controversy. In her first appellate argument, Ms. Kagan told the Court 

that the speech and press guarantees in the First Amendment 

would allow the Federal Government to ban the publication of 

pamphlets discussing political issues before an election. I would remind my colleagues that the American Revolution was in no small 

part spurred by just such political pamphlets: Thomas Paine’s 

‘‘Common Sense.’’ To suggest that the Government now has the 

power to suppress that kind of speech is breathtaking. 

Also as Solicitor General, Ms. Kagan approved the filing of a 

brief to the Supreme Court asking that it strike down provisions 

of the Legal Arizona Workers Act, which suspends or revokes business licenses of corporations which knowingly hire illegal immigrants, even though Federal law expressly prohibits such hiring. 

She did this even after the liberal Ninth Circuit had upheld the 

law. This is an important legal issue that the Court will resolve 

during the next term. 

And despite promises to this Committee that she would vigorously defend the Congress’ ‘‘Don’t ask, don’t tell’’ policy for the military if it were challenged in court, the actions she has taken as Solicitor General do appear to have deliberately and unnecessarily 

placed that law in jeopardy. 

Importantly, throughout her career, Ms. Kagan has associated 

herself with well-known activist judges who have used their power 

to redefine the meaning of words of our Constitution and laws in 

ways that, not surprisingly, have the result of advancing that 

judge’s preferred social policies and agendas. 

She clerked for Judge Mikva and Justice Marshall, each wellknown activists, and she has called Israeli judge Aharon Barak, 

who has been described as the ‘‘most activist judge in the world,’’ 

as her hero. These judges really do not deny their activist ideas. 

They advocate it, and they openly criticize the idea that a judge is 

merely a neutral umpire. 

Few would dispute this record tells us much about the nominee. 

In many respects, Ms. Kagan’s career has been consumed more by 

politics than law, and this does worry many Americans. In the 

wake of one of the largest expansions of Government power in history, many Americans are worried about Washington’s disregard 

for limits on its power. Americans know that our exceptional Constitution was written to ensure that our Federal Government is one 

of limited separated powers and part of a Federal-State system 

with individual rights reserved to our free people. 

But we have watched as the President and Congress have purchased ownership shares in banks, nationalized car companies, 

seized control of the student loan industry, taken over large sectors 

of our Nation’s health care system, and burdened generations of 

Americans with crippling debt. 

So this all sounds a lot like the progressive philosophy which became fashionable among elite intellectuals a century ago and which 

is now seeing a revival. They saw the Constitution as an outdated 

impediment to their expansive vision for a new social and political 

order in America. Even today, President Obama advocates a judicial philosophy that calls on judges to base their decisions on empaVerDate Nov 24 2008 12:24 Aug 23, 2011 Jkt 067622 PO 00000 Frm 00016 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\67622.TXT SJUD1 PsN: CMORC
7 

thy and their broader vision of what America should be. He suggests that his nominee shares those views. 

Our legal system does not allow such an approach. Americans 

want a judge that will be a check on Government overreach, not 

a rubber stamp. No individual nominated by a President of either 

party should be confirmed as a judge if he or she does not understand that the judge’s role is to fairly settle disputes of law and not 

set policy for the Nation. 

Broad affirmations of fidelity to law during these hearings will 

not settle the question. One’s record also speaks loudly. Indeed, it 

is easy to pledge fidelity to law when you believe you can change 

its meaning later if you become a judge. Ms. Kagan has called previous confirmation hearings ‘‘vapid and hollow’’—some probably 

have been—and has argued that nominees for a lifetime position 

owe a greater degree of candor and openness to the Committee. I 

agree with that. I agree that candor is needed and look forward to 

this good exchange this week, Mr. Chairman. 

Chairman LEAHY. Thank you very much. 

We will go next to Senator Kohl, and then we will go to Senator 

Hatch. Senator Kohl. 

STATEMENT OF HON. HERB KOHL, A U.S. SENATOR FROM THE 

STATE OF WISCONSIN 

Senator KOHL. Thank you, Mr. Chairman, and good afternoon to 

you, Solicitor General Kagan. We welcome you to the Committee 

and extend our congratulations to you on your nomination. If confirmed, you will bring to the Court an impeccable resume and a formidable track record of accomplishments, and you will bring a new 

perspective to the bench, as each new Justice does, based on your 

life and on your career. 

You come before us today not from the halls of our judicial monastery, but with the insight of a scholar and a teacher and the political policy and legal acumen of a White House aide, law school 

dean, and the Solicitor General of the United States. 

Your encounters with the law have formed the lens through 

which you will judge the dilemmas of our democracy and the constitutional questions we face. At this hearing, we will try to learn 

from you how that lens will affect your judgment on the Court. 

Should you be confirmed, your decisions will impact our pocketbooks and our livelihoods and determine the scope of our most 

cherished rights, from the right to privacy to the right to equal 

education, employment, and pay, from the right to an attorney and 

a fair trial for the accused, to the right to speak and worship freely. 

In these difficult economic times in the wake of what could be 

the worst environmental crisis in our Nation’s history, and as we 

continue our fight against terrorism, we are mindful of the great 

influence you will have on the issues and cases that wash up on 

the shores of our courts. 

The questions you will confront are not only concepts for lawyers 

and courts to contemplate. Behind the volumes of legal briefs are 

real people with real problems, and beyond the individual parties 

to each case will stand the rest of us who will feel either the brunt 

or the bounty of your decisions. 

8 

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 highstakes events that they are today. 

But all of these things do matter, and we care deeply about the 

Supreme Court precisely because it rules on only the toughest and 

the most challenging problems. 

We can all agree that your decisions will impact society long 

after you have left the Court. Justice Oliver Wendell Holmes put 

it plainly, and I quote: ‘‘Presidents come and go, but the Supreme 

Court goes on forever.’’ 

That is why it is so important for us to know who you are, Solicitor General Kagan, what is in your heart, and what is in your 

mind. We can gain some insight from your work for President Clinton and Justice Thurgood Marshall. But we have less evidence 

about what sort of judge you will be than on any nominee in recent 

memory. Your judicial philosophy is almost invisible to us. We do 

not have a right to know in advance how you will decide cases, but 

we do have a right to understand your judicial philosophy and 

what you think about fundamental issues that will come before the 

Court. 

As you said in your own critique of these hearings in 1995, it is 

‘‘an embarrassment that Senators do not insist that a nominee reveal what kind of Justice she would make by disclosing her views 

on important legal issues.’’ 

The President has his vetting process, and we in the Senate have 

our vetting process, but this hearing is the only opportunity for the 

American public to learn who you are. They deserve to learn about 

your views and motivations before you don the black robes of a Justice for a lifetime appointment. 

For each Supreme Court nomination in which I have participated, I have put each nominee to a test of judicial excellence, and 

your nomination will be no different. First, the nominee must demonstrate that she has the competence, character, integrity, and 

temperament necessary for any judge or Justice, and that she will 

have an open mind, not only willing to hear cases with an open 

mind, but also willing to decide cases with an open mind. 

I also look for a nominee to have the sense of values and judicial 

philosophy that are within the mainstream of legal thought in our 

country. No one, including the President, has the right to require 

ideological purity from a member of the Supreme Court. But we do 

have a right to require that the nominee accept both the basic principles of the Constitution and its core values implanted in society. 

And, finally, we want a nominee with a sense of compassion. 

Compassion does not mean bias or lack of impartiality. It is meant 

to remind us that the law is more than a mental exercise or an intellectual feast. It is about the real problems that will share the 

fabric of American life for generations to come. 

The great dilemmas of our democracy invite us to engage in a robust debate, and my hope is that we can engage in a substantive 

9 

and candid dialog that will benefit not only those here on the Committee, but also, and most importantly, the public. The American 

people want and deserve a process that is more than what you 

characterized as a ‘‘vapid and hollow charade’’ and which so frustrated you just 15 years ago. 

In a tribute to Justice Marshall, you said that the stories he told 

to his law clerks served the purpose of reminding you that, ‘‘Behind 

the law there are stories, stories of people’s lives as shaped by the 

law, and stories of people’s lives as might be changed by the law.’’ 

So we are gathered here today to hear your stories, how your life 

has been shaped by the law, and how our lives might be changed 

by the law when you are on the Court. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you very much, Senator Kohl. 

Senator Hatch. 

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM 

THE STATE OF UTAH 

Senator HATCH. Well, thank you, Mr. Chairman. Today is a sad 

day with the passing of our great colleague Senator Robert Byrd 

this morning and the death yesterday of Justice Ruth Bader Ginsburg’s husband, Marty. 

Senator Byrd was a towering presence in the Senate for decades, 

and his love for the Constitution and for this legislative body was 

well known. He stood up for it all the time, and, of course, I had 

nothing but great respect for him. I remember in the early years 

when I led the fight against labor law reform, he was not very 

happy with me. And, frankly, I was not very happy with him, either. But in the end, I gained such tremendous respect for him and 

love, even though we differed on so many issues. He was a towering figure. 

The Ginsburgs celebrated their 56th wedding anniversary just a 

few days ago—not as long as the 68 years that Senator and Erma 

Byrd were married before her death, but a good long time, nonetheless. Cancer was a part of the Ginsburgs’ individual lives and their 

life together for many years, and I know that each of them was a 

source of strength and stability to the other. The Ginsburgs have 

been a model of dignity and grace, and Justice Ginsburg and her 

children will be in my prayers. 

Now I want to welcome you back to the Judiciary Committee, 

General Kagan. Something tells me this is likely to be your last 

confirmation hearing. 

As America’s founders designed it, the Senate’s role of advice and 

consent is a check on the President’s power to appoint. Fulfilling 

that role requires us to evaluate a nominee’s qualifications for the 

particular position for which she has been nominated. Qualifications for judicial service include both legal experience and judicial 

philosophy. 

While legal experience summarizes the past, judicial philosophy 

describes how a nominee will approach judging in the future. My 

primary goal in this confirmation process is to get the best picture 

I can of General Kagan’s judicial philosophy, primarily from her 

record, but also from this hearing as well. 

10 

I have to make my decision whether to support or not support 

her nomination on the basis of evidence, not on blind faith. I have 

never considered the lack of judicial experience to be an automatic 

disqualifier for a judicial nominee. Approximately one-third of the 

111 men and women who have served on the Supreme Court have 

had no previous judicial experience. What they did have, however, 

was an average of more than 20 years of private practice experience. In other words, Supreme Court nominees have had experience behind the bench as a judge, before the bench as a lawyer, or 

both. Ms. Kagan worked for 2 years in a law firm, the rest of her 

career in academia and politics. 

As the Washington Post described it, she brings experience ‘‘in 

the political circus that often defines Washington.’’ 

One of my Democratic colleagues on this Committee recently said 

that Ms. Kagan’s strongest qualifications for the Supreme Court 

are her experience in crafting policy and her ability to build consensus. The value of such experience depends on whether you view 

the Supreme Court as a political circus or view its role as crafting 

policy. 

I believe that the most important qualification for judicial service 

is the nominee’s judicial philosophy or her approach to interpreting 

and applying the law to decide cases. This is what judges do. But 

different judges do it in radically different ways. Our liberty, however, requires limits on Government, and that includes limits on 

judges. 

Chief Justice Marshall wrote in Marbury v. Madison that America’s Founders intended the Constitution to govern the judicial 

branch as much as the legislative branch. Unfortunately, many 

judges today do not see it that way but believe that they may 

themselves govern the Constitution. The Senate and the American 

people need to know which kind of Justice General Kagan will be. 

Will the Constitution control her or will she try to control the 

Constitution? Does she believe that the words of the Constitution 

and statutes can be separated from their meaning so that the people and their elected representatives put words on the page but 

judges may determine what those words actually mean? Does she 

believe it is valid for judges to mold and steer the law to achieve 

certain social ends? Does she believe that a judge’s personal experiences and values may be the most important element in her decisions? Does she believe that clerks exist to protect certain interests? Does she believe that judges may control the Constitution by 

changing its meaning? Does she believe that judges may change 

the meaning of statutes in order to meet what judges believe are 

new social objectives? 

These are just some of the questions that go to the heart of a 

nominee’s judicial philosophy. 

I want to clarify as best I can what kind of a Justice General 

Kagan would be. To do that, I have to examine her entire record. 

As in previous hearings, there will no doubt be some tension during 

this hearing between what Senators want to know and what General Kagan is willing to tell us. Unlike previous hearings, however, 

Ms. Kagan has already outlined quite clearly what she believes a 

Supreme Court nominee should be willing to talk about at a hearing like this. Without this information, Ms. Kagan has written, the 

11 

Senate ‘‘becomes incapable of either properly evaluating nominees 

or appropriately educating the public.’’ 

Now, Ms. Kagan identified the critical inquiry about a Supreme 

Court nominee as ‘‘the votes she would cast, the perspective she 

would add, and the direction in which she would move the institution. But the bottom line issue in the appointments process must 

concern the kinds of judicial decisions that will serve the country 

and correlatively the effect the nominee will have on the Court’s 

decisions. If that is to results-oriented, so be it.’’ 

Now, Ms. Kagan outlined that approach which she argued is necessary for Supreme Court confirmation hearings to be more than 

the acuity and farce in a law journal article when she was a 

tenured law professor after working for this Committee on a Supreme Court confirmation. I believe you will hear a lot about your 

remarks in the past and your law review article in the past. 

She was not a student writing a blog about some hypothetical 

topic that she knew nothing about. I am confident that Senators 

will give Ms. Kagan many opportunities in the next few days to 

provide the information and insight that she has argued is critical 

for the Senate properly to make a decision on her confirmation. 

This is a critical decision, and it is about more than just one person. Our decision will affect liberty itself. George Washington said 

this in his Farewell Address: ‘‘The basis of our political systems is 

the right of the people to make and alter their constitutions of Government. But the Constitution which at any time exists, till 

changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all.’’ 

The people’s right to make and alter the Constitution means 

nothing if the people choose the Constitution’s words. Judges 

choose what those words mean. A judge with that much power 

would effectively take an oath to support and defend not the Constitution but herself. 

Now, I hope that this hearing will help me further understand 

what kind of a Justice Ms. Kagan would be, and I wish you well 

and look forward to the rest of these hearings. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you very much, Senator Hatch. 

Senator Feinstein. 

STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR 

FROM THE STATE OF CALIFORNIA 

Senator FEINSTEIN. Thank you very much, Mr. Chairman. I 

would like to begin with a word about Senator Byrd. 

I have served on the Appropriations Committee for 16 out of my 

18 years in the Senate. Senator Byrd was the Chairman. He was 

tough, he was strong, he cared. Many times the Constitution 

popped out of his vest pocket. He certainly was, I think in anyone’s 

book, a titan in the Senate, and he has left an indelible imprint. 

He will be missed. 

But today, it is welcome, Solicitor General Elena Kagan. Over 

the past few weeks there has been a drift net out trying to find 

some disqualifying fact or factor in your record. But, to date, I do 

not believe any such factor has been found. I believe that you are 

eminently confirmable. 

12 

Your experience, I think, makes you a very strong nominee for 

the Court. You are the first woman Solicitor General of the United 

States—as such, the top litigator before the Supreme Court. And 

the Solicitor General is the only Federal official that is required in 

statute to be ‘‘learned in the law.’’ 

Of the 45 people who have held the job, five have gone on to the 

Supreme Court. You have filed hundreds of briefs before the Court. 

You have successfully defended the law, and you have the support 

of nearly every living Solicitor General. 

You were the first woman dean of Harvard Law School. There, 

you developed a reputation as a leader who brought all sides to the 

table. You were legal advisor to President Clinton, served as Associate White House Counsel, Deputy Director of the Domestic Policy 

Council, and you covered some tough issues: tobacco reform, importation of rapid-fire assault weapons, campaign finance, women’s 

health, abortion. What comes across in reviewing your writings is 

that you are a valuable advisor, smart, reasonable, highly respected, principled. 

You also served as a special counsel to this Committee during 

the Ginsburg confirmation hearings. 

The biggest criticism I have seen out there is that you have 

never been a judge. Frankly, I find this refreshing. The Roberts 

Court is the first Supreme Court in history to be comprised entirely 

of former Federal court of appeals judges. Throughout the history 

of the Court, over one-third of the Justices, 38 out of 111, have had 

no prior judicial experience. They included Chief Justice William 

Rehnquist, who was a law clerk for the Supreme Court, worked for 

a law firm, and then was Assistant Attorney General in the Nixon 

administration. They include Chief Justice Earl Warren, who returned from World War II to prosecute cases as an Assistant District Attorney before becoming California’s Attorney General and 

Governor. And they include Chief Justice Harlan Fiske Stone, who 

was dean of Columbia Law School and then Attorney General. 

These Justices also had no prior judicial experience, but their backgrounds proved valuable nonetheless. 

Judicial interpretation, I believe, is not a mechanical endeavor, 

like completing a math equation. The most powerful computer cannot tell us whether the President’s powers as Commander in Chief 

allow him to exceed the bounds of the Foreign Intelligence Surveillance Act and other statutes in wartime. Nor can they tell us 

whether Congressional laws barring guns from the grounds of 

schools or implementing new health insurance requirements are 

within Congress’ Article I powers. Nor can they tell us what the 

14th Amendment’s promise of equal protection under the law 

means for students in our public schools. These questions are 

among our Nation’s most important, and it takes more than an umpire to find their answers. 

In recent years, there has been a radical change on the Supreme 

Court which was on display even this morning. This morning, I 

was extremely dismayed to learn of the Court’s decision in McDonald v. City of Chicago, holding that common sense State and local 

gun laws across the country now will be subject to Federal lawsuits. This decision and its predecessor, District of Columbia v. 

Heller, have essentially disregarded the precedent of 71 years emVerDate Nov 24 2008 12:24 Aug 23, 2011 Jkt 067622 PO 00000 Frm 00022 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\67622.TXT SJUD1 PsN: CMORC
13 

bedded in United States v. Miller, a 1939 case. I find that shocking 

as a former mayor. 

I believe the proliferation of guns have made this Nation less 

safe, not more safe. We now have more guns than people in this 

country. They are sold everywhere, on street corners, in gun shows, 

with no restraint whatsoever, any type of weapon. They fall into 

the hands of juveniles, criminals, and the mentally ill virtually 

every day of the year. And the Supreme Court has thrown aside 

seven decades of precedent to exacerbate this situation. 

From the documents that have been revealed thus far, I am encouraged that Solicitor Kagan holds stare decisis in high regard. 

We will see. She has shown determination to uphold the law even 

when she may personally disagree with it. 

For example, at Harvard, she expressed strong disagreement 

with ‘‘Don’t Ask, Don’t Tell.’’ But she allowed military recruitment 

to continue and, in fact, the number of recruits from the law school 

did not diminish. I believe it increased. And as Solicitor General, 

she defended the policy’s constitutionality, arguing in a brief that 

the Court should defer to Congress’s judgment. 

During the Clinton administration, she advised the Bureau of Alcohol, Tobacco, and Firearms that it could not ban importation of 

pre-1994 large-capacity ammunition feeding devices by Executive 

order. The Bureau of Alcohol, Tobacco, and Firearms and I both 

wanted to ban these imports, but she argued successfully that the 

law simply did not give the Bureau that authority. 

Elena Kagan has written that the confirmation process should be 

a substantive one, that the kind of inquiry that would contribute 

most to the understanding and evaluation of a nomination would 

include discussion first of the nominee’s broad judicial philosophy 

and, second, of her views on particular constitutional issues. I 

agree, and I look forward to a meaningful discussion this week. 

By all accounts, this nomination has been smooth so far. One 

newspaper even called it a ‘‘snooze fest.’’ If it is, it is because Elena 

Kagan is unquestionably qualified. Over 170,000 documents have 

unmasked her as an even-handed legal scholar with a sterling reputation. Each new set of documents makes it clearer that her views 

fall within the moderate mainstream of legal thinking in this country. So at this stage, I see no impediment to confirmation. I hope 

the week ends the same way. I look forward to proceeding. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you very much, Senator Feinstein. I 

also want to thank Senators. They have been keeping under the 

time limit, which means we are ahead of schedule. 

Senator Grassley. 

STATEMENT OF HON CHARLES E. GRASSLEY, A U.S. SENATOR 

FROM THE STATE OF IOWA 

Senator GRASSLEY. Thank you, Mr. Chairman. 

General Kagan, congratulations on your nomination. It is an extremely important appointment, obviously a real honor. I also welcome your family and friends. They are obviously proud of your 

nomination, and I am glad that they are here to support you. 

I am committed to ensuring that this process is fair and respectful but also thorough. The Constitution tasks our Senate with conVerDate Nov 24 2008 12:24 Aug 23, 2011 Jkt 067622 PO 00000 Frm 00023 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\67622.TXT SJUD1 PsN: CMORC
14 

ducting a comprehensive review of the nominee’s record and qualifications. You have been nominated to a lifetime position. Consequently the Senate has a tremendous responsibility to ensure 

that you truly understand the proper role of a Justice and the Supreme Court in our system of Government. We want to ensure 

that, if confirmed, you will be true to the Constitution and the laws 

as written. 

We had a nice meeting in my office. You have an accomplished 

academic and policy background. You have excelled at Princeton 

University and Harvard Law School. You were an Oxford scholar. 

You clerked on the D.C. Circuit and the Supreme Court. You were 

a law professor at the University of Chicago Law School as well as 

Dean of Harvard Law School. You were a lawyer here on the Judiciary Committee and then with President Clinton’s administration. 

You are now United States Solicitor General. Nobody can question 

such accomplishments. 

What is lacking from your background is any experience on any 

court or much experience as a practicing lawyer. We do not have 

any substantive evidence to demonstrate your ability to transition 

from being a legal scholar or political operative to a fair and impartial jurist. We will need to acquire that evidence through your 

writings and the positions you have taken over the years as well 

as your testimony. Answering our questions in a candid and forthright manner hopefully will fill that void. 

We know you cannot commit to ruling in a certain way or for a 

particular party. Our goal is to see if you will exercise judicial restraint. We want to know that you will exercise the preeminent responsibilities of a Justice by adhering to the law and not public 

opinion. 

Policy choices need to be reserved for those of us elected to the 

legislative branch of Government. It is our duty to confirm a nominee who has superior intellectual abilities but, more importantly, 

it is our duty to confirm a nominee who will not come with a results-oriented philosophy or an agenda to impose his or her personal politics and preferences from the bench. It is our duty to confirm a Supreme Court nominee who will faithfully interpret the 

law and Constitution without personal bias. 

The fact that you have not been a judge is not dispositive, but 

because of lack of judging experience, it is even more critical that 

we are persuaded that you have the proper judicial philosophy and 

will practice it. We must be convinced that you have the most important qualification of a Justice. That qualification is the ability 

to set aside your personal feelings and political beliefs so that you 

can administer equal justice for all in a dispassionate way. 

Your relatively thin record clearly shows that you have been a 

political lawyer. Your papers from the Clinton Library have been 

described as having—and these are not my words—‘‘a flair for the 

political’’ and ‘‘a flair for political tactics.’’ You have been described 

as having, another quote, ‘‘finely tuned political antennae’’ and ‘‘a 

political heart.’’ 

You were involved in a number of high-profile, hot-button issues 

during the Clinton Administration, including gun rights, welfare 

reform, abortion, and the Whitewater and Paula Jones controversies. A review of the material produced by the Clinton Library 

15 

shows that you forcefully promoted liberal positions and offered 

analyses and recommendations that often were more political than 

legal. Not only that, your Marshall memos indicate a liberal and 

seemingly outcome-based approach to your legal analysis. 

You have admitted that your upbringing steeped you in deeply 

held liberal principles. We should know whether, as you have said, 

you have ‘‘retained them fairly intact to this date.’’ 

A judge needs to be an independent arbiter, not an advocate for 

a political agenda. This point is absolutely crucial for Justices since 

the Supreme Court is not as constrained to follow precedent to the 

same extent as judges of lower courts. You will have the final say 

on the law. 

You have been a prominent member of President Obama’s team. 

In nominating you to be an Associate Justice, President Obama 

clearly believes that you measured up to his judicial empathy 

standard, a judge’s ability, in other words, to empathize with certain groups over others. Indeed, President Obama said that you 

credited your hero, Justice Marshall, with reminding you ‘‘that behind the law there are stories, stories of people’s lives as shaped 

by the law, stories of people’s lives as might be changed by the 

law.’’ 

This empathy standard has been soundly rejected because it endorses the application of personal politics and preferences when 

judges decide cases. It encourages judges to usurp the functions 

held by the executive and legislative branches of Government. A 

judge or Justice must unequivocally reject that standard. It does 

not comport with the proper role of a judge or an appropriate judicial method. We all know that is not what our great American tradition envisioned for the role of the judiciary. 

I will be asking you about your judicial philosophy, whether you 

will allow biases and personal preferences to dictate your judicial 

method. You once wrote that it ‘‘is not necessarily wrong or invalid’’ 

for judges to ‘‘try to mold or steer the law in order to promote certain ethical values and achieve certain social ends.’’ You have also 

praised jurists who believe that the role of a judge is to ‘‘do what 

you think is right and let the law catch up,’’ and, again another 

quote, ‘‘bridge the gap between law and society.’’ To me, this kind 

of judicial philosophy endorses judicial activism, not judicial restraint and hopefully what you have said before is not how you 

would be in regard to these quotes when you get to the Supreme 

Court. 

I yield back the balance of my time but ask permission to put 

a longer statement in the record. 

Senator KOHL. [Presiding.] Without objection. 

[The prepared statement of Senator Grassley appears as a submission for the record.] 

Senator KOHL. Senator Feingold. 

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR 

FROM THE STATE OF WISCONSIN 

Senator FEINGOLD. Thank you, Mr. Chairman. Ms. Kagan, welcome and congratulations on your nomination. Let me thank you 

in advance for the long hours you will spend with us this week. 

16 

Like others, let me start, of course, by offering my condolences 

to Justice Ruth Bader Ginsburg in the passing of her husband, 

Martin. Our thoughts and prayers are with her and her family 

today. 

And, of course, we join the people of West Virginia in mourning 

the loss of their Senator and our colleague, Robert Byrd. Senator 

Byrd cared deeply about the Senate and the Constitution, and we 

cannot help but think of him as we begin this process today. 

I want to thank Chairman Leahy and compliment him and his 

staff on your efforts to make this confirmation process so open and 

transparent. Nearly 200,000 pages of documents about the nominee 

have been made publicly available online. I am particularly pleased 

that you joined with the Ranking Member to request a complete 

and timely search of Presidential archives so that as much information about the nominee’s past work as possible could be reviewed by the Committee and the public before these hearings. And 

I think that former President Clinton deserves our thanks as well 

for his agreement to release to the Committee a significant amount 

of material that he was entitled to block under the Presidential 

Records Act. 

The Supreme Court plays a unique and central role in the life 

of our Nation. Those who sit as Justices have extraordinary power 

over some of the most important and most basic aspects of the lives 

of American citizens. The nine men and women who sit on the 

court have enormous responsibilities, and those of us on this Committee have a significant responsibility as well. 

Ms. Kagan, I hope you will be forthcoming in your answers so 

we can have the open and honest discussion of issues that the 

country deserves. 

In 2005, when we began our confirmation hearings for Chief Justice Roberts, the Court had not seen a new member for 11 years. 

Now we are beginning the fourth Supreme Court confirmation 

hearing in the last 5 years, and today for the first time we begin 

a hearing on a nomination that could result in three women sitting 

on the Supreme Court at one time. We have come a long way from 

the days when Justice Ginsburg was turned down for a prestigious 

clerkship because she was a woman and where Justice O’Connor 

graduated from Stanford Law School but no law firm would hire 

her as a lawyer, instead offering her a position as a secretary. 

I hope this is just the beginning. Women are increasingly outnumbering men on law school campuses across the Nation, and I 

am pleased that the Court is beginning to reflect that fact. 

I also hope that we will continue to see greater diversity on the 

Court in other ways, including representation from Midwestern 

and Western States. It is important that all Americans feel the 

Court represents their life experiences and their values, and I 

think one of the best ways to accomplish that is by selecting candidates for this position who reflect the full diversity of this great 

country. The Court that is now taking shape and that Elena Kagan 

will join if she is confirmed will shape the country for many years 

to come. It will address the most crucial legal issues affecting our 

National security and the freedoms of our citizens. It will decide 

what limits there are on how the people’s elected representatives 

can solve the difficult economic and social problems that the counVerDate Nov 24 2008 12:24 Aug 23, 2011 Jkt 067622 PO 00000 Frm 00026 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\67622.TXT SJUD1 PsN: CMORC
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try faces. It will confront questions of race that are as old as our 

Nation and as new as the changing demographics of the 21st century. 

Because these questions that will come before the Court in the 

next few decades are so weighty, it is unfortunate that a growing 

segment of Americans seem to have lost trust in the Court and its 

Justices. Supreme Court cases by their nature can divide the country. Important cases with far-reaching consequences are often decided now by a 5–4 vote. So it is absolutely essential that the public have confidence that those decisions are not made on the basis 

of an ideological or partisan political agenda. The fairness, objectivity, and good faith of Justices should be beyond question. 

So as Chairman Leahy suggested, when a decision like the one 

handed down earlier this year by a 5–4 vote in the Citizens United 

case uproots longstanding precedents and undermines our democratic system, the public’s confidence in the Court cannot help but 

be shaken. I was very disappointed in that decision and in the 

Court for reaching out to change the landscape of election law in 

a drastic and wholly unnecessary way. By acting in such an extreme and unjustified manner, the Court badly damaged its own 

integrity. By elevating the rights of corporations over the rights of 

the people, the Court damaged our democracy. 

Ms. Kagan, if you are confirmed, I hope you will keep this in 

mind. I hope you will tread carefully and consider the reputation 

of the Court as a whole when evaluating whether to overturn longstanding precedent in ways that will have such a dramatic impact 

on our political system. You have developed a reputation as someone who can reach out to those with whom you may not agree and 

work together, and I think that is a skill that will prove to be very 

useful and valuable if you are confirmed. 

You also have an impressive education, you have worked at the 

highest levels of Government, and you have taught and written 

about the law. I have no doubt that you understand our system of 

Government and the roles of the three branches. But, most importantly, I hope you appreciate the impact that the law has on the 

lives of all Americans. 

So it is my hope that your diverse experiences, your thoughtfulness and openness, and your talent for consensus building will 

allow you to see the long-term dangers to the Court and to the 

country of a decision like Citizens United and enable you, if confirmed, to convince your colleagues to avoid making similar mistakes in the future. 

I also hope that you will have the wisdom and the courage that 

the Justice you have been nominated to replace, Justice John Paul 

Stevens, showed time and time again in drawing the line against 

an executive branch that sought powers that endangered the individual rights and freedoms that our Constitution guarantees. 

Ms. Kagan, of course, judging is not easy. It is not just a matter 

of calling balls and strikes, because judges, and particularly Justices in the Supreme Court, are called upon to apply constitutional 

values that, as Justice Souter said recently, may well exist in tension with each other, not in harmony. In these hearings, you will 

have the opportunity to show the American people that you have 

the right combination of qualities and qualifications to make a good 

18 

Justice. I wish you well in that task, and I look forward to the conversation you will have not only with me but with my colleagues 

and with the country. 

Thank you, Mr. Chairman. 

Chairman LEAHY. [Presiding.] Thank you very much, Senator 

Feingold. 

Senator Kyl. 

STATEMENT OR OF HON. JON KYL, A U.S. SENATOR FROM THE 

STATE OF ARIZONA 

Senator KYL. Thank you, Mr. Chairman. Congratulations, Solicitor General Kagan, and welcome to the Committee. 

I would first note an agreement that I have with Senator Feingold. We do need more diversity on the Court. I note it has been 

3 years now since an Arizonan has been on the Supreme Court. 

Chairman LEAHY. I only confirm them. I do not pick them. 

[Laughter.] 

Senator KYL. Mr. Chairman, 1 year ago, we sat in this same 

room to consider the nomination of then-Judge Sotomayor. Although I could not ultimately support her nomination, I was 

pleased that she testified that the role of a judge is to put aside 

any biases or prejudices and to impartially apply the law to resolve 

disputes between parties. 

Judge Sotomayor explicitly rejected the empathy standard that 

had been espoused by President Obama, the standard where legal 

process alone is deemed insufficient to decide the so-called hard 

cases, the standard where the critical ingredient is supplied by 

what is in the judge’s heart. 

Perhaps because his first nominee failed to defend the judicial 

philosophy that he was promoting, the President has repackaged it. 

Now he says that judges should have a keen understanding of how 

the law affects the daily lives of the American people and know 

that in a democracy powerful interests must not be allowed to 

drown out the voices of ordinary citizens. The clear implication is 

that, at least in some kind of cases, judges should abandon impartiality and instead engage in results-oriented judging. Indeed, his 

own press secretary has confirmed the President’s results-oriented 

view. 

Exactly what kinds of results is the President looking for from 

his judges? Perhaps he wants judges who will ignore the serious 

constitutional questions surrounding some of his domestic legislation. Or maybe he wants judges who will use the bench to advance 

progressive goals that have been stalled in the political process. 

Whatever the President’s motivation, his view of the role of 

judges is wrong. Judges are to apply the law impartially, not take 

on social causes or cut down powerful interests. While they may 

disagree with legislative solutions to problems, it is not their prerogative to fix inequities. 

Part of our task is to determine whether Ms. Kagan shares President Obama’s results-oriented philosophy of judging or is instead 

committed to impartiality. This may be a more difficult task with 

Ms. Kagan than with other Supreme Court nominees who have 

come before the Committee, most of whom have had substantial judicial records to evaluate. 

19 

For instance, Judge Sotomayor issued 15,000 opinions in a decade and a half of district and circuit court service. Ms. Kagan has 

never served on any bench. 

Indeed, except for a brief 2-year stint in private practice and 1 

year as Solicitor General, Ms. Kagan’s entire career has been divided between academia and policy positions in the Clinton administration. Given this lack of experience practicing law, I was surprised that the American Bar Association awarded her a Well 

Qualified rating since the ABA’s own criteria for a judicial nominee 

call for, among other things, at least 12 years’ experience in the 

practice of law, and they mean actual practice of law, like former 

Justices Rehnquist and Powell. 

Not only is Ms. Kagan’s background unusual for a Supreme 

Court nominee, it is not clear how it demonstrates that she has, 

in the President’s words, a keen understanding of how the law affects the daily lives of the American people. One recent article 

noted that Ms. Kagan’s experience draws from a world whose signposts are distant from most Americans: Manhattan’s Upper West 

Side, Princeton University, Harvard Law School, and the upper 

reaches of the Democratic legal establishment. 

Her career in academia tells us relative little about her views on 

legal issues. In 14 years as a professor, she published only nine articles, two of which were book reviews, and her tenure in the academy was marred, in my view, by her decision to punish the military and would-be recruits for a policy, ‘‘Don’t ask, don’t tell,’’ and 

the Solomon amendment that was enacted by Members of Congress 

and signed into law by President Clinton. 

Despite this relatively thin paper trail, there are warning signs 

that she may be exactly the results oriented Justice President 

Obama is looking for. Consider, for example, the judges that Ms. 

Kagan says she most admires. Ms. Kagan has called Israeli Supreme Court Justice Aharon Barak her ‘‘judicial hero.’’ Justice 

Barak is widely acknowledged as someone who took an activist approach to judging. One respected judge, Richard Posner, described 

Barak’s tenure on the Israeli Supreme Court as ‘‘creating a degree 

of judicial power undreamed of even by our most aggressive Supreme Court Justices.’’ 

Ms. Kagan identified Thurgood Marshall as another of her legal 

heroes. Justice Marshall is a historic figure in many respects, and 

it is not surprising that as one of his clerks, she held him in the 

highest regard. Justice Marshall’s judicial philosophy, however, is 

not what I would consider to be mainstream. As he once explained, 

‘‘You do what you think is right and let the law catch up.’’ He 

might be the epitome of a results-oriented judge. And, again, Ms. 

Kagan appears to enthusiastically embrace Justice Marshall’s judicial philosophy, calling it, among other things, ‘‘a thing of glory.’’ 

In 2003, Ms. Kagan wrote a tribute to Justice Marshall in which 

she said that, in his view, ‘‘It was the role of the courts in interpreting the Constitution to protect the people who went unprotected by every other organ of Government, to safeguard the interests of people who had no other champion. The Court existed primarily to fulfill this mission.’’ 

And later, when she was working in the Clinton administration, 

she encouraged a colleague working on a speech about Justice MarVerDate Nov 24 2008 12:24 Aug 23, 2011 Jkt 067622 PO 00000 Frm 00029 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\67622.TXT SJUD1 PsN: CMORC
20 

shall to emphasize his ‘‘unshakable determination to protect the 

underdog, the people whom no one else will protect.’’ To me, this 

sounds a lot like what President Obama is saying now. 

And Ms. Kagan’s work as a Supreme Court clerk for Justice Marshall contains evidence that she shares his vision of the Constitution. In many of her memos to Justice Marshall, Ms. Kagan made 

recommendations concerning the disposition of cases which appear 

to be based largely on her own liberal policy preferences. 

For example, despite her view that one lower court’s decision was 

ludicrous and lacked a legal basis, Ms. Kagan nonetheless recommended that Justice Marshall vote to deny further review because to do otherwise, she wrote, ‘‘would likely create some very 

bad law’’ on abortion and/or prisoners’ rights. 

This kind of naked political judgment appears frequently 

throughout Ms. Kagan’s work as a judicial clerk. In another case, 

Ms. Kagan said that the Supreme Court should take the case because it is even possible that the good guys might win on this 

issue. I am concerned about her characterization of one party as 

‘‘the good guys.’’ Too often it sounds to me like Ms. Kagan shares 

the view of President Obama and Justice Marshall that the Supreme Court exists to advance the agenda of certain classes of litigants. 

In another case, Ms. Kagan wrote that there is no good reason 

to place an exclusionary rule before this Court which will doubtlessly only do something horrible with it. And in another memo 

laced with political considerations, Ms. Kagan wrote, ‘‘I see no reason to let this Court get a crack at this question.’’ She was even 

more explicit in a handwritten note, after reviewing the Government’s response in another case, saying, ‘‘I continue to believe that 

the facts did not support the arrest, but I cannot see anything good 

coming out of review of this case by this Court.’’ 

Ms. Kagan explains these recommendations as primarily channeling Justice Marshall, but the question is whether she really has 

any major differences with him and whether she sees anything 

wrong with taking the same approach. I see no evidence that that 

is the case. 

In addition my general concern about whether Ms. Kagan could 

decide cases impartially and without bias for or against certain 

parties, a surprising number of things in her relatively thin body 

of work do raise substantive concerns about various issues such as 

federalism, free speech, national security, and others. 

To take a last example, I am deeply troubled by her decision as 

Solicitor General to urge the Supreme Court to review and strike 

down an Arizona law designed to prevent employers from hiring illegal aliens. The Ninth Circuit unanimously upheld the law and 

the lower court decision because Federal immigration law explicitly 

allows States to sanction employers through their business licensing regimes. I think there are legitimate questions about whether 

the brief authorized by Ms. Kagan, which flies in the face of the 

plain language of the law and urges the Supreme Court to strike 

these enforcement provisions down, was motivated by political influence at the White House and within the Department of Justice. 

And I am convinced that without the urging of her office, the Court 

would not have granted cert in the case today. 

21 

Mr. Chairman, in conclusion, there is ample reason for members 

of this Committee to carefully scrutinize this nominee, scrutiny 

which she invited in her now famous Chicago Law Review article 

in 1995. Because she has no judicial record on which we can determine whether she is a results-oriented nominee or would approach 

each case as a neutral arbiter, I believe the burden is on the nominee to show that her record demonstrates that she can be a fair 

and impartial Justice rather than one who would have an outcomebased approach. 

I look forward to her testimony. 

Chairman LEAHY. Senator Specter. 

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM 

THE STATE OF PENNSYLVANIA 

Senator SPECTER. Thank you, Mr. Chairman. 

Solicitor General Kagan, I join my colleagues in welcoming you 

here this morning. With the passing of Senator Byrd earlier today, 

I was reminded of our hearings for Judge Bork and Senator Byrd’s 

participation in those hearings and a candid shot of him taken one 

Saturday when we had an hour Saturday morning session with 

Judge Bork, and his picture appeared on the front page of the Sunday New York Times, and he will be with us in these hearings and 

much of our thinking on the interpretation of the Constitution. 

This hearing presents a unique opportunity perhaps to have 

questions answered which have not been answered in the past. The 

article which you authored for the Chicago Law Review back in 

1995 is openly and specifically critical of Justice Ginsburg and Justice Breyer who, as you characterize it, ‘‘stonewalled.’’ You criticized the Judiciary Committee, and I think properly so, as ‘‘lacking 

seriousness and substance’’ in our approach to the hearings. And 

you used the phrase that the confirmation process ‘‘takes on an air 

of vacuity and farce.’’ You quote Senator Biden, then-Chairman, 

and myself expressing concerns that 1 day the Committee would 

‘‘rear up on its hind legs and reject a nominee who refused to answer questions for that reason alone.’’ So this is a unique hearing 

in that respect. 

The Court, regrettably, I think, has become an ideological battleground, and the activism is on both sides. As a prosecutor in the 

1960s, I watched the Constitution change virtually daily: search 

and seizure map, 1961; right to counsel, Gideon v. Wainwright, 1963; Miranda 1966. Activism. 

We have the Supreme Court now having adopted a test of determining constitutionality since 1996 on congruence and proportionality, an impossible standard except as Justice Scalia described it 

as a ‘‘flabby test which enables judicial legislation.’’ We have had 

nominees who sat where you sit not too long ago who said they 

would not ‘‘jolt the system,’’ ‘‘modesty,’’ and then a grave jolt to the 

system; assure this panel that the legislative finding of facts is not 

a judicial function, and then turn that on its head in Citizens 

United on a record that is a hundred thousand pages long and finding that there is no basis for a 100-year-old precedent, which was 

overturned. Certainly a jolt to the system. 

When Senator Biden was considering the nomination of Chief 

Justice Roberts, he said that he was qualified, but would vote 

22 

against him because of, as then-Senator Obama said, ‘‘overarching 

political philosophy.’’ 

Well, the Presidents make their selections based on ideology. I 

think that is a blunt fact of life, and the deference that I had considered in my earlier days in the Senate, I have come to the conclusion that Senators have the same standing to make a determination on ideology. 

It has become accepted that there should not be transgression 

into the area of judicial independence on how a case would be decided. There is an interesting case captioned Minnesota v. White, 

a Justice Scalia opinion in 2002, which struck down a requirement 

of the Minnesota Bar Association which prohibited judges from saying how they would decide cases. The Supreme Court said that was 

an infringement on First Amendment rights of freedom of speech. 

Now, that does not say that a judge should answer the question, 

but it does say that a bar association rule prohibiting answering 

the question is invalid, which leaves the judge, at least so far as 

that standard is concerned, with the latitude to answer the question. So that even on the ultimate question of how a case will be 

decided, that in your law review article you come very close to that 

when you talk about answering substantive legal issues, really 

right on the line of how you would decide a case. 

But if we are precluded from asking how decisions would be— 

what decision would be made on grounds of judicial independence 

and the precedent on that, I do think it is fair for us to ask whether the Supreme Court would take a case. The Congress has the authority to direct the Supreme Court on cases which must be 

heard—flag burning case, McCain-Feingold, and many, many others—so that the Court’s discretion is limited there if there is a Congressional direction. 

I think it is fair from that proposition to ask nominees whether 

they would take cases. I have spoken at length on the floor about 

what I consider the inappropriate decline in the number of cases 

considered. A hundred years ago, a little more, in 1886, the Supreme Court decided 146 cases, 146 opinions. A little more than 20 

years ago, 1987, 146 opinions. Last year, last term, 78 arguments, 

75 opinions. A lot of circuit splits, important cases, are not taken 

up by the Supreme Court. The Supreme Court declined to hear the 

conflict which, arguably, is the most serious clash between 

Congress’s Article I powers under the Foreign Intelligence Surveillance Act, which sets the exclusive means for getting a warrant, listening to a wiretap, probable cause, and the President’s 

warrantless wiretap program justified under Article II. A Detroit 

Federal judge said it was unconstitutional. The Sixth Circuit 

ducked it, with a standing decision 2–1, with admittedly the dissenting opinion much stronger, application for cert denied. And this 

is something I discussed with you in our meeting, for which I 

thank you. I sent you a series of letters on issues which I intend 

to ask you about, and that was one of them. 

I was concerned about your decisions as Solicitor General on the 

case involved the Holocaust victims suing an Italian insurance 

company, and the Second Circuit bows to the executive position, 

saying, well, that ought to be decided between Italy and the United 

23 

States on how that is to be handled. I think that is wrong, but at 

least the Supreme Court ought to decide it. 

I am not going to ask you how you would decide the case, but 

would you consider it. A case involving the survivors of victims of 

9/11 has not been heard. A petition for cert from the Second Circuit, the Second Circuit said, well, the sovereign immunities case 

does not apply because Saudi Arabia has not been declared a terrorist state. That has really got nothing to do with the Act, congressional intent. Torts are not covered by sovereign immunity. 

You disagreed with the Second Circuit but said the acts occurred 

outside of the country, a distinction that I do not understand if the 

consequence is that the Towers and 3,000 Americans are killed. 

Certainly the Sovereign Immunities Act ought to make Saudi Arabia subject to suit. But I would not ask you how you would decide 

the case, but if you would take it up. 

Another issue which will not be resolved today, and perhaps 

never, is how to see to it that the nominees who make statements 

here on congressional power and on stare decisis follow up on it. 

And maybe the closest approach is the idea of televising. In our 

meeting you said you would favor televising the Court. Not exactly 

the same, but Brandeis talked about sunlight and publicity being 

the best disinfectant. Well, it is not a disinfectant we are looking 

for here, but to hold nominees who answer questions here to follow 

through when they are on the Court. 

Thank you. 

Chairman LEAHY. Thank you very much. 

Senator Graham. 

STATEMENT OF HON. LINDSEY GRAHAM, A U.S. SENATOR 

FROM THE STATE OF SOUTH CAROLINA 

Senator GRAHAM. Thank you, Mr. Chairman. 

Congratulations. I think it will be a good couple of days. I hope 

you somewhat enjoy it, and I think you will. 

Like everyone else, I would like to acknowledge the passing of 

Senator Byrd. He was a worthy ally and a very good opponent 

when it came to the Senate. My association with Senator Byrd, 

during the Gang of 14, I learned a lot about the Constitution from 

him, and as all of our colleagues will remember, just a few years 

ago we had a real conflict in the Senate about filibustering judicial 

nominees. And it was Senator Byrd and a few other Senators who 

came up with the extraordinary circumstances test that would say 

that filibusters should only be used in extraordinary circumstances 

because elections have consequences. And Senator Byrd was one of 

the chief authors of the language defining what an extraordinary 

circumstance was. So I just want to acknowledge his passing. It is 

going to be a loss to the Senate. 

And the thing that we all need to remember about Senator Byrd 

is that all of us are choosing to judge him by his complete career, 

and history will judge him by his complete career, not one moment 

in time, and that is probably a good example for all of us to follow 

when it comes to each other and to nominees. 

Now, you are the best example I can think of why hearings 

should be probative and meaningful. You come with no judicial 

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mittee without having been a judge. But it does, I think, require 

us and you to provide us a little insight as to what kind of judge 

you would be. You have had very little private practice, 1 year as 

Solicitor General, and a lot of my colleagues on this side have 

talked about some of the positions you have taken that I think are 

a bit disturbing, but I would like to acknowledge some of the things 

you have done as Solicitor General that were, I thought, very good. 

You opposed applying habeas rights to Bagram detainees. You 

supported the idea that a terrorist suspect could be charged with 

material support of terrorism under the statute, and that was consistent with the law of wars history. So there are things you have 

done as Solicitor General that I think merit praise, and I will certainly, from my point of view, give you a chance to discuss those. 

As Dean of Harvard Law School, you did two things: you hired 

some conservatives, which is a good thing; and you opposed military recruitment, which I thought was inappropriate, but we will 

have a discussion about what all that really does mean. It is a good 

example of what you bring to this hearing, a little of this and a little of that. 

Now, what do we know? We know you are very smart. You have 

a strong academic background. You have bipartisan support. The 

letter from Miguel Estrada is a humbling letter, and I am sure it 

will be mentioned throughout the hearings, but it says a lot about 

him. And it says a lot about you that he would write that letter. 

Ken Starr and Ted Olson have suggested to the Committee that 

you are a qualified nominee. 

There is no doubt in my mind that you are a liberal person. That 

applies to most of the people on the other side, and I respect them 

and I respect you. I am a conservative person, and you would expect a conservative President to nominate a conservative person 

who did not work in the Clinton administration. 

So the fact that you have embraced liberal causes and you have 

grown up in a liberal household is something we need to talk 

about, but that is just America. It is OK to be liberal. It is OK to 

be conservative. But when it comes time to be a judge, you have 

got to make sure you understand the limits that that position 

places on any agenda, liberal or conservative. 

Your judicial hero is an interesting guy. You are going to have 

a lot of explaining to do to me about why you picked Judge Barak 

as your hero, because when I read his writings, it is a bit disturbing about his view of what a judge is supposed to do for society 

as a whole. But I am sure you will have good answers, and I look 

forward to that discussion. 

On the war on terror, you could, in my view, if confirmed, provide the Court will some real-world experience about what this 

country is facing, about how the law needs to be drafted and crafted in such a way as to recognize the difference between fighting 

crime and fighting a war. So you, in my view, have a potential 

teaching opportunity, even though you have never been a judge, because you have represented this country as Solicitor General at a 

time of war. 

The one thing I can say without certainty is I do not expect your 

nomination to change the balance of power. After this hearing is 

over, I hope the American people will understand that elections do 

25 

matter. What did I expect from President Obama? Just about what 

I am getting. And there are a lot of people who are surprised. Well, 

you should not have been if you were listening. 

So I look forward to trying to better understand how you will be 

able to take political activism, association with liberal causes, and 

park it when it comes time to be a judge. That to me is your challenge. I think most people would consider you qualified because you 

have done a lot in your life worthy of praise. But it will be incumbent upon you to convince me and others, particularly your fellow 

citizens, that whatever activities you have engaged in politically 

and whatever advice you have given to President Clinton or Justice 

Marshall, that you understand that you will be your own person, 

that you will be standing in different shoes where it will be your 

decision to make, not trying to channel what they thought. And if 

at the end of the day you think more like Justice Marshall than 

Justice Rehnquist, so be it. The question is: Can you make sure 

that you are not channeling your political agenda, your political 

leanings when it comes time to render decisions? 

At the end of the day, I think the qualification test will be met. 

Whether or not activism can be parked is up to you. And I look at 

this confirmation process as a way to recognize that elections have 

consequences and the Senate has an independent obligation on behalf of the people of this country to put you under scrutiny, firm 

and fair, respectful and sometimes contentious. 

Good luck. Be as candid as possible, and it is OK to disagree 

with us up here. 

Thank you. 

Chairman LEAHY. Thank you, Senator. 

Next, Senator Schumer. 

STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR 

FROM THE STATE OF NEW YORK 

Senator SCHUMER. Thank you, Mr. Chairman. And I, too, want 

to note the passing of our friend and leader Senator Byrd. Senator 

Byrd’s fierce devotion to the Constitution hovers over this hearing, 

and nothing could be more appropriate on the sad day of his death 

than holding this hearing where the first branch of Government 

gives advice and consent to the second branch of Government as we 

fill a position on the third. 

Welcome, Madam Solicitor General. There is only so much we 

can do to elaborate on your qualifications. Solicitor General 

Kagan’s achievements as well as her record are by now well known 

to this Committee, and by the end of the week, they will be well 

known to the American people. Frankly, there are not many blanks 

left to fill in. Given how forthcoming General Kagan has already 

been, I would think that we could finish this hearing in one round 

of questioning. 

Now, I am and I have always been a strong advocate for asking 

nominees searching questions, and I expect nominees to answer. I 

also believe that my colleagues on the other side of the dais have 

a right and a duty to ask tough, probative questions. But I also believe that the quality of answers matters more than the quantity, 

and we can expect very high quality from you, General Kagan. 

26 

Over the last several weeks, we on the Judiciary Committee have 

had the opportunity to get to know General Kagan, and she has 

been very forthcoming in every way. I am confident that the American people will learn, as we have, that you represent the best this 

country has to offer. 

As we begin these hearings, I have three points I would like to 

make. 

First, a California hearing, no matter who is sitting in the chair 

over there, has the potential to be like eating spaghetti with a 

spoon. It is a lot of work, and it is hard to feel satisfied at the end. 

I believe that this will not be our experience this week with this 

nominee. General Kagan has set herself a high bar for providing 

material to this Committee already. During her previous confirmation hearing, for example, she explained clearly and plainly her 

views about national security and terrorism, her views about the 

Second Amendment, as well as her views about these very confirmation hearings, which, in the past, she herself has criticized for 

being exercises. 

In her questionnaire for this committee, she explained in unprecedented detail her work in the Solicitor General’s office, at Harvard 

Law School, and in the Clinton Administration. 

She has also provided unprecedented supporting documentation. 

She gave us, from her time as Solicitor General, nearly 150 briefs 

by her office; from her time at Harvard, all of her previous academic work, and all of the letters, e-mails, and press releases that 

went out during her tenure as dean; from her work in the Clinton 

Administration, over 170,000 pages of documents, including 80,000 

pages of e-mails, which is more than twice the material received in 

connection with the nominations of Chief Justice Roberts and Justice Alito. 

In fact, we even have this nominee’s senior thesis, her graduate 

thesis, nearly 70 articles she authored for the Daily Princetonian 

as a college student, almost 200 speeches, and another 200 interviews. 

The only thing, as far as I can tell, that we do not have is her 

kindergarten report card. But I respectfully submit to my colleagues that if they cannot thoroughly evaluate General Kagan on 

the record we have, there is no record nor nominee who could satisfy them. 

So we already have a clear idea of her record and what this hearing will be like, which brings me to my second point, which is why 

this hearing is so crucially important. 

We need a Justice who can create moderate majorities on this 

immoderate Supreme Court. I am going to be blunt about this. We 

have a highly fractured Court, with an often rarified way of approaching the law. The rightward shift of the Court under Chief 

Justice Roberts is palpable. 

In decision after decision, special interests are winning out over 

ordinary citizens. In decision after decision, this Court bends the 

law to suit an ideology. Judicial activism now has a new guise— 

judicial activism to pull the country to the right. 

These rulings have real world consequences, make no mistake 

about it. They affect the remedies of women, who, for years, earned 

less money than men in the same job. They undermine the rules 

27 

that Congress and agencies can put in place to keep the water that 

we drink and the air that we breathe safe for our children, and 

they rent the very fabric of our democratic system. 

I am concerned that we will soon find ourselves back in the 

Lochner era of activist judging. In 1905, squarely in the age of the 

robber barons, a very right-wing majority of Justices held, in the 

Lochner case, that the people of New York State could not pass 

laws that limited the work week to 60 hours. The Court held this 

because business had the freedom under the Constitution to contract however they saw fit, even if the public safety was at stake. 

I fear that the recent decision in Citizens United is a step backwards toward Lochner, backwards to the era of conservative Supreme Court activism that most egregiously undermined even the 

most basic regulation of safety and of welfare. In allowing corporations to spend unlimited sums to influence elections, Citizens 

United showed just how much the current conservative bloc on the 

Court, in its zeal to bend the Constitution to an ideology, has lost 

sight of the practical consequences of some of its decisions. 

As Justice Stevens wrote in his dissent, ‘‘The Court’s opinion is 

a rejection of the common sense of the American people.’’ 

It does not end with Citizens United. There is case after case 

after case which we could demonstrate and in these cases, it is the 

American people who continue to bear the brunt of these types of 

rulings. 

But there is hope, which brings me to my third point. Solicitor 

General Kagan brings both moderation and pragmatism to a Court 

that is sorely in need of both. Her down-to-earth views and her exceptional leadership skills mean this: Elena Kagan has great potential to moderate a Court that is veering out of the mainstream 

and bringing it back to the 21st century. 

She is the right person at the right time. We have seen several 

examples of Elena Kagan’s moderation and pragmatism already. 

The one that I like best is a practical one, of course. 

While serving as the first dean of Harvard Law School, a difficult 

enough task by itself, she was able to repair a deeply and ideologically divided faculty. Because of Dean Kagan’s acumen and great 

good sense, she broke a hiring logjam, often between the right and 

the left, and Harvard was able to hire 43 new professors during her 

tenure, including notable conservatives like Jack Goldsmith and 

John Manning. 

She diversified the faculty, advanced academic scholarship, improved the quality of the school, and improved the tone of the 

school, as well. 

Dean Kagan routinely received warm receptions and large ovations from the Federalist Society, the conservative legal association 

that gave rise to many of the judicial nominees of President Bush. 

They knew her views. They knew that her views were largely different from theirs, as Senator Graham has mentioned. But they respected her pragmatism and her moderation. 

Time after time after time, pragmatism and moderation have 

worked together to hold Elena’s views of the law and the world. 

She managed to find a middle ground in the military recruiting 

controversy, a situation that has already been discussed. 

28 

But let us note that during Dean Kagan’s tenure, military recruiting at the law school remained steady or improved, while she, 

at the same time, voiced her disagreement with an opinion. Her actions are not the actions of an ideologue. 

So let me say one final word about General Kagan’s voluminous 

record as she worked as a lawyer for President Clinton and then 

as a policy adviser. All of a sudden, these are being held as strikes 

against her. Nothing about her previous jobs should be viewed as 

undermining her moderate credentials or calling her ability to understand the role of Supreme Court justice. 

It is a fact that a Presidential nominee with a political job on a 

resume is far from unprecedented. Chief Justice Rehnquist served 

in President Nixon’s Office of Legal Counsel. Justice Thomas 

served in a Republican Department of Education and the EEOC before his appointment. And like General Kagan, 38 justices never 

served as judges before serving on the High Court, fully a third of 

all justices who have served. 

What General Kagan does bring to the table is unprecedented 

practical experience. At Harvard, she ran the equivalent of a large 

business, a budget of $160 million, 500 employees. She had a master interrelations with thousands of students and hundreds of faculty, all of whom came from diverse backgrounds and viewpoints. 

General Kagan is simply a terrific antidote to the lack of practical, real word understanding of the Court. She is brilliant, she is 

thoughtful, and I think she is straight out of central casting for 

this job. 

I look forward to hearing more from you, Solicitor, this week. 

Chairman LEAHY. Thank you very much. 

Senator Cornyn. 

STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM 

THE STATE OF TEXAS 

Senator CORNYN. Thank you, Mr. Chairman. 

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

An e-mail with a quote came across my in-box this morning that 

I thought of as I heard the statements being made on both sides 

here: ‘‘Liberty is not a cruise ship full of pampered passengers. Liberty is a man of war and we’re all the crew.’’ 

I do not know why I thought of that, given the nature of these 

hearing so far, but, of course, we will be talking about the different 

roles we each play on that crew. 

In the last 5 years, this committee has met four times to consider 

the nomination of a new Supreme Court Justice. Given our recent 

hearings, I think it is vital to recall the core principles that should 

guide the committee in carrying out our responsibilities. 

There are two visions of the role of judges in America, I believe, 

including the Supreme Court. I will call them the traditional vision 

and the activist vision. We have heard those terms thrown around 

a lot. I will tell you what I mean by them and we will see if you 

and I can agree. 

In the traditional vision, the courts enforce a written Constitution. They enforce the constitutional guarantees that the Framers 

wrote into the text of the Constitution. 

29 

Under this traditional view, a court, including the Supreme 

Court, has a limited, some have called it a modest role, albeit very 

important. No court of law under this view has the authority to invent new rights just because the judge happens to think that it is 

a good idea. 

That is important, because the powers to make new laws are reserved to the people, not to judges, not even the Justices of the Supreme Court of the United States. 

When the Supreme Court creates new rights, the Justices, in effect, take away the power of the people to govern themselves 

through their elected representatives. That, in my view, is not how 

our democracy is supposed to work. 

Of course, that does not mean that the meaning of the Constitution remains fixed. Indeed, the Framers thought of this in Article 

5. The Constitution tells us there are two different ways to change 

the Constitution. First, Congress can propose amendments that all 

the states can approve or a requisite number can approve; second, 

the Congress can call for a constitutional convention to propose 

amendments; either way, preserving the ultimate power of the people to control their Constitution, not the courts. 

That, as I said, is what I would call the traditional view. 

We can contrast that traditional vision with the activist vision. 

Under the activist vision, the Supreme Court is free to change the 

Constitution when they see a problem they wish to solve. 

According to this view, the Constitution is sometimes called a living document. It is a living document because the judges change 

it when they want to, without requiring the consent of the people. 

This activist vision takes the power of the people to make the 

law and change the law and gives that power to a judiciary that 

is unelected and that imposes its will on the rest of us. 

This stands in stark contrast to the Founders’ vision, perhaps 

best expressed in Federalist No. 78, that the judiciary would be 

the, quote, ‘‘least dangerous branch,’’ closed quote, to the political 

rights in the Constitution, because, in Hamilton’s memorable 

words, ‘‘The judiciary has no influence over either the sword or the 

purse, no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be 

said to have neither force nor will, but merely judgment.’’ 

Unfortunately, some members of the Supreme Court today seem 

to embrace the activist role. We saw it just last month in the case 

of Graham v. Florida, a 5–4 decision overturning the judgment of 

the Florida legislature that allowed the possibility of a life sentence 

for robberies. 

Three justices, Justices Stevens, Ginsberg, and Sotomayor, explained that their interpretation of the Constitution could change 

year-to-year and, quote, ‘‘will never stop,’’ closed quote, changing. 

Sometimes, judicial activists create new rights and sometimes 

they actively undermine the Constitution in the process. 

For example, we can see the different approaches to constitutional interpretation just today in the Court’s decision in McDonald 

v. City of Chicago. The five justices who voted to apply the Second 

Amendment to the Chicago gun ordinance relied on history and 

precedent. On the other hand, the four justices who voted not to 

apply the Second Amendment instead relied heavily on public polVerDate Nov 24 2008 12:24 Aug 23, 2011 Jkt 067622 PO 00000 Frm 00039 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\67622.TXT SJUD1 PsN: CMORC
30 

icy arguments, the kind that you would find debated in the halls 

of Congress. 

The question raised by every Supreme Court nomination, I believe, is whether the nominee believes in the traditional role or the 

activist vision. Does a nominee believe that the Court should make 

policy like Congress, even though they are not accountable to the 

people for their actions via elections? 

Will the nominee enforce the written Constitution and not invent 

new rights, or will the nominee see it as his or her job to change 

the Constitution to align it with their policy preferences? 

Solicitor General Kagan, as you have heard and as you know, because you have never been a judge, what we know about you begins and largely ends with your impressive resume, although one 

that does not have judicial experience. 

We know that you were a law clerk for two Federal judges, a significant professional accomplishment in and of itself, and we know 

you served in the Clinton Administration as an adviser on many 

hot-button political issues, including abortion, gun rights, and affirmative action. 

We also know, as has already been discussed to some extent, that 

you have talked about your judicial heroes. One, of course, is Justice Thurgood Marshall, for whom you served as a law clerk. 

Thurgood Marshall was, of course, a famous lawyer for, among 

other things, having won the landmark civil rights case, Brown v. 

Board of Education. But it is his judicial philosophy that concerns me, and this has 

already been mentioned. It is clear that he considered himself a judicial activist and was unapologetic about it. As we have already 

heard, he described his judicial philosophy as, quote, ‘‘Do what you 

think is right and let the law catch up,’’ closed quote. 

Solicitor General Kagan, we know the President has the right to 

nominate anyone he chooses. It is noteworthy, however, that 

among his nominees, many of whom I have supported, President 

Obama has chosen several nominees that I cannot support because 

they are clearly outside the judicial mainstream. 

One pending nominee bent the rules to keep a confessed serial 

killer from the death penalty. Another pending nominee has argued 

that there is a constitutional right to welfare payments. A third 

nominee has argued that Federal judges should internationalize 

our law, matching it to views abroad. 

These are not mainstream positions and, in my view, they are 

disqualifying positions. 

One challenge of this hearing is that even nominees that have 

expressly rejected the activist view before this committee, let us 

call it a confirmation conversion, have changed their tune after 

confirmation. Last year, Justice Sotomayor came before the Committee and pledged allegiance to the traditional view. 

She testified that judges cannot rely on what is in their heart. 

They do not determine the law. The job of a judge is to apply the 

law. 

But in her first term on the Court, just finished today, Justice 

Sotomayor has voted with the liberal bloc of the Court, which unabashedly embraces the activist vision, about 90 percent of the 

time. 

31 

You, as you recall, wrote in your 1995 law review article that the 

critical inquiry of judicial confirmation hearings must be the perspective the nominee would add and the direction in which she 

would move the institution. 

I agree with that. It is important in these hearings to find out 

whether you would move the Court in a traditional or an activist 

direction. The Constitution’s protections, such as federalism, the 

Takings Clause, and the Second Amendment right to keep and 

bear arms, are just a few areas of obvious inquiry. 

Solicitor General, I must say that the burden is on you. I hope 

you can persuade us of the path you would take if you are confirmed to the Supreme Court. 

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

Thank you. 

Chairman LEAHY. Thank you very much. 

Senator Durbin. 

STATEMENT OF HON. RICHARD DURBIN, A U.S. SENATOR 

FROM THE STATE OF ILLINOIS 

Senator DURBIN. Thank you a lot, Mr. Chairman. 

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

This is not your first hearing on a Supreme Court justice nominee. If my notes are correct, some 17 years ago, you were sitting 

at the Senate Judiciary Committee hearing on Ruth Bader Ginsburg’s nomination to serve on the Supreme Court. Your capacity 

was as a staff attorney for the chairman of the committee, Joe 

Biden. So you have seen this exercise as a staffer and now in this 

revered position as the nominee of the President of the United 

States. 

At that hearing on Justice Ginsburg, my former colleague and 

friend, Paul Simon, set forth a standard for assessing Supreme 

Court nominations, which I have mentioned from time to time. He 

said to Justice Ginsburg, ‘‘You face a much harsher judge . . . than 

this committee and that is the judgment of history. And that judgment is likely to revolve around the question: Did she restrict freedom or did she expand it? ’’ 

It is a simple calculus, it was for Senator Simon and it is for me, 

as well. I used the standard and asked the same question of Justices Alito, Roberts and Sotomayor. 

I think it is an important question. The nine men and women on 

the Supreme Court serve for a lifetime and they have a significant 

impact on the lives of every American. 

In our most celebrated Supreme Court decisions, we have seen 

an expansion of freedom, Brown v. Board of Education, Loving v. 

Virginia, Griswold v. Connecticut; and, in the most infamous decisions, restrictions on our freedom, Dred Scott, Plessy v. Ferguson, 

and Korematsu. 

Now, of course, we are in a new generation and a new time, and 

many questions are going to be raised. I think we have heard repeatedly from the other side of the aisle their loyalty to the concept 

of traditionalism, their opposition to judicial activism. 

32 

I have two words for them: Citizens United. Earlier this year, in 

the Citizens United case, a 5–4 majority of the Court demanded to 

hear arguments on an issue that was not posed by the parties in 

the case, reversed its own precedents, ignored the will of Congress, 

and ruled that corporations and special interests can spend unlimited amounts of money to affect elections. 

This decision has the power to drown out the voices of average 

Americans. Justice John Paul Stevens wrote, in the Citizens United 

dissent, and I quote, ‘‘Essentially, five Justices were unhappy with 

the limited nature of the case before us, so they changed the case 

to give themselves an opportunity to change the law.’’ 

If that is not judicial activism, what is? And it was espoused and 

sponsored by men who had stood before us under oath and swore 

they would never engage in judicial activism. That is the reality. 

There is something that has occurred today which has come as 

somewhat of a surprise to me. On at least three or four occasions, 

I have been disappointed by my Republican colleagues warning us 

that you just might follow in the tradition of Justice Thurgood 

Marshall. Well, Ms. Kagan, you deserve to be judged on your own 

merits, not on the basis of the strength and weakness or philosophy 

of any judge for whom you clerked. 

But before I leave this subject, let me say, for the record, America is a better nation because of the tenacity, integrity, and values 

of Thurgood Marshall. Some may dismiss Justice Marshall’s pioneering work on civil rights as an example of empathy; that somehow, as a black man who had been a victim of discrimination, his 

feelings became part of his passionate life’s work; and I say, thank 

God. 

The results which Justice Marshall dedicated his life to broke 

down barriers of racial discrimination that had haunted America 

for generations. For those who would disparage his life work on the 

Court and as a solicitor general and arguing before the Court, the 

record is pretty clear. Thurgood Marshall argued 32 cases before 

the Supreme Court of the United States and won 29 of them, earning more victories in the Supreme Court than almost any other individual. 

And I might also add, his most famous case, Brown v. Board of 

Education, if that is an activist mind at work, we should be grateful as a nation that he argued before this Supreme Court, based 

on discrimination in this society, and changed America for the better. 

And I know that my good friend, Judge Abner Mikva’s name has 

been mentioned, as well, and I will just say, briefly, his political 

views are not veiled. They are well known, when he served in Congress and since. 

But my colleagues will find universal acclaim for Abner Mikva’s 

record as a thoughtful, fair judge of the highest level of integrity 

and intelligence, and we share a high regard for this extraordinary 

American and the kind words you have had to say about him. 

There will be questions raised, as well, about modesty and humility in your role, if you are confirmed, and I believe you will be, 

to serve on the Supreme Court. I think a study of judicial ideology 

conducted recently by the seventh circuit Judge Richard Posner in 

my home State of Illinois is worth noting. 

33 

Judge Posner, who is no liberal himself, ranked the 43 justices 

who have served on the Supreme Court since 1937 from the most 

liberal to the most conservative. He concluded that four of the five 

most conservative justices since 1937 are on the Court at this moment: Clarence Thomas, Anthony Scalia, John Roberts, and Sam 

Alito. 

Our Supreme Court is badly in need of a person with your skill 

and your knowledge and your background, who can reach across 

the ideological aisle in pursuit of expanding our freedom. 

The Court needs a person who has an ability to build consensus 

and find common ground. Elena Kagan, you are such a person. As 

the Solicitor General of the United States, you have defended bipartisan laws like McCain-Feingold campaign finance, and you 

have definitely balanced competing interests within the Federal 

Government. 

As dean of the Harvard Law School, your efforts to reach out to 

conservative faculty and students are well documented. Professor 

Charles Fried, who served as President Reagan’s Solicitor General 

and who now teaches at Harvard, praised you for ‘‘recruiting excellent teachers from across the ideological spectrum’’ and for your effort to ‘‘make students with every point of view feel as if they were 

part of an intellectual and professional enterprise.’’ 

Professor Fried told the story about your speech to the Federalist 

Society, in which you opened by saying, ‘‘I love the Federalist Society, but you are not my people.’’ 

Well, they took your statement out of context and made tee 

shirts that they wore around the campus, saying, ‘‘I love the Federalist Society,’’ with your name, Elena Kagan, below that. But it 

is an indication of a friendship and an effort to reach out even to 

those whose opinion you might not share. 

Earlier in your career, you worked as a counselor to President 

Clinton, working with Republicans to find bipartisan solutions on 

tough issues, like tobacco regulation, religious liberty, and community policing. 

In the 170,000 pages of documents from your White House service that were turned over to this committee, there is ample evidence of your efforts to bridge the gaps, the political gaps that 

haunt us in America. 

In closing, I would like to recognize the justice whom you would 

replace. Justice John Paul Stevens, a native of Chicago, a town I 

am honored to represent, has been one of the wisest and most accomplished jurists of our time. The third longest serving justice in 

the history of the United States, Justice Stevens’ judicial philosophy may be hard to label, but his integrity is rock solid. 

A lifetime in the law and the courage to speak his mind made 

him a national treasure on our highest court. 

General Kagan, I believe that you can follow in that tradition. I 

look forward to your testimony. 

Thank you. 

Chairman LEAHY. Senator Durbin, thank you very much. 

Senator Coburn, you are next. 

34 

STATEMENT OF HON. TOM COBURN, A U.S. SENATOR FROM 

THE STATE OF OKLAHOMA 

Senator COBURN. Thank you, Mr. Chairman. 

Welcome, and welcome to your family; look forward to our time 

together this week. 

The purpose of these hearings, for me, is not to examine or 

evaluate your professional qualifications. I think those are obvious. 

But for me, it is to determine whether or not you have an appropriate judicial philosophy. 

You and I discussed the fact that I gave a speech about a week 

ago on the floor that kind of lined up with what you said in 1995, 

the very fact that we have a relatively new phenomenon. For the 

vast majority of this country’s history, we did not have these hearings. 

As a matter of fact, we looked at the record. We had individual 

meetings with nominees and they were voted on, and we did not 

have this dance back and forth, and, much as you described, the 

board hearings were what you thought were fantastic. And I think 

that the quote was, ‘‘The Bork hearings were great. The Bork hearings were educational. The Bork hearings were the best thing that 

ever happened to constitutional democracy.’’ 

I am not sure I would go that far. But you and I are kindred 

spirits when it comes to whether or not the American people ought 

to know you and know what you think and know what you believe. 

And to do less than that, as far a this Committee is concerned, we 

have done a disservice. 

All the back-and-forth you have heard about activist, not activist, 

everything else, the fact is we know elections have consequences. 

There is a group in America, though, that believes in strict 

constructionism. 

We actually believe the founders had preeminent wisdom, that 

they were very rarely wrong, and that the modern idea that we can 

mold the Constitution to what we want it to be rather than what 

that vision was is something that is antithetical to a ton of people 

throughout this country. 

So I really am going to want to know a lot about specific issues 

and as we talk about it, the question I would ask you to ponder 

is, should the American people really know what you believe before 

we install you for lifetime tenure on the Supreme Court. 

What obligation do we have to make sure they know what your 

thinking is? Whether liberal or conservative, the fact is they ought 

to know Elena Kagan by the time of these hearings. And the only 

way they will know that—and you asked me for advice when we 

finished and my advice to you is to be absolutely, completely honest 

with this committee. 

And it is really not for the committee, because as our country is 

divided today, we are polarized. We are polarized regionally. We 

are polarized politically. What we have to have in whoever comes 

to the Court is a confidence in their heart that they are going to 

do what is best in the long term for this country based on what 

that document says. 

So my hope is that with your stellar academics and your stellar 

intellect, that your patriotism will be just as stellar; that, in fact, 

you will set a new course, to set a new precedent for this ComVerDate Nov 24 2008 12:24 Aug 23, 2011 Jkt 067622 PO 00000 Frm 00044 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\67622.TXT SJUD1 PsN: CMORC
35 

mittee so that, once again, the American people can find out what 

a justice is all about. 

It is obvious. This is my fourth Supreme Court hearing. It is obvious that what we have heard in the previous hearings are not 

predictive of the decisions of the nominees that came before the 

hearing, and that is schizophrenic. 

Why should we have this dance if we are not going to find out 

real answers about real issues, about what you really believe? 

So my hope is that you will really do something great for the 

Senate and great for the country and set a new standard, and 

where you really answer questions. We are not asking you to violate judicial canons, but really give us answers so the American 

people can rest assured that when you go on the Court, if you do, 

that they know Justice Kagan and they know what—and they believe what she said, because the real measure is not what you say 

here. 

The real measure of the Supreme Court justices that we put on 

there is whether or not they have gained or lost the confidence of 

the vast majority of Americans in this country. 

My hope is, if you are a justice, that the vast majority, not a 

small majority, but the vast majority will learn to trust your judgment as you embrace the Constitution. 

Mr. Chairman, I have a full statement I would like for the 

record, and I yield back. 

[The prepared statement of Senator Coburn appears as a submission for the record.] 

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

I have just talked with Senator Sessions about this. What I will 

do is I want to yield to Senator Cardin. When Senator Cardin finishes his opening statement—no pressure on you here, Senator 

Cardin. When you finish your opening statement, we will take a 

10-minute break. 

Senator Cardin. 

STATEMENT OF HON. BEN CARDIN, A U.S. SENATOR FROM THE 

STATE OF MARYLAND 

Senator CARDIN. Thank you, Chairman Leahy. 

Solicitor General Kagan, welcome back to the Judiciary Committee. Last year, I had the privilege of chairing your confirmation 

hearing for the position of Solicitor General. And while we had a 

spirited debate, I think we can agree we did not have quite as 

much media attention at last year’s hearing. 

Why is that? As I prepared for this week’s hearing, I have been 

thinking about the role of the Supreme Court and the Constitution 

in our lives. Many people may say, to paraphrase our Vice President, ‘‘Why is this such a big deal? Why should I care? Does the 

Supreme Court really impact my life or my family? ’’ 

If you have children, if you work for a living, if you are a woman, 

if you vote, if you care about the air we breathe or the water we 

drink, you need to pay close attention to the confirmation hearing 

and the work of the Supreme Court. 

The Constitution has a very tangible impact on all our lives. It 

is the foundation of the rule of law that is supposed to protect us 

36 

from the abuses of power, abuses of government, abuses of big business. 

We, the people of the United States, we, the people, in order to 

form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution of the United 

States of America. 

The authors of the Constitution understood the timeless idea of 

justice was paramount. As we gather this week to consider your 

nomination to be the 112th person and only fourth woman to serve 

on the highest court, my goal is to ensure that you have a clear 

understanding of how profound an impact your future decisions 

may have on the lives of everyday Americans. 

Based on our conversations, I trust you will put the interests of 

the American people and justice for the American people first 

above popular opinion or politics. 

I also will do all I can to ensure that the American people, 

whether you are watching the hearing at home, at work or at 

school, gain a better understanding of how the Supreme Court, 

which has a duty to uphold the Constitution, really does affect your 

lives. 

Principles outlined in the Constitution are not some abstract historical theory. At its heart, our Constitution and the rule of law is 

about people—we, the people. 

Let us start with families and children. I, along with millions of 

American school children, were denied a full educational opportunity in our schools, because I was forced to attend segregated 

public schools. 

The Supreme Court, in Brown v. Board of Education, rejected 

the notion of separate but equal, and helped move our Nation forward toward a more perfect union. 

It was a young attorney from Baltimore, Thurgood Marshall, who 

argued that case before the Supreme Court. He later became the 

first African-American associate justice and throughout his distinguished career, he was aided by energized law clerks, including our 

nominee, Elena Kagan. 

If you believe that you have a right to fall in love and get married to whomever you wish, you are mostly correct, but only because the Supreme Court intervened on the side of the America 

people, when it ruled in Loving v. Virginia that interracial couples 

could marry. 

Indeed, prior to that decision, parents of the current President of 

the United States, some members of the U.S. Senate, and some 

Members of the Supreme Court, could not have married in some 

states. 

If you believe that what you do in your home, in your bedroom, 

is your business and no one else’s, especially not government’s, you 

are correct, but only because of the Supreme Court decisions like 

Griswold v. Connecticut and Lawrence v. Texas, which reinforced 

our individual rights to privacy, keeping government out of the private consensual activities of adults. 

The Supreme Court was on the side of the American people when 

it ruled in Roe v. Wade that the constitutional right to privacy exVerDate Nov 24 2008 12:24 Aug 23, 2011 Jkt 067622 PO 00000 Frm 00046 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\67622.TXT SJUD1 PsN: CMORC
37 

ists. The Court ruling was not taking sides in the debate on abortion. It was stating that there are certain matters in which government should not interfere into the privacy of families. 

These landmark decisions and others continue the forward progression of protections for the American people, against the abuses 

of power, particularly by an overreaching government. 

Such was the case when the Supreme Court ruled in Gideon v. 

Wainwright that the constitutional right to counsel in a criminal 

proceeding was guaranteed, regardless of the wealth of the defendant. 

The Supreme Court gave the words ‘‘equal justice under law’’ 

real meaning. Perhaps this decision was to be expected, since the 

oath of office declared by every Federal judge makes it clear that 

he or she will administer justice without respect to persons and do 

equal right to the poor and to the rich. 

I believe that our next associate justice and the whole Supreme 

Court should be guided by legal precedent and the best traditions 

of the Supreme Court in advancing constitutional rights for individuals against abuses of power, whether by government or business, 

even as our world continues to change and evolve. 

Justice Thurgood Marshall said, in a 1987 speech, ‘‘I do not believe the meaning of the Constitution was forever fixed at the 

Philadelphia Convention. To the contrary, the government they devised was defective from the start, requiring several amendments, 

a civil war, a momentous social transformation to attain the system 

of constitutional government and its respect for the individual freedoms and human rights we hold as fundamental today.’’ 

Some changes have not been for the better. I have been troubled 

by the increasing number of 5–4 decisions over the last 5 years in 

which a divided Supreme Court reversed decades of progress and 

precedent with rulings that side with powerful corporate interests 

rather than protecting individual rights. 

This trend was clearly shown in Citizens United, where the Supreme Court reversed precedent and overruled Congressional intent, giving corporate special interests even more power and influence in elections. 

In the Ledbetter case, the majority of the Supreme Court protected employers over workers in gender discrimination, again reversing the clear intent of Congress. 

In another 5–4 split decision, Gross v. FBL Financial, the Court 

made it easier for corporate America to discriminate against aging 

baby-boomer workers. If you work for a living, if you are a woman, 

if you are worried that corporations may buy a louder voice in elections than hardworking everyday Americans, you need to keep an 

eye on the judicial legislating being practiced by this Supreme 

Court. 

Are you a consumer? Do you buy products for your family? If so, 

the Supreme Court, in Leegin, yet another 5–4 split case, should 

be of concern to you. Here, the Court ignored longstanding precedent to protect big business to perpetuate price fixing. It was a ruling that put consumers at risk. 

Rapanos, another 5–4 decision, was a step backwards, this time 

for the environment, by reducing protection from wetlands under 

the Clean Water Act. 

38 

If you are like the rest of us that wonder if BP will be held fully 

accountable for the economic and environmental devastation 

brought on by the ongoing oil spill in the Gulf of Mexico, you will 

be equally alarmed by the Supreme Court decision in Exxon v. 

Baker, which imposed limits on damages that can be recovered in 

environmental disasters. 

Time and time again, by the narrowest of margins, this activist 

Court has sided with big business over Main Street America, wiping away protections set in place by years of legal precedent and 

Congressional actions. 

As Justice Stevens stated in Citizens United, I know Senator 

Durbin quoted this, I want to get the line that comes afterwards, 

this is Justice Stevens, ‘‘Essentially, five justices were unhappy 

with the limited nature of the case before us. So they changed the 

case to give themselves an opportunity to change the law. There 

were principled, narrow paths that a Court that was serious about 

judicial restraint could have taken.’’ 

I join him in wondering just how and why those who profess to 

oppose judicial activism have voiced their support for these Supreme Court decisions in which justices have overturned longstanding precedent and substituted their own legislative voices for 

Congress, blurring the line between the legislative and judicial 

branches of government. 

Justice Stevens followed in the best tradition of the Supreme 

Court in advancing individual constitutional rights. Like Justice 

Stevens, Elena Kagan is a known consensus-builder. She also is an 

unquestioned legal scholar, a proven leader, and a dedicated public 

servant. 

As someone who has worked my whole career to expand access 

to justice for all, I am particularly impressed by her record at Harvard of greatly expanding the number of law school clinics which 

provide essential pro bono work for individuals who otherwise 

could not afford legal representation. 

I welcome the American public to these hearings, as we open a 

window to the Supreme Court and shine a light on the critical role 

the Constitution and the rule of law plays in our lives. 

I come to these hearings not solely as a U.S. Senator, a legislator 

and a lawyer, but as a husband, father, and grandfather. Every 

ruling made by the Supreme Court that continues to uphold constitutional protections that keep my granddaughters safe and secure is a victory. 

Every Supreme Court ruling that opens the door to abuses of 

power of the government or big business by overturning longstanding precedent or reversing Congressional intent puts all of 

our children and grandchildren at greater risk. 

I will do all I can within my power to protect my family and 

every American family from such risks. 

Solicitor General Kagan, I welcome you to these confirmation 

hearings and I look forward to your testimony and responses to our 

questions. 

Chairman LEAHY. Thank you very much, Senator. 

Solicitor General, you have been very patient sitting there, as 

has everybody else. Trust me, tomorrow, you will be given a chance 

39 

to speak a great deal and you will later this afternoon with your 

opening statement. 

We will stand in recess for 10 minutes. 

[Recess 2:40 p.m. to 2:55 p.m.] 

Chairman LEAHY. I welcome you all back. I should note that I 

do want to thank Senators. One, they have been very clear in stating their positions, whether I agree or disagree with the particular 

position. But everybody has worked hard to keep within the time 

agreement, and we are actually slightly ahead of schedule. 

Solicitor General Kagan, I must tell you, that is a rare moment 

in the U.S. Senate that we are ahead of schedule on anything. So 

I compliment you for doing that. 

I am going to yield to Senator Whitehouse. 

Senator WHITEHOUSE. Mr. Chairman, does this mean that the remaining Senators get extra time? 

Chairman LEAHY. No. He is trying, though. Nice try. 

STATEMENT OF HON. SHELDON WHITEHOUSE, A U.S. SENATOR 

FROM THE STATE OF RHODE ISLAND 

Senator WHITEHOUSE. Mr. Chairman, I join my colleagues in condolence on this day of sorrow for the Senate and the Supreme 

Court alike, and, also, in their appreciation for the long and distinguished service of Mr. Justice Stevens. 

I welcome you, Solicitor General Kagan. You come before the 

Committee today with a remarkable record of achievement in the 

law. You have been a great student and scholar of the law, a 

skilled practitioner, and a dedicated public servant. 

I enjoyed meeting with you in my office and look forward to our 

discussions as the week proceeds. 

I think it is fair to say that some of my Republican colleagues 

are not so favorably disposed to your nomination. We have already 

heard a lot about their concerns. 

But let us not lose the big picture here. You are the Solicitor 

General of the United States, the lawyer for the United States before the Supreme Court, and the former dean of Harvard Law 

School, a school to which I suspect everyone of us on this Committee would be proud to have our children attend. 

Your nomination to the Supreme Court has to be among the least 

surprising ever made. And I do not want to take any suspense out 

of these proceedings, but things are looking good for your confirmation. 

So given this, I would like to talk for a few minutes about the 

institution to which you have been nominated, our Supreme Court. 

Alexander Hamilton explained, ‘‘The judiciary has no influence 

over either the sword or the purse, no direction either of the 

strength or of the wealth of the society, and can take no active resolution whatever. It may be truly said to have neither force nor 

will, but merely judgment.’’ 

In other words, to fulfill its role in our constitutional system, the 

Supreme Court must act in a manner that demonstrates its adherence to the demands of the law, not merely amenability to political 

preferences. 

Important institutional traditions help the Court fulfill that duty. 

The Court can facilitate democratic processes, but to do so, it must 

40 

respect the other institutions of government. It can bolster the rule 

of law, but only by exercising proper judicial restraint and respecting precedent. 

It can uphold our Constitution, but it must not decide constitutional questions unnecessarily. The Court can exercise discretion 

wisely, but to do so, it must balance competing constitutional values, not just apply a favored ideology. And the Court can bring true 

justice, but only if it approaches each case without predisposition 

or bias. 

Unfortunately, the conservative wing of the current Supreme 

Court has departed from those great institutional traditions. Precedents, whether of old or recent vintage, have been discarded at a 

startling rate. Statutes passed by Congress have been tossed aside 

with little hesitation, and constitutional questions of enormous import have been taken up hastily and needlessly. 

From the five-man conservative wing, we have witnessed the discovery of an individual right to bear arms in the Heller decision, 

a right that previously had gone unnoticed by the Court for 220 

years, and, today, its extension to all our States and municipalities. 

We have seen the first prohibition on a woman’s right to choose 

upheld, with no exception to protect the health of the mother. This 

Court even has chosen to inject itself into the day-to-day business 

of the lower courts, issuing an extraordinary ruling prohibiting the 

online streaming of the gay marriage trial in San Francisco. Each 

decision, 5–4. 

Even more striking is the record of corporate interests before this 

Supreme Court. The Ledbetter case allowed an employer to get 

away with wage discrimination, as long as it hid it successfully 

from the employee. The Gross case made it far harder for a victim 

of age discrimination to prove his or her case. The Iqbal case erected new pleading hurdles protecting defendants, likely corporations, 

from injured plaintiffs. Only last week, the Rent-A-Center decision 

concluded that an employee who challenges as unconscionable an 

arbitration demand must have that challenge decided by the arbitrator. 

And the Citizens United decision, yet another 5–4 decision, created a constitutional right for corporations to spend unlimited 

money in American elections, opening our democratic system to a 

massive new threat of corruption and corporate control. 

There is an unmistakable pattern. For all the talk of umpires 

and balls and strikes, at the Supreme Court, the strike zone for 

corporations gets better every day. 

This tide of decisions running against the accountability of big 

corporations degrades the core constitutional principle. The founding fathers provided, as an essential element of our balanced American system of government, the institution of the jury. The founders put the jury three times into the Constitution and the Bill of 

Rights. It is there for a reason, as the founding fathers knew. They 

were tough, smart politicians. 

When the forces of society are arrayed against you, when lobbyists have the legislature tied in knots, when the Governor’s mansion is in the pockets of special interests, when the owners of the 

local paper have marshaled popular opinion against you, one last 

sanctuary still remains—the jury. 

41 

Against that tide of corporate influence and wealth stands the 

jury box, its hard, square corners resolute. That was why de 

Tocqueville called the jury an institution of government and not 

‘‘and a mode of the sovereignty of the people.’’ ‘‘Not for Nothing’’ 

was the chapter in which he discusses the jury, entitled ‘‘On What 

Tempers the Tyranny of the Majority.’’ 

Now, powerful corporations do not like the jury. They do not like 

the fact that they, too, must stand before a group of ordinary citizens without the advantage of all the influence that money can 

buy. 

They would love a world in which their every contact with government was lubricated by corporate money. But to tamper with a 

jury is a crime. So they have long been on a campaign to smear 

the jury, the runaway jury, as their PR folks have coached them 

to call it. 

Sadly, the Supreme Court seems to be buying what corporations 

are selling. The Exxon v. Baker decision, which arose from the terrible Exxon Valdez spill, rejected a jury’s award of $5 billion in punitive damages, just 1 year’s profits for Exxon, and reduced the 

award by 90 percent. Anything more than the compensatory damage award, the Court reasoned, would make punitive damages too 

unpredictable for corporations. 

The judgment of the jury and the wisdom of the founding fathers 

were, for the Court, lesser values than providing corporations predictability. 

Well, what of the unpredictability for Alaska of Exxon’s drunken 

captain running his ship aground? And one cannot help but wonder 

now what additional precautions BP might have taken in the Gulf 

if that corporation did not know that the Supreme Court had its 

back on predictability. 

I mention these concerns to you, Solicitor General Kagan, because if confirmed, you will make decisions that affect every aspect 

of Americans’ lives. If confirmed, I hope and trust that you will adhere to the best institutional traditions of the Supreme Court and 

act with a clear understanding of the proper role of all the institutions of government provided for us by our founding fathers. 

It is a great Constitution we have inherited, and you will be a 

great justice if you interpret our Constitution in the light of its 

founding purpose rather than according to the preferences of today’s most powerful interests. 

I wish you well. I look forward to our week together. Thank you 

very much. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you very much, Senator Whitehouse. 

Senator Klobuchar. 

STATEMENT OF HON. AMY KLOBUCHAR, A U.S. SENATOR 

FROM THE STATE OF MINNESOTA 

Senator KLOBUCHAR. Thank you, Mr. Chairman. 

Like my colleagues, I want to acknowledge the tremendous loss 

of Senator Byrd. Many in here, since we are in the Judiciary Committee, did know his love and respect for the Constitution. 

I did want to acknowledge his coal miner roots and that he never 

forgot where he came from. I was reminded of this at his 90th 

42 

birthday party, when Senator Kennedy stood and told the story of 

when he was campaigning for his brother for President in West 

Virginia. His bus stalled out on a highway and Senator Kennedy 

himself called the West Virginia Highway Patrol and he said, 

‘‘Ma’am, our bus is broke down on the highway.’’ She said, ‘‘Where 

are you, sir? ’’ He said, ‘‘We are on the Robert C. Byrd Highway.’’ 

And she said, ‘‘Which one? ’’ 

We all know where he came from. 

Welcome, Solicitor General Kagan. We have heard a lot today 

about your work experience, as we should. But when I think about 

your broad range of legal work and the practical real world experience you have had, I am reminded of the famous speech that President Teddy Roosevelt gave 100 years ago this year. 

To paraphrase President Roosevelt, ‘‘It’s not the critic who 

counts. The credit belongs to the one who is actually in the arena, 

who strives to do the deeds, who spends himself in a worthy cause, 

who, at the best, knows, in the end, the triumph of high achievement, and his place shall never be with those cold and timid souls 

who neither know victory nor defeat.’’ 

Solicitor General Kagan, there are always a lot of critics on the 

sidelines, but you have actually been in the arena as a manager, 

as a teacher, as a an adviser, as a consensus-builder, and as a lawyer. 

In every job you have had, you have worked very hard and you 

have done very well. That is why you are before us today being 

considered, in the words of Teddy Roosevelt, ‘‘for this high achievement.’’ 

Your work on the front lines tells me that you have practical experience thinking about the impact of laws and policies on the lives 

of ordinary Americans. When you are involved in considering the 

nitty-gritty details of different policies, when you are actually in 

the game as a decisionmaker, you have to figure out when to compromise and when to hold firm. 

You have to know exactly what the consequences of your recommendations will be. You have to think about the lives that will 

be impacted. 

You were the first woman dean of Harvard Law School. There, 

you were widely credited with bringing together a faculty that was 

rife with division. Whether you were helping recruit talented professors to Harvard from across the political spectrum, as noted by 

Senator Graham, or later when you were working with Senators 

from both parties on anti-tobacco legislation, you forged coalitions 

and found resolution between seemingly intractable parties. 

It strikes me that it takes a pretty extraordinary person, who, 

after working in the Clinton Administration, can still get a standing ovation from the conservative Federalist Society, who inspires 

a group of 600 law students to show up for a rally wearing ‘‘I Love 

Elena’’ tee shirts; who is widely credited with calming the factionalism that had previously roiled your law school. 

In several different jobs now, you have successfully managed 

lawyers and, worse yet, law professors, a group that can certainly 

be described as fearless in the face of supervision. 

43 

In sum, you have had a lot of practical experience reaching out 

to people who hold very different beliefs, and that is increasingly 

important on a very divided Supreme Court. 

That must be, by the way, why you have all the previous solicitor 

generals from the past 25 years, under both Democratic and Republican administrations, supporting you for this job. 

You also spent years teaching students as a law professor. You 

understand how law school allows students to dig deep into the details of a case and see the shades of gray. I think those of us in 

Congress could do well to recall the spirit of law school more frequently, to remember a time when it was our job to think through 

both sides of an argument and to give credence to the legitimate 

points of the other side. 

I believe that in government today, people need to engage rather 

than retreat to the opposite sides of the boxing ring. 

This brings me to a story about my fellow Minnesotan, Justice 

Harry Blackmun. His oldest daughter gave him a copy of Scott 

Turow’s classic book, ‘‘One L,’’ for his 70th birthday. As you know, 

it is a book about the first year of law school. 

After reading the book, Justice Blackmun wrote a note to Scott 

Turow. He wrote, ‘‘Surely, there is a way to teach law, strict and 

demanding though it may be, with some glimpse of its humaneness 

and basic good. You so properly point out that there is room for 

flexibility in different answers and that not all is black or white. 

If I ever learned anything on the bench,’’ Justice Blackmun said, 

‘‘it is that.’’ 

It seems to me, General Kagan, that in all the jobs you have had, 

you have carried the spirit of law school with you, the spirit of constant engagement and good faith efforts to reconcile different 

views. We would welcome such traits on our Supreme Court. 

I also see in you someone like your former boss, Thurgood Marshall, someone who thinks that the law is more than just an academic exercise. I, for one, would like to see someone who thinks 

very deeply about the consequences that legal choices and legal decisions have on real people. 

For me, I would welcome a justice who, in the Lilly Ledbetter employment discrimination case, would raise, like Justice Ginsburg 

did, some real world points, like what was Lilly supposed to do to 

file her complaint on time; run around and ask male employees 

what their salaries were, sneak into their desks to see their paychecks. 

I would also welcome a justice who, in the Exxon Valdez case, as 

pointed out by my colleague, Senator Whitehouse, would have 

thought, as Justice Stevens did, about the real word impacts of 

slashing the damages that the jury had awarded to the 32,000 fishermen whose livelihoods were tragically impacted by the Exxon 

Valdez oil spill in 1989. 

While I do not know what you would have done in these cases, 

your practical experience leads me to believe you may have at least 

considered such things. 

Now, even with the variety of legal experiences that you have 

had, questions have been raised as to whether it is appropriate to 

nominate someone to the Supreme Court who has never been a 

judge before. 

44 

As you know, more than one-third of all Supreme Court justices 

throughout history did not have prior judicial experience, including 

Justices Rehnquist and Frankfurter and Brandeis. 

In an acknowledgment of the importance of your real world experience, Justice Scalia said recently that he was, quote, ‘‘happy to 

see this latest nominee is not a Federal judge and not a judge at 

all.’’ 

I think your practical experience will be helpful should you be 

confirmed to the Supreme Court, and I look forward to asking you 

more about that. 

As a former prosecutor, I am particularly interested in your approach to criminal law cases. When I was the Hennepin County Attorney, I saw firsthand how the law can impact the lives of real 

people. Of course, criminal justice cases that reach the Supreme 

Court involve complicated tradeoffs between competing values— 

safety, privacy and liberty. And I would like to know more about 

how you expect to evaluate these issues. 

I often get concerned that pragmatic experiences are missing in 

judicial decisionmaking, such as when I looked at last year’s Supreme Court decision in the Melendez-Diaz case, where a majority 

broadly interpreted the confrontation clause to include crime lab 

workers, creating potentially unwieldy and unnecessary requirements for prosecutors. I want to ask you about that. 

As I consider your nomination, I also want to reflect on how far 

we have come. Senator Feingold mentioned the obstacles that Sandra Day O’Connor and that Justice Ginsburg faced when they were 

coming up through the legal ranks. And I know you are well aware 

of the strides that women have made. 

In a 2005 speech, quoting Justice Ginsburg, you described a 19– 

11 student resolution at the University of Pennsylvania Law 

School. This resolution would have introduced a $0.25 per week 

penalty on all students without mustaches. 

The women who came before you to be considered by this Committee helped blaze a trail and although your record stands on its 

own, you are also, to borrow a line from Isaac Newton, ‘‘standing 

on the shoulders of giants.’’ 

In the course of more than two centuries, 111 justices have 

served on the Supreme Court. Only three have been women. If you 

are confirmed, you would be the fourth and, for the first time in 

its history, three women would take their places on the bench 

when arguments are heard in the fall. 

Last year, at the confirmation hearings for Justice Sotomayor, I 

said I was looking for three things in a Supreme Court justice— 

good judgment, humility, and the ability to apply the law without 

fear or favor. 

I would like to add one additional consideration to the three 

standards I mentioned last year. I would like to see a Supreme 

Court justice who is able to go into the back room where the justices meet and where no ordinary citizens are present and bring 

some real world perspective to the room. 

I would like to see someone who would not expect the victim in 

an employment discrimination case to go rifling through her male 

coworkers’ desks to see what their pay stubs say. I would like to 

see someone who would not expect prosecutors to bring a crime lab 

45 

analyst to every trial, even when the crime lab’s findings are not 

disputed. 

This will be my focus at the hearing. I am hopeful that your 

background and experiences, to use the words of Teddy Roosevelt, 

‘‘the experiences of someone who has actually been in the arena’’ 

will help you be that person. 

I am hopeful that you will use your great skills and abilities to 

bring that common sense perspective to the Court, and remember 

that the cases that you hear involve real people with real problems 

looking for real remedies. 

Thank you very much. 

Chairman LEAHY. Thank you very much, Senator Klobuchar. 

Senator Kaufman. 

STATEMENT OF HON. EDWARD KAUFMAN, A U.S. SENATOR 

FROM THE STATE OF DELAWARE 

Senator KAUFMAN. Thank you, Mr. Chairman. 

Welcome, Solicitor General Kagan, and welcome, also, to your 

family and friends, and I want to congratulate you on your nomination. 

We are now beginning the end of an extraordinarily important 

process. Short of voting to go to war, a Senator’s constitutional obligation to advise and consent on Supreme Court nominees is probably his or her most important responsibility. 

Supreme justices serve for life. Once the Senate confirms a nominee, she is likely to affect the law and the lives of Americans much 

longer than the Senators who confirmed her. 

As Senators, I believe we have an obligation not to base our decision on empty political slogans or on charges of guilt by association 

or on any litmus test. Instead, we should focus on your record and 

your answers to our questions, which will allow us to determine 

whether you have the qualities necessary to serve all Americans 

and the rule of law on our Nation’s highest court. 

Over the years, as chief of staff to then Senator Biden, teaching 

at the Duke Law School, and as a Senator myself, I have thought 

a lot about the qualities I believe a Supreme Court nominee should 

have; a first-rate intellect, significant experience, unquestioned integrity, absolute commitment to the rule of law, unwavering dedication to being fair and open-minded, and the ability to appreciate 

the impact of court decisions on the lives of ordinary people. 

Last year, when Justice Souter announced his retirement and, 

again, when Justice Stevens announced his retirement this April, 

I suggested that the Court would benefit from a broader range of 

experience among its members. 

My concern was not just the relative lack of women or racial or 

ethnic minorities on Federal courts, although that deficit remains 

glaring. I was noting the fact that the current justices all share 

very similar professional backgrounds. 

Every one of them served as a Federal circuit court judge before 

being appointed to the Supreme Court. Not one of them has ever 

run for political office, like Sandra Day O’Connor, Earl Warren, 

Hugo Black. 

General Kagan, I am genuinely heartened by what you would 

bring to the Court based on your experience working in all three 

46 

branches of government and the skills you developed running a 

complex institution like the Harvard Law School, and, yes, the 

prospect that you are being the fourth woman to serve on our Nation’s highest court. 

Some pundits and some Senators have suggested that your lack 

of judicial experience is somehow a liability. I could not disagree 

more. While prior judicial experience can be valuable, the Court 

should have a broader range of perspectives than just gleaned from 

the appellate branch. 

General Kagan, you bring valuable nonjudicial experience and a 

freshness of perspective that is lacking on the current Court. As 

has been said over and over again, but I think it is worth repeating, in the history of the Supreme Court, more than one-third of 

the justices have had no prior judicial experience before being nominated and a nominee’s lack of judicial experience has certainly 

been no barrier to success. 

Woodrow Wilson nominated Louis Brandeis in 1916. Many objected on the ground that he had never served on the bench. Over 

his 23-year career, however, Justice Brandeis proved to be one of 

the Court’s greatest members. His opinions exemplified judicial restraint. His approach still resonates in our judicial thinking more 

than 70 years after his retirement. 

Felix Frankfurter, William Douglas, Robert Jackson, Byron 

White, Lewis Powell, Harlan Fiske Stone, Earl Warren, and William Rehnquist all became justices without ever previously being 

judges, and they certainly led distinguished careers on the Supreme Court. 

As Justice Frankfurter, someone who would know, wrote in Judicial Experience in 1957, and I quote, ‘‘One is entitled to say, without qualification, that the correlation between prior judicial experience and fitness for the function of the Supreme Court is zero,’’ unquote. 

We have all now had the opportunity to review your extensive 

record as a lawyer, a policy adviser, and an administrator. 

Throughout your career, you have consistently demonstrated the 

all too rare combination of first-rate intellect and intensely pragmatic approach to identifying and solving problems. 

Last summer, during then Judge Sotomayor’s confirmation hearings, I focused on the current Court’s handling of business cases, 

as a number of folks have talked about today. I am convinced, by 

education, experience and inclination, that the integrity of our capital markets, U.S. capital markets, along with our democratic traditions, is what makes America great. 

Too often, however, today’s Supreme Court seems to disregard 

settled law and Congressional policy choices in order to promote 

business interests at the expense of the people’s interest. With its 

preempting state consumer protection in Medtronic, striking down 

punitive damage awards in Exxon, restricting the access to the 

courts in Twombly, or overturning 96 years of pro-consumer antitrust law in Leegin, this Court gives me the impression that in 

business cases, the working majority is business oriented to a fault. 

The Exxon case demonstrates how this pro-business orientation 

can effect the lives of ordinary people. In that case, four of the 

eight justices who participated voted to bar all punitive damages 

47 

in maritime cases against employers, like Exxon, for their employees’ reckless behavior. 

Justice Alito did not participate in the case. So the Court split 

4–4 on this point. But had he participated and voted with the conservatives on the Court, then today, individuals harmed by oil 

spills like Exxon Valdez would be subject to a flat ban on punitive 

damages in maritime accidents. 

As we consider the current disaster in the Gulf, the prospect is 

worth contemplating. 

As has been said several times, but, again, worth repeating, the 

Court’s decision last fall in the Citizens United case, which several 

of my colleagues have mentioned, is the latest example of the 

Court’s pro-corporate bent. The majority opinion in that case 

should put the nail in the coffin of the claims that judicial activism 

is a sin committed by judges of only one political ideology. 

What makes the Citizens United decision particularly troubling 

is that it is at odds with what some of the Court’s most recently 

confirmed members said during their confirmation hearings. 

We heard a great deal, a great deal, about their deep respect for 

existing precedent. Now, however, the respect seems to vanish 

whenever it interferes with the desired pro-business outcome. 

As I have said before, charges of judicial activism are often 

unhelpful, empty epithets divorced from a real assessment of judicial temperament. But that does not mean the term ‘‘judicial activism’’ is necessarily meaningless. 

If we want to take the term seriously, it might mean a failure 

to defer to the elected branches of government; it might mean disregard of longstanding precedent; it might mean deciding cases 

based on personal policy preferences rather than the law; or, it 

might mean manipulating a case to get at issues not squarely presented by the parties. 

Now, by any of these definitions, the decision in Citizens United 

was a highly activist decision. First, the Court summarily overturned years of settled precedent and statutory law that had limited the influence of corporate electioneering. 

Second, the Court took it upon itself to order that the case be 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—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. 

48 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. And just before we go to Senator 

Franken, just so you understand what the schedule is, Solicitor 

General and others, once Senator Franken finishes, we are going 

to just stay here in the room. It is going to take about a minute 

to rearrange the tables, as the two Senators who are going to introduce you will. And then you get a chance to speak. 

Senator Franken. 

STATEMENT OF HON. AL FRANKEN, A U.S. SENATOR FROM 

THE STATE OF MINNESOTA 

Senator FRANKEN. Thank you, Mr. Chairman. 

As the Chairman just pointed out, General Kagan, I am last, and 

that is because I am most junior. But Senator Byrd was always 

kind to me, even though he was a giant of this institution. And I 

was moved that he always came in when we needed him, even during the deep snows of late December. 

I would have to serve until I am 118 years old to serve as long 

as Senator Byrd. I very much doubt that will happen or that I will 

have a legacy as permanent as his. I would also like to extend my 

condolences to Justice Ginsburg and her family and she is in our 

thoughts and prayers. 

Every Senator who has spoken before me has sworn to support 

and defend the Constitution of the United States, and so have I. 

There are few things that we do that are more important to fulfilling that oath than making sure that the justices of the Supreme 

Court are brilliant, humane, and just individuals. 

But these hearings are also a learning experience for the people 

of Minnesota and for every American. Before I joined the U.S. Senate, I watched every televised confirmation hearing—not the whole 

thing, of course, but at least part. And I think part of my job is 

to continue that learning experience for the American people. 

Now, last year, I used my time during these hearings to highlight what I think is one of the most serious threats to our Constitution and to the rights and guarantees of the American people: 

the activism of the Roberts Court. 

I noted that for years, conservatives running for the Senate have 

made it almost an article of faith that they will not vote for activist 

judges who make law from the bench. And when asked to name a 

model justice, they would often cite Justice Thomas, who I noted 

has voted to overturn more Federal laws than Justice Stevens and 

Justice Breyer combined. 

In recent campaign cycles, you would also hear the name of Justice Roberts. Well, I think we have established very convincingly, 

we did during the Sotomayor hearing, that there is such a thing 

as judicial activism; there is such a thing as legislating from the 

bench; and, it is practiced repeatedly by the Roberts Court and it 

has cut in only one direction—in favor of powerful corporate interests and against the rights of individual Americans. 

In the next few days, I want to continue this conversation, because I think things have only gotten worse. So I want to say one 

thing to the people of Minnesota who are watching on TV or listening. With few exceptions, whether—and I’m echoing Senator 

Cardin here—whether you’re a worker, a pensioner, a small busiVerDate Nov 24 2008 12:24 Aug 23, 2011 Jkt 067622 PO 00000 Frm 00058 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\67622.TXT SJUD1 PsN: CMORC
49 

ness owner, a woman, a voter, or a person who drinks water, your 

rights are harder to defend today than they were 5 years ago. 

My State has been victim to the third-largest Ponzi scheme in 

history, and yet in 2008, in a case called Stoneridge, the Roberts 

Court made it harder for investors to get their money back from 

people who defrauded them. 

The Twin Cities have more older workers per capita than almost 

any other city in the Nation, and yet in 2009, in a case called 

Gross, the Roberts Court made it easier for corporations to fire 

older Americans and get away with it. 

Minnesota has more wetlands than all but three states, yet in a 

case called Rapanos, the Court cut countless streams and wetlands 

out of the Clean Water Act, even though they had been covered for 

up to 30 years. 

Minnesota banned all corporate spending in state and local elections in 1988, and yet in January, in Citizens United, the Roberts 

Court nullified our state laws and turned back a century of federal 

law by allowing corporations to spend as much money as they 

want, whenever they want, in our elections—and not just federal 

elections, Duluth elections, Bemidji elections, Minnesota elections. 

There is a pattern here. Each of these decisions was won with five 

votes and in each of these decisions that bare majority used its 

power to help big business. 

There is another pattern here. In each of those decisions, in 

every one, Justice John Paul Stevens led the dissent. Now, Justice 

Stevens is no firebrand liberal. He was appointed to the Seventh 

Circuit by Richard Nixon. He was elevated to the Supreme Court 

by Gerald Ford. By all accounts, he was considered a moderate. 

And yet he didn’t hesitate to tell corporations that they aren’t a 

part of ‘‘we the people’’ by whom and for whom our Constitution 

was established, and he didn’t flinch when he told the President 

that the executive is bound to comply with the rule of law. General 

Kagan, you’ve got big, big shoes to fill. 

But before I turn it over to you, I want to talk a bit more about 

one of the decisions I mentioned. I want to talk more about Citizens 

United. Now, you’ve heard a lot about this decision already today, 

but I want to come at it from a slightly different angle. There is 

no doubt that the Roberts Court’s disregard for a century of federal 

law, the decades of Supreme Court’s own rulings, is wrong and 

shocking. It has torn a gaping hole in our election laws. 

So of course I’m worried about how Citizens United is going to 

change our elections, but I am more worried about how this decision is going to affect our communities and our ability to run those 

communities without a permission slip from big business. 

Let me give you two examples of what I’m talking about. In the 

early 1960s, car companies knew that they could avoid a large 

number of fatalities by installing seatbelts in every vehicle, but 

they didn’t want to. They said safety doesn’t sell. But Congress 

didn’t listen to the car companies. So in 1966, Congress passed a 

law requiring that all passenger cars have seatbelts. Since then, 

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

Here is another story. Around the same time that we passed the 

seatbelt law, people started to realize that leaded gasoline that cars 

ran on was poisoning our air. But oil companies didn’t want to take 

50 

the lead out of gasoline because altering their refineries was going 

to be, in the words of the Wall Street Journal, ‘‘a multi-billion dollar headache.’’ But in 1970, Congress passed the Clean Air Act anyway, and thanks in part to that law, by 1995 the percentage of children with elevated levels of lead in their blood had dropped by 84 

percent. 

Along with the Clean Water Act of 1972, the Clean Air Act of 

1970 and the Motor Vehicle Act, are the three pillars of the modern 

consumer safety and environmental laws. Here is something else 

they have in common: they were all passed around 60 days before 

an election. 

Do you think those laws would have stood a chance if Standard 

Oil and GM could have spent millions of dollars advertising against 

vulnerable Congressmen, by name, in the last months before their 

elections? I don’t. So here’s my point, General Kagan. Citizens 

United isn’t just about election law, it isn’t just about campaign finance law. It’s about seatbelts, it’s about clean air and clean water, 

it’s about energy policy and the rights of workers and investors, it’s 

about health care. It’s about our ability to pass laws that protect 

the American people, even if it hurts the corporate bottom line. 

As Justice Stevens said, it’s about our need to prevent corporations from undermining self-government. But I think you know 

that. General Kagan, you’ve shown remarkable skill as a lawyer for 

our government, remarkable candor as one of its critics—say, for 

example, about Supreme Court confirmation hearings. I like that 

and I want to see that legal skill in action. I want to see if you 

might continue the work of Justice Stevens. 

Thank you, Mr. Chairman. 

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

I would ask the staff if we could set up the table because I noticed Chairman Kerry and Senator Brown are here. Everybody just 

stay where you are. I appreciate both Senators being here. I know 

everybody’s had to rearrange their own schedule. We’ve been locked 

in this room, but I’m told that there’s been a number of thunderstorms in the area. Senator Brown, I think you were flying back 

from Massachusetts. That could not have been very much fun. 

The first witness is Senator John Kerry. He’s a senior U.S. Senator from Massachusetts. He’s Chairman of the Senate Foreign Relations Committee. I’ve had the privilege of serving with him ever 

since he came to the Senate. He’s a decorated Vietnam veteran. 

From his groundbreaking work on the Iran Contra scandal to his 

leadership in global efforts to combat AIDS, Senator Kerry has distinguished himself as one of our Nation’s most respected voices on 

national security and international affairs, and chairs the prestige 

Foreign Relations Committee. 

So Senator Kerry—Chairman Kerry—we’re pleased to have you 

before our Committee today. Please go ahead, sir. 

51 

PRESENTATION OF ELENA KAGAN, NOMINEE TO BE AN ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED 

STATES BY HON. JOHN KERRY, A U.S. SENATOR FROM THE 

STATE OF MASSACHUSETTS 

Senator KERRY. Thank you very much, Chairman Leahy, for 

those kind words of introduction, Ranking Member Sessions, and 

to all my colleagues on the important Judiciary Committee at this 

important moment. 

Members of the Committee, Mr. Chairman, 16 years ago I had 

the privilege to introduce Steven Briar to this Committee. With the 

loss today of Senator Byrd, I am particularly reminded of Senator 

Kennedy sitting beside me that day. As you all know better than 

anybody, Senator Kennedy served on this Committee for 46 years 

and I know the pride he would feel seeing Elena Kagan nominated 

for the Supreme Court of the United States. 

When Ted introduced then-Judge Briar, he quoted Oliver Wendell Holmes, that ‘‘every calling is great when greatly pursued.’’ 

Those words applied to Steven Briar, and I can share with you my 

complete and total confidence that they apply equally to Solicitor 

General Elena Kagan. 

Massachusetts is proud, Mr. Chairman, of Elena Kagan’s accomplishments. We believe that through these hearings, as each of you 

get to know her as we do, she will earn broad bipartisan support, 

just as she did when she was nominated as Solicitor General. 

By now, every one of us has heard many times repeated, and you 

know well, the high points of her record: a trail-blazing pace culminating in her selection as the first woman to serve as the dean of 

Harvard Law School, and the first woman to serve as Solicitor General. 

If confirmed, she will make history once again. In an America 

where women comprise more than half the population, she will join 

Justices Ginsburg and Sotomayer, and, for the first time in our history, a full third of the U.S. Supreme Court will be women. 

But there is much more than distinguishes Elena. Her life has 

really been characterized by her passion for public service and her 

awareness of what it means to be a good public citizen. A close 

friend from her days clerking for Justice Marshall remembers 

Elena interviewing at a big law firm in New York, meeting with 

a young partner who, with no family to support, was pulling in 

close to a million dollars a year. 

So Elena asked him, ‘‘What do you do with all that money? ’’ He 

replied, ‘‘I buy art.’’ Elena just shook her head, in the conviction 

that there really were better ways to expend her life’s work, and 

she continued to pursue efforts to more directly impact the lives of 

those around her. 

Her skills and intellect very quickly came to the attention of the 

Clinton White House, which is when I first got to know her. I had 

been asked by the Chairman of the Commerce Committee, Senator 

Hollings, our old friend, to help break through a stalemate on a bipartisan tobacco bill. It was a difficult issue for both caucuses. 

Elena became the administration’s point person. 

When we started out, no one gave us any hope of being close to, 

or getting close to passage. But Elena camped out in the vice president’s office off the Senate floor, shuttling back and forth to the 

52 

White House. She worked day and night equally with both sides of 

the aisle, working every angle, thinking through every single approach. On the eve of the Commerce Committee’s mark-up, things 

appeared to be falling apart, something we’re all too familiar with 

here. 

But Elena simply wasn’t going to let that happen. That was an 

unacceptable outcome. She got together with the Republican Senators and staff and she listened carefully. She helped all of us to 

meet the last-minute objections. It was classic Elena. She saw a 

path forward when most people saw nothing but deadlock, and it 

led to a 19:1 vote to pass the bill out of committee, a mark of bipartisanship and consensus building that few believed was possible. 

That is what I believe Elena Kagan will bring to the court. She 

was tough and tenacious in argument when necessary, but she also 

knew when it was necessary to strike a compromise. She had a 

knack for knowing how to win people over, an ability to make people see the wisdom of an argument. 

I remember lots of late nights in a very quiet Capitol Building, 

walking off the Senate floor to meet with my staff and Elena. Invariably, Elena would be the one to have a new idea, a fresh approach. It was a tutorial in consensus building from someone for 

whom it was pure instinct and it won Elena the respect of Republicans and Democrats alike. 

No doubt, her hands-on experience working the governance process is actually, in this day and age and in this moment of the court, 

probably an enormous asset. Frankly, I think it’s a critical component of what makes her a terrific choice, someone who really understands how laws are created and the real-world effects of their 

implementation. It’s a reminder of why some of the greatest justices in our history were not judges before they sat on the court. 

Among those are names like Frankfurter and Brandeis. 

I might add that she brought the same pragmatic knack for consensus building to her stewardship at Harvard Law School. There, 

she found what was affectionately acknowledged—I emphasize ‘‘affectionately acknowledged’’—as a dysfunctional and divided campus 

and she transformed it again to a cohesive institution, winning 

praise from students and faculty across the ideological spectrum. 

Elizabeth Warren, Elena’s colleague at Harvard and chair of the 

Congressional panel currently overseeing our economic relief effort, 

says, simply, ‘‘she changed morale around here’’. 

Charles Fried, the former Solicitor General under President 

Reagan and renowned conservative and constitutional expert says 

of her prospects as a justice on the Supreme Court: ‘‘I think Elena 

would be terrific because, frankly, the court is stuck. The great 

thing about Elena is, there’s a freshness about her that promises 

some possibility of getting away from the formulas that are 

wheeled out today on both sides. I have no reservations about her 

whatsoever.’’ 

John Manning, the first hire under Kagan’s deanship, a conservative and an expert on textualism and separation of powers, says, 

‘‘I think one of the things you see in Kagan as dean was that she 

tried to hire folks with different approaches to law and different 

ideological perspectives. She was equally as strong in her praise for 

Scalia as she was in her praise for Breyer. She celebrated both. It’s 

53 

a good predictor of how she’ll be as a judge. She would be fair and 

impartial, the sort of judge who would carefully consider briefing 

an argument in every case, the sort of judge I would want if I 

didn’t know which side of the case I was arguing.’’ 

And so in closing, my colleagues, I’m glad that in these next days 

you’re going to get a chance to know Elena, as so many of us have 

in Massachusetts, the way she thinks, her approach to the law, an 

extremely capable public servant, well grounded in the Constitution, and I assure you, deeply committed to the values that we all 

share as Americans. 

I will always remember what Justice Potter Stewart said about 

what makes a first-rate judge. He said, ‘‘The mark of a good judge 

is a judge whose opinion you can read and have no idea if the judge 

was a man or a woman, a Republican or Democrat, Christian or 

Jew, you just know he or she was a good judge.’’ I believe that 

Elena Kagan will meet that standard and I have every confidence 

that she’ll be an outstanding justice of the Supreme Court in every 

sense of the word. 

So, thank you, Mr. Chairman, for the privilege of introducing 

this superb nominee. 

Chairman LEAHY. Thank you very much. 

Also, we have Senator Scott Brown. Senator Brown was elected 

this January to fill the seat of one of this body’s most beloved members, Senator Ted Kennedy, who was actually the longest-serving 

of either party on the Senate Judiciary Committee in the history 

of the Senate. 

Senator Brown serves on the Senate Committee on Armed Services, the Committee on Veterans Affairs, and the Homeland Security and Governmental Affairs Committee. Prior to his election to 

the U.S. Senate, Senator Brown served in the Massachusetts State 

Senate, where he advocated for children’s and victims’ rights and 

worked to promote environmental and good government initiatives. 

He is a 30-year member of the Massachusetts Army National 

Guard. Do I have that correct, 30-year? He was awarded the Army 

Commendation Medal for meritorious service in homeland security 

following the terrorist attacks of September 11th, 2001. I know, 

from my conversation I had with you at the end of last week, that 

you had to move a number of things around to get here this afternoon. I want you to know the Committee appreciates that. 

Please go ahead, Senator Brown. 

PRESENTATION OF ELENA KAGAN, NOMINEE TO BE AN ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED 

STATES BY HON. SCOTT BROWN, A U.S. SENATOR FROM THE 

STATE OF MASSACHUSETTS 

Senator BROWN. Well, thank you, Mr. Chairman. The thanks is 

to you for accommodating Senator Kerry and me in adjusting your 

schedules. It means a lot to sit next to Senator Kerry and make 

the presentation to you and to Ranking Member Sessions and the 

members of the Committee, and I am pleased to join you in upholding a longstanding tradition of introducing Elena Kagan of Massachusetts to the Committee. 

First, though, I would like to express my heartfelt condolences to 

Senator Byrd’s family for the loss that they’ve suffered during this 

54 

difficult time. Although I only served briefly with Senator Byrd, I 

was well aware of his deep and longstanding commitment to the 

Senate and what it stood for. He represented the people of West 

Virginia with great class and dignity. I also am saddened to hear 

of the passing of Martin Ginsburg, the husband of Justice Ruth 

Bader Ginsburg, and I offer my condolences to Justice Ginsburg 

and her family. 

I wish to congratulate Ms. Kagan on her nomination. It’s an 

honor to introduce her today. I had the pleasure of meeting her last 

month and found her to be an impressive and pleasant individual. 

I indicated then, and I look forward to attending this Committee’s 

hearings to learn more about her record, her philosophy, and her 

qualifications. 

As an attorney myself, I recognize an impressive legal resume 

when I see one, and there’s no doubt that Ms. Kagan has gone far 

since graduating from Harvard Law School magna cum laude in 

1986. Following her law school days in Cambridge, Ms. Kagan 

clerked for appellate court judge and U.S. Supreme Court Justice 

Thurgood Marshall. 

Then she entered private legal practice at a prestigious Washington, DC law firm before joining the faculty of the University of 

Chicago School, where she earned tenure in 1995. From 1995 to 

1999, she served with the Clinton administration first as an associate White House counsel, and then in positions with the Domestic 

Policy Council. 

In 1999, she returned to Massachusetts to join the faculty of 

Harvard Law School—you heard Senator Kerry mention some of 

her accolades there—where she would become, later, dean and 

Charles Hamilton Houston Professor of Law. 

While at Harvard, her article, ‘‘Presidential Administration’’, was 

named the year’s top scholarly article by the American Bar Association’s Section on Administrative Law and Regulatory Practice. 

President Obama nominated Ms. Kagan to be Solicitor General 

on January 5, 2009, and I’m very proud that our Nation’s first female Solicitor General has such deep roots in Massachusetts. If 

confirmed, she would be the third woman on the Supreme Court 

and only the first in the history of our court. 

As Solicitor General, she frequently represents the United States 

before the Supreme Court and she’s argued several high-profile 

cases before the court, and was recently victorious in the Holder v. 

Humanitarian Law Project case which held that Congress’s prohibition of material support and resources to foreign terrorist organizations is constitutional. 

She’s undoubtedly a brilliant woman who has served her country 

in a variety of capacities and has made significant contributions to 

Massachusetts, and I certainly thank her for that. This Committee, 

as you know, Mr. Chairman and members of the Committee, is 

about to embark on one of the most serious duties that the Senate 

is constitutionally tasked with, something that I am honored to 

play a small part in: vetting the qualifications, temperament, and 

philosophy of a lifetime appointment, something that is very, very 

serious and very important. 

I look forward to Ms. Kagan’s responses to the Committee’s questions. I know that I have some of my own, and I’m quite sure my 

55 

colleagues here today do as well. Our constitutional duty of advice 

and consent is imperative and should not be taken lightly, and I 

plan not to take it lightly as well. 

In closing, I look forward to a thorough and fair examination of 

Ms. Kagan’s record. I want to thank you, Mr. Chairman and Ranking Member Sessions and members of the Committee, for adjusting 

your schedules to allow Senator Kerry and me to come before you. 

Thank you. 

Chairman LEAHY. Thank you very much. As I said, you’re the 

ones that adjusted yours. I thank you both for being here and I appreciate that. 

The staff will reset the table and we can invite Ms. Kagan back 

to the table. 

I would note that we actually come now to really the beginning 

of what is for all Senators one of the most important and most 

cherished part of our duties, the advice and consent. I stated at the 

beginning of this hearing, there’s only one person who can nominate somebody to the Supreme Court and that person is going to 

affect 300 million Americans, but only 100 of us get to vote. That 

process will begin now. 

Solicitor General, please stand and raise your right hand. 

[Whereupon, the witness was duly sworn.] 

Chairman LEAHY. Thank you. Please be seated. 

Solicitor General Kagan, I know you have an opening statement. 

I will—now the floor is yours. 

STATEMENT OF ELENA KAGAN, SOLICITOR GENERAL OF THE 

UNITED STATES 

Solicitor General KAGAN. Thank you very much, Mr. Chairman, 

Senator Sessions, and members of the Committee. I’d like to thank 

Senators Kerry and Brown for those generous introductions. I also 

want to thank the President again for nominating me to this position. I’m honored and humbled by his confidence. 

Let me also thank all the members of the Committee, as well as 

many other Senators, for meeting with me in these last several 

weeks. I’ve discovered that they call these courtesy visits for a reason: each of you has been unfailingly gracious and considerate. 

I know that we gather here on a day of sorrow for all of you, for 

this body, and for our Nation with the passing of Senator Byrd. I 

did not know him personally as all of you did, but I certainly knew 

of his great love for this institution, his faithful service to the people of his State, and his abiding reverence for our Constitution, a 

copy of which he carried with him every day, a moving reminder 

to each of us who serves in government of the ideals we must seek 

to fulfill. All of you and all of Senator Byrd’s family and friends are 

in my thoughts and prayers at this time. 

I would like to begin by thanking my family, friends and students who are here with me today. I thank them for all the supports they’ve given me during this process and throughout my life; 

it’s really wonderful to have so many of them behind me. 

I said, when the President nominated me, that the two people 

missing were my parents, and I feel that deeply again today. My 

father was as generous and public-spirited a person as I’ve ever 

56 

known, and my mother set the standard for determination, courage, and commitment to learning. 

My parents lived the American dream. They grew up in immigrant communities. My mother didn’t speak a word of English until 

she went to school, but she became a legendary teacher, and my 

father a valued lawyer. They taught me and my two brothers, both 

high school teachers, that this is the greatest of all countries because of the freedoms and opportunities it offers its people. I know 

that they would have felt that today and I pray that they would 

have been proud of what they did in raising me and my brothers. 

To be nominated to the Supreme Court is the honor of a lifetime. 

I’m only sorry that, if confirmed, I won’t have the privilege of serving there with Justice John Paul Stevens. His integrity, humility, 

and independence, his deep devotion to the court and his profound 

commitment to the rule of law, all these qualities are models for 

everyone who wears, or hopes to wear, a judge’s robe. 

If given this honor, I hope I will approach each case with his 

trademark care and consideration. That means listening to each 

party with a mind as open as his to learning and persuasion, and 

striving as conscientiously as he has to render impartial justice. 

I owe a debt of gratitude to two other living justices. Sandra Day 

O’Connor and Ruth Bader Ginsburg paved the way for me and so 

many other women in my generation. Their pioneering lives have 

created boundless possibilities for women in the law. I thank them 

for their inspiration, and also for the personal kindnesses they 

have shown me. 

My heart goes out to Justice Ginsburg and her family today. Everyone who ever met Marty Ginsburg was enriched by his incredible warmth and humor and generosity, and I’m deeply saddened 

by his passing. 

Mr. Chairman, the law school I had the good fortune to lead has 

a kind of motto spoken each year at graduation. We tell the new 

graduates that they are ‘‘ready to enter a profession devoted to 

those wise restraints that make us free.’’ That phrase has always 

captured, for me, the way law and the rule of law matters. What 

the rule of law does is nothing less than to secure for each of us 

what our Constitution calls the ‘‘blessings of liberty,’’ those rights 

and freedoms, that promise of equality that have defined this Nation since its founding. What the Supreme Court does is to safeguard the rule of law through a commitment to even-handedness, 

principle, and restraint. 

My first real exposure to the court came almost a quarter century ago when I began my clerkship with Justice Thurgood Marshall. Justice Marshall revered the court, and for simple reason: in 

his life, in his great struggle for racial justice, the Supreme Court 

stood as the part of government that was most open to every American and that most often fulfilled our Constitution’s promise of 

treating all persons with equal respect, equal care, and equal attention. 

The idea is engraved on the very face of the Supreme Court 

building: ‘‘Equal Justice Under Law.’’ It means that everyone who 

comes before the court, regardless of wealth, or power, or station, 

receives the same process and the same protections. What this 

57 

commands of judges is evenhandedness and impartiality. What it 

promises is nothing less than a fair shake for every American. 

I’ve seen that promise up close during my tenure as Solicitor 

General. In that job, I serve as our government’s chief lawyer before the Supreme Court, arguing cases on issues ranging from campaign finance, to criminal law, to national security. And I do mean 

argue. In no other place I know is the strength of a person’s position so tested, and the quality of a person’s analysis so deeply 

probed. No matter who the lawyer or who the client, the court relentlessly hones in on the merits of every claim and its support in 

law and precedent. 

And because this is so, I always come away from my arguments 

at the court with a renewed appreciation of the commitment of 

each justice to reason and principle, a commitment that defines 

what it means to live in a Nation under law. 

For these reasons, the Supreme Court is a wondrous institution. 

But the time I spent in the other branches of government remind 

me that it must also be a modest one, properly deferential to the 

decisions of the American people and their elected representatives. 

What I most took away from those experiences was simple admiration for the democratic process. That process is often messy and 

frustrating, but the people of this country have great wisdom and 

their representatives work hard to protect their interests. 

The Supreme Court, of course, has the responsibility of ensuring 

that our government never oversteps its proper bounds or violates 

the rights of individuals, but the court must also recognize the limits on itself and respect the choices made by the American people. 

I am grateful beyond measure for the time I spent in public service, but the joy of my life has been to teach thousands of students 

about the law and to have had the sense to realize that they had 

much to teach me. I’ve led a school whose faculty and students examine and discuss and debate every aspect of our law and legal 

system, and what I’ve learned most is that no one has a monopoly 

on truth or wisdom. 

I’ve learned that we make progress by listening to each other 

across every apparent political or ideological divide. I’ve learned 

that we come closest to getting things right when we approach 

every person and every issue with an open mind. I’ve learned the 

value of a habit Justice Stevens wrote about more than 50 years 

ago, of understanding before disagreeing. 

I will make no pledges this week other than this one: that if confirmed, I will remember and abide by all these lessons. I will listen 

hard to every party before the court and to each of my colleagues. 

I will work hard and I will do my best to consider every case impartially, modestly, with commitment to principle and in accordance with law. That is what I owe to the legacy I share with so 

many Americans. 

My grandparents came to this country in search of a freer and 

better life for themselves and their families. They wanted to escape 

bigotry and oppression, to worship as they pleased, and work as 

hard as they were able. They found in this country, and they 

passed on to their children and their children’s children, the blessings of liberty. 

58 

Those blessings are rooted in this country’s Constitution and its 

historic commitment to the rule of law. I know that to sit on our 

Nation’s highest court is to be a trustee of that inheritance, and if 

I have the honor to be confirmed, I will do all I can to help preserve it for future generations. 

Thank you, Mr. Chairman. Thank you, members of the Committee. 

Chairman LEAHY. Well, thank you, Solicitor General Kagan. I 

thank all the members of both sides of the aisle who have stayed 

and have been so attentive. 

We will come back here at 9 a.m. tomorrow. We stand in recess. 

[Whereupon, at 4:05 p.m. the Committee was recessed.] 

(59) 

THE NOMINATION OF ELENA KAGAN TO BE 

AN ASSOCIATE JUSTICE OF THE SUPREME 

COURT OF THE UNITED STATES 

TUESDAY, JUNE 29, 2010 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 9 a.m., in room SH– 

216, Hart Senate Office Building, Hon. Patrick J. Leahy, Chairman 

of the Committee, presiding. 

Present: Senators Leahy, Kohl, Feinstein, Feingold, Specter, 

Schumer, Durbin, Cardin, Whitehouse, Klobuchar, Kaufman, 

Franken, Sessions, Hatch, Grassley, Kyl, Graham, Cornyn, and 

Coburn. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. 

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Good morning everyone. Today Justice John 

Paul Stevens’ resignation from the Supreme Court takes effect. I 

appreciated your recognition of his service to the country in your 

opening statement Solicitor General Kagan. 

He was the first person, the first Supreme Court nomination I 

was able to vote on as a very young and very junior member of the 

U.S. Senate. But you spoke eloquently about the rule of law, securing the blessings of liberty, about the Constitution, and about your 

respect for all three branches of our democratic Government. And 

I appreciate your pledge to consider every case impartially, modestly, with commitment to principle, and in accordance with law. 

So this morning we begin our questioning. Senator Sessions and 

I talked about this. Each Senator, Republicans and Democrats, will 

have a 30-minute round, and we will alternate back and forth. So 

I will begin the first round. 

Solicitor General Kagan—and you can start the clock. Solicitor 

General Kagan, you spoke yesterday about your parents, children 

of immigrants, the first in their families to attend college. I was 

struck when you said that your mother did not learn English until 

she was ready to go to school, and I can—that was the same with 

my mother and my wife. 

Before we get to questions about the important role that the Supreme Court plays in American lives, do you want to share with 

us some additional thoughts about the values your parents taught 

you that put you on the path to teaching and law and public service? Because that may give us a better idea of who you are. 

60 

Ms. KAGAN. Gosh, Chairman Leahy, thank you for giving me 

that opportunity. That is a wonderful opportunity. 

My parents, of course, were—they were loving, wonderful parents, but they were also people who worked hard for their communities, and I think that is what I most took away from them, is the 

value of serving the communities that you live in and serving other 

people. And I guess I got a little bit from each side. My father, I 

said, was a lawyer. He was a lawyer for ordinary people. He was 

the kind of lawyer who, if you needed a will drawn up, he would 

draw up your will, and if you had problems on your taxes, he would 

help you with that. And then one of the things that he did quite 

a lot of was he helped tenants in New York City. The neighborhood 

we lived in was in the process of some change as I was growing 

up, and many people were sort of being forced out of their homes. 

And he made it really part of his legal work to ensure that either 

they could stay in their homes, or at least if they did need to move 

to another neighborhood, they could take something with them to 

establish a good life there. 

And he was also a person who spent an enormous amount of 

time thinking about that neighborhood. He was involved in lots of 

community boards and citizen groups of various kinds, thinking 

about environmental projects and land use projects. He really 

treated that neighborhood of New York City as just—you know, he 

just so much cared about the welfare of it and poured his heart and 

soul into trying to improve it. 

And I think what I learned from him was just the value of public 

service, was just the value of doing what you can in your neighborhood or in your Nation or wherever you can find that opportunity 

to help other people and to serve the Nation. So that is what I most 

took away from my father. 

My mother was—I said yesterday she was a kind of legendary 

teacher. She died only a couple of years ago, and my brothers and 

I, we expected a small funeral. We expected not very many people 

to attend. I do not have a large family. And instead, just tons and 

tons of people showed up, and we could not figure out who they all 

were. And it turned out that these people, who were then middleaged, you know, 30-year-olds, 40-year-olds, whatever, they had had 

my mother as a sixth grade teacher decades ago, and they were 

people who just wanted to come and pay their respects because— 

they kept on coming up to me and my brothers and saying, ‘‘At the 

age of 12, your mother taught me that I could do anything.’’ And 

she was really demanding. She was a really tough teacher. You 

know, it was not—you did not slide by in Mrs. Kagan’s class. But 

she got the most out of people, and she changed people’s lives because of that. 

And if I look at my own career in this kind of strange way, not 

planned but in the sort of strange way, I think, you know, part of 

my life is my father and part of my life is my mother, that part 

of my life has been in public service. I have been really blessed 

with the opportunities I have had to work in Government and to 

serve this Nation. And then part of my life is teaching, which I 

take enormous pleasure and joy from. I am looking over your right 

shoulder—your left shoulder, right on my side, and there is a stuVerDate Nov 24 2008 12:24 Aug 23, 2011 Jkt 067622 PO 00000 Frm 00070 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\67622.TXT SJUD1 PsN: CMORC
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dent of mine right there. And maybe there are some other students 

that are around the room. And it is a kind of great thing. 

Chairman LEAHY. We are doing our best to make Jeremy blush. 

[Laughter.] 

Chairman LEAHY. But, you know, these things that I—I mean, 

each one of us, I think, can speak about what our parents, what 

they brought to us, and it seems to me they gave you some pretty 

strong values. So that speaks about who you are as a person, and 

now we go to some of your legal abilities, and some have criticized 

your background or your legal arguments. They have even gone to 

what did you write on college papers. 

The Chairman of the Republican National Committee criticized 

you last month for agreeing with Justice Thurgood Marshall’s observation that our Constitution, as originally drafted, was imperfect. The criticism surprised me because everything you read about 

the Founders, they knew that they would lay down something that 

would not cover every foreseeable thing. I mean, how could they 

possibly foresee what the country is today? They wrote in broad 

terms. They could not foresee every challenge. 

So what is your response to this criticism of you that was made 

because you agreed with Justice Marshall? How would you describe 

the way the Constitution has been amended since it was originally 

drafted? 

Ms. KAGAN. Well, Chairman Leahy, the Framers were incredibly 

wise men, and if we always remember that, we will do pretty well, 

because part of their wisdom was that they wrote a Constitution 

for the ages. And this was very much in their mind. This was part 

of their consciousness. You know, even that phrase that I quoted 

yesterday from the Preamble of the Constitution, I said the Constitution was ‘‘to secure blessings of liberty.’’ I did not quote the 

next part of that phrase. It said ‘‘blessings of liberty for themselves 

and their posterity.’’ So they were looking toward the future. They 

were looking generations and generations and generations ahead 

and knowing that they were writing a Constitution for all that period of time, and that circumstances and that the world would 

change, just as it had changed in their own lives very dramatically. 

So they knew all about change. 

And they wrote a Constitution, I think, that has all kinds of provisions in it, so there are some that are very specific provisions. It 

just says what you are supposed to do and how things are supposed 

to work. So it says to be a Senator, you have to be 30 years old, 

and that just means you have to be 30 years old. And it does not 

matter if people mature earlier, and it does not matter if people’s 

life spans change. You just have to be 30 years old because that 

is what they wrote and that is what they meant and that is what 

we should do. 

But there are a range of other kinds of provisions in the Constitution of a much more general kind, and those provisions were 

meant to be interpreted over time, to be applied to new situations 

and new factual contexts. So the Fourth Amendment is a great example of this. It says, ‘‘There shall be no unreasonable searches 

and seizures.’’ Well, what is unreasonable? That is a question. 

The Framers could have given like a whole primer on police practices, you know, which searches were reasonable and which 

62 

searches were not reasonable and lots of different rules for saying 

that. But they did not do that. And I think that they did not do 

that because of this incredible wisdom that they had that they 

knew that the world was going to change and that—you know, they 

did not live with bomb-sniffing dogs and with heat-detecting devices. 

Chairman LEAHY. And computers and—— 

Ms. KAGAN. And companies and all these questions that judges, 

courts, everybody is struggling with—police—in the Fourth Amendment context. 

And I think that they laid down—sometimes they laid down very 

specific rules. Sometimes they laid down broad principles. Either 

way we apply what they say, what they meant to do. So in that 

sense, we are all originalists. 

Chairman LEAHY. And we also have made changes, and the Bill 

of Rights, my own State of Vermont did not join the Union until 

they saw that the Bill of Rights was going to be ratified. We did 

the 19th Amendment, the expansion of votes for women; the 26th 

Amendment allowing 18-year-olds to vote. We have seen some 

major changes over the years. 

Yesterday I talked about how the Supreme Court interprets 

Plessy v. Ferguson. It was overruled by Brown v. Board of Education, the same Constitution. But people realized how changes are 

in society. I cannot imagine anybody saying we should go back to 

Plessy v. Ferguson because that was decided first. 

I do recall you being a special counsel with Senator Biden on this 

Committee during a Supreme Court confirmation hearing. I was 

here. I was a little bit further down the row at the time. But you 

wrote a law review article and book review after in which you argued that these proceedings should be occasions to engage in a 

meaningful discussion of legal issues. 

Now, you set the standard. You probably reread those words—— 

Ms. KAGAN. Many times. 

[Laughter.] 

Chairman LEAHY. I will bet. I will bet. As have it, and I guarantee you, as have every single member of this Committee. 

Ms. KAGAN. And you know what? They have been read to me 

many times, too. 

[Laughter.] 

Chairman LEAHY. And probably will again. 

How are you going to live up to that standard? 

Ms. KAGAN. Senator Leahy, before I answer that question, may 

I say a little bit more about what you started with about constitutional changes? 

Chairman LEAHY. Sure. 

Ms. KAGAN. Just to show my commitment to being open. All 

right? 

Chairman LEAHY. Go ahead. 

Ms. KAGAN. But you said something which just sort of triggered 

a thought in me, and I just wanted to—as you said, there are all 

these many changes that have happened to the Constitution, and 

I think it is important to realize that those changes do come in sort 

of two varieties. One is the formal amendment process, and I think 

63 

it was Senator Cornyn yesterday who talked about the formal 

amendment process, and that is tremendously important. 

So, you know, when Thurgood Marshall said that this was a defective Constitution, you know, he was talking about the fact that 

this was a Constitution that counted slaves as three-fifths of a 

human being, that did not do anything about that original sin of 

our country. And the 14th amendment changed that. The 14th 

Amendment was an enormous break after the Civil War, and it created a different Constitution for America. So partly the changes 

come in that way. 

But partly they come outside the formal amendment process as 

well, and what you said about Plessy and Brown is absolutely right, 

that if you look at the specific intent of the drafters of the 14th 

Amendment, they thought that the 14th Amendment was perfectly 

consistent with segregated schools. I mean, you just have to—you 

cannot really argue otherwise as a historical matter. But in Brown, 

the Court said otherwise, and, you know, step by step by step, decision by decision, in large part because of what Justice Marshall 

did, you know, we got to a place where the Court said it is inconsistent with the principle of equal protection of the laws that the 

drafters of the 14th Amendment laid down. It is inconsistent with 

that principle to have segregated schools. So that is a way in which 

change can happen as well. 

Now, to go to your real question—and I apologize for that digression. I have looked at that book review many times and been pointed to it, and here is what I think: I still think that the basic points 

of that book review were right, and the basic points were that the 

Senate has a very significant role to play in picking Supreme Court 

Justices, that is important who serves on the Supreme Court, that 

everybody should treat it as important, and that the Senate 

should—has a constitutional responsibility and should take that 

constitutional responsibility seriously, and also that it should have 

the information it needs to take that responsibility seriously, and 

part of that is getting some sense, some feel of how a nominee approaches legal issues, the way they think about the law, and I 

guess that is my excuse for giving you a little bit more even than 

you wanted about constitutional change. But I would say that there 

are limits on that. 

Now, some of the limits I talked about in that article itself. I 

mean, that article makes very clear that it would be inappropriate 

for a nominee to talk about how she will rule on pending cases or 

on cases beyond that that might come before the Court in the future. So the article was very clear about that line. 

Now, when I came before this Committee in my SG hearing, Senator Hatch and I had some conversation because Senator Hatch 

said to me—and I am sorry he is not here. He said to me he 

thought that I had the balance a little bit off. He said, you know, 

in addition—he basically said it is not just that people can ask you 

about cases that come before the Court; they can ask you a range 

of questions that are a little bit more veiled than that, but they are 

really getting at the same thing. And if it is not right to say how 

you would rule on a case that is going to come before the Court, 

or that might, then it is also not right to ask those kinds of quesVerDate Nov 24 2008 12:24 Aug 23, 2011 Jkt 067622 PO 00000 Frm 00073 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\67622.TXT SJUD1 PsN: CMORC
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tions, which essentially ask you the same thing without doing so 

in so many words. 

And I went back and forth a little bit with Senator Hatch, both 

in these hearings and on paper, and I basically said to Senator 

Hatch that he was right, that I thought that I did have the balance 

a little bit off and that I skewed it too much toward saying that 

answering is appropriate even when it would, you know, provide 

some kind of hints. And I think that that was wrong. I think that 

in particular it would not be appropriate for me to talk about what 

I think about past cases, you know, to grade cases, because those 

cases themselves might again come before the Court. 

Chairman LEAHY. Well, actually that would go into another area. 

You have been Solicitor General. You have argued a number of 

cases before the Supreme Court. The last person nominated directly to the Supreme Court not from a judgeship but from the administration was when Justice Rehnquist was working for the 

Nixon administration and went directly to the Supreme Court. And 

then, I was not in the Senate at that time, but I was there when 

he was being nominated for Chief Justice, and I asked him about 

his refusal to recuse himself from a case called Laird v. Tatum. 

The Laird case involved the Nixon administration’s surveillance of 

Americans. 

As the Justice Department’s legal expert when he was working 

with the Justice Department for the Nixon administration, he testified before Congress about that case, but then after his confirmation, he was part of a five-Justice majority in the very case in 

which he had testified, and he voted to dismiss the complaint alleging unlawful surveillance of lawful citizens’ political activity. 

Now, I realize Supreme Court Justices have to make up their 

own mind. I went back and forth with Justice Scalia about some 

things about his relationship with a former Vice President and 

then ruling on cases involving him. I regularly ask questions of 

nominees, not just to the Supreme Court but for other courts, about 

potential recusals. Now, Senator Sessions and I sent you a questionnaire, and in that we had the question of recusal, and you answered it. It appears to me you take this very seriously. 

Tell me about what principles are you going to use to make 

recusal decisions, if you can do it just briefly, but then tell us some 

of the cases where you anticipate you are going to have to recuse. 

Ms. KAGAN. Senator Leahy, I think certainly as I said in that 

questionnaire answer that I would recuse myself from any case in 

which I have been counsel of record at any stage of the proceedings, in which I have signed any kind of brief. And I think that 

there are probably about ten cases—I have not counted them up 

particularly, but I think that there are probably about ten cases 

that are on the docket next year in which that is true, in which 

I have been counsel of record on a petition for certiorari or some 

other kind of pleading. So that is a flat rule. 

In addition to that, I said to you on the questionnaire that I 

would recuse myself in any case in which I have played any kind 

of substantial role in the process. I think that that would include— 

I am going to be a little bit hesitant about this because one of the 

things I would want to do is talk to my colleagues up there and 

make sure that this is what they think is appropriate, too. But I 

65 

think that that would include any case in which I have officially 

formally approved something. So one of the things that the Solicitor General does is approve appeals or approve amicus briefs to be 

filed in lower courts or approve interventions. 

Chairman LEAHY. I wish you would look seriously at that. I was 

really shocked by former Chief Justice Rehnquist’s position on the 

Laird case. I thought that was almost an open-and-shut question 

for recusal. The reason I mention it, the Supreme Court also has 

to have the respect of the American people, and certainly people 

can expect the Supreme Court to rule on some cases where they 

may or may not agree with them. But so long as you have respect 

for the Court, then they will understand that. If they see Justices 

involved in cases in which they had a financial interest, which 

seems pretty clear-cut, or other direct interests and then they rule 

on them, you can imagine this erodes the credibility of the Court. 

And I am very concerned about that no matter whether it is a Republican President’s nominee or a Democratic President’s nominee. 

Two years ago, in District of Columbia v. Heller, the Supreme 

Court held the Second Amendment guarantees to Americans the 

individual right to keep and bear arms. I am a gun owner, as are 

many people in Vermont, and I agreed with the Heller decision. 

And just yesterday in McDonald v. the City of Chicago, the Court 

decided the Second Amendment right established in Heller is a fundamental right that applies to the States as well as the Federal 

Government. 

Now, that is not going to have any effect one way or the other 

in Vermont because we do not have gun laws in Vermont except 

during hunting season. We try to give the deer a fighting chance. 

But, otherwise, there are no rules. 

Is there any doubt after the Court’s decision in Heller and 

McDonald that the Second Amendment to the Constitution secures 

a fundamental right for an individual to own a firearm, use it for 

self-defense in their home? 

Ms. KAGAN. There is no doubt, Senator Leahy. That is binding 

precedent entitled to all the respect of binding precedent in any 

case. So that is settled law. 

Chairman LEAHY. As Solicitor General, did you have a role in the 

President’s domestic or foreign policy agenda? 

Ms. KAGAN. The Solicitor General does not typically take part in 

policy issues, and certainly—the only policy issues I think that I 

might have taken part in—and these are policy issues that would 

only overlap with litigation issues or some national security issues. 

But, otherwise, you know, the Solicitor General really is a legal officer. 

Chairman LEAHY. And if you were, though, involved in the domestic or foreign policy agenda, would that not be something that 

you would want to consider and issue a recusal? I mean, you mentioned national security issues, for example. 

Ms. KAGAN. Right. I think that anything that I substantially participated in as a Government official that is coming before the 

Court, I should take very seriously, as you say, the appropriateness 

of recusal. 

Chairman LEAHY. Now, I know that when Chief Justice Roberts 

and Justice Alito were before this Committee for their nomination 

66 

hearings—they had worked for Republican Presidents—they assured Senators that as lawyers for a Presidential administration 

they were representing the views of the President. All my friends 

on this side of the aisle thought that was fine, and the reason I 

mention that is I was concerned that some were saying almost a 

different standard, because back a number of years ago you worked 

for the Clinton administration. 

Would you agree with Chief Justice Roberts and Justice Alito 

that as a lawyer working for a Presidential administration the policies you worked to advance were the views and policies of the 

President for whom you worked? 

Ms. KAGAN. Absolutely, Senator Leahy. I worked for President 

Bill Clinton, and we tried to implement his policy views and objectives. 

Chairman LEAHY. Now, let me ask you this: We have heard talk 

about Harvard Law School and military recruiting when you were 

dean, and by enforcing the longstanding non-discrimination policy, 

you had provided military recruiters with access to students coordinated by the Harvard Law Veterans Association had been successfully used for years under your predecessor, Dean Clark, with the 

approval of military recruiters and the Department of Defense. 

Did you ever bar recruiters for the U.S. military from access to 

students at Harvard Law School while you were dean? 

Ms. KAGAN. Senator Leahy, military recruiters had access to 

Harvard students every single day I was dean. 

Chairman LEAHY. Well, let me ask you this: When you were 

there, did the number of students recruited go down at all while 

you were dean? 

Ms. KAGAN. I do not believe it did, Senator Leahy, so I am confident that the military had access to our students and our students had access to the military throughout my entire deanship, 

and that is incredibly important because the military should have 

the best and brightest people it can possibly have in its forces. And 

I think, you know, I said on many, many occasions that this was 

a great thing for our students to think about doing in their lives, 

that this is the most important and honorable way any person can 

serve his or her country. 

Chairman LEAHY. It has always been my experience also that if 

somebody wants to join the military, they usually are pretty motivated to join the military. My youngest son joined the Marine 

Corps out of high school. There were not recruiters on the high 

school campus, but he was able to find where the recruiter was in 

downtown Burlington and walked over there and signed up. My 

wife and I were very proud of him for doing that. But here there 

has been this implication given—that is why I want you to clear 

this up—that somehow military recruiters could not recruit Harvard students. That was not the case. Is that correct? 

Ms. KAGAN. That was not the case, Senator Leahy. The only 

question that ever came up, as you stated earlier, this was a balance for the law school because, on the one hand, we wanted to 

make absolutely sure that our students had access to the military 

at all times, but we did have a very longstanding—going back to 

the 1970s—anti-discrimination policy which said that no employer 

could use the Office of Career Services if that employer would not 

67 

sign a non-discrimination pledge that applied to many categories— 

race and gender and sexual orientation and actually veteran status 

as well. And the military could not sign that pledge. 

Chairman LEAHY. Because of ‘‘Don’t ask, don’t tell’’ ? 

Ms. KAGAN. Because of the ‘‘Don’t ask, don’t tell’’ policy. 

Chairman LEAHY. Which the Chairman of the Joint Chiefs of 

Staff now says should be repealed. 

I read a speech you gave to graduates of West Point 3 years ago. 

You said that military service is the noblest of all professions, and 

those cadets serve their country in this most important of all ways. 

That does not sound very anti-military to me. Tell me why you said 

that, what you did at West Point. 

Ms. KAGAN. Well, I said it because I believe it. I was so honored 

to be invited to West Point. They have a mandatory part of their 

curriculum that all students take a constitutional law course, and 

they invite a person each year to talk to the students about any 

legal subject. And it was really the greatest honor I think I have 

ever gotten to be asked to be that person. And I went up and I 

talked to the West Point students and faculty about something that 

I talked about yesterday, really, which was about the rule of law 

and about how it applied in the military context. And I was—I love 

that institution, the faculty and the students there. It was an incredible experience for me. 

But, you know, in addition, I mean, I tried in every way I could 

to make clear to the veterans of the military at Harvard Law 

School and people who were going to go into the military how much 

I respected their service, how much I thought that they were doing 

the greatest thing that anybody could do for their country. 

Chairman LEAHY. Well, I tend to agree. I know we felt that way, 

my wife and I felt that way about our son. We worried about him 

in the Marine Corps, but we were so proud of what he was doing. 

In fact, speaking of Marines, I read a May 21 Washington Post 

op-ed from Robert Merrill. He is a captain in the U.S. Marine 

Corps. He is a 2008 Harvard Law graduate. He is serving as a 

legal adviser to a Marine infantry battalion in southern Afghanistan, and I have been to that part of Afghanistan with our troops. 

It is not an easy place to be. He writes, ‘‘If Elena Kagan is antimilitary, she certainly didn’t show it. She treated the veterans at 

Harvard like VIPs. She was a fervent advocate of our veterans association.’’ 

He also writes, ‘‘I received perhaps the most thoughtful thanks 

of all just before graduating from Harvard Law School. The supposedly anti-military Elena Kagan sent me a handwritten note 

thanking me for my military service and wishing me luck in my 

new life as a Judge Advocate.’’ 

I want to thank you for doing that, too, and I will put in the 

record Captain Merrill’s op-ed. 

[The op-ed appears as a submission for the record.] 

Ms. KAGAN. Senator Leahy, this has been a sort of long process, 

this process, and sometimes an arduous one. I have only cried once 

during this process, and I cried when I woke up one morning and 

I read that op-end from Captain Merrill, that it meant just an 

enormous amount to me. He is a magnificent man doing great 

68 

things for our country, and his praise meant more to me than anybody’s. 

Chairman LEAHY. Well, I have not met him, but I was very 

touched by it. 

Senator Sessions. 

Senator SESSIONS. Thank you, Mr. Chairman, and I value our relationship, and we have disagreed over documents and a few 

things. But I believe you tried to handle this Committee in a fair 

way, and nobody has had more experience at it, and fundamentally 

I hope that we have, Dean Kagan, a good hearing. I hope that you 

can feel free to tell us precisely how you think so we can evaluate 

what you might be like on the bench. We can have brilliant and 

wonderful people, but if their approach to judging is such that I 

think allows them not to be faithful to the law, to not be able to 

honor that oath, which is to serve under the Constitution and laws 

of the United States, then we have got a problem. And I do not 

think that is judging. I think that becomes politics or law or something else. And so I would say that to you. I look forward to all 

of our members asking a number of questions to probe how you will 

approach your judgeship. 

Let me ask you this—— 

Chairman LEAHY. Incidentally, thank you for those kind words. 

Senator SESSIONS. Thank you, Mr. Chairman, and I meant that. 

One thing before I get started, I would like to ask about your discussion of constitutional change earlier. You indicated that there is 

an amendment process in the Constitution. There are two ways to 

do so in the Constitution. Is there any other way than those two 

ways that the Constitution approved to change the Constitution? 

Ms. KAGAN. Well, Senator Sessions, the Constitution is an enduring document. The Constitution is the Constitution. And the Constitution does not change except by the amendment process. But as 

I suggested to Chairman Leahy, the Constitution does over time, 

where courts are asked to think about how it applies to new sets 

of circumstances, to new problems, the things that the Framers 

never dreamed of. And in applying the Constitution case by case 

by case to new circumstances, to changes in the world, the constitutional law that we live under does develop over time. 

Senator SESSIONS. Well, developing is one thing, and many of the 

provisions, as you noted, they are not specific, but they are pretty 

clear, I think, but not always specific. But you are not empowered 

to alter that document and change its meaning. You are empowered to apply its meaning faithfully in new circumstances. Wouldn’t 

you agree? 

Ms. KAGAN. I do agree with that, Senator Sessions. That is the 

point I was trying to make, however inartfully, that you take the 

Fourth Amendment and you say there is unreasonable searches 

and seizures, and that provision stays the same unless it is amended. That is the provision. And then the question is: What counts 

as an unreasonable search and seizure? And new cases come before 

the Court, and the Court tries to think about, to the extent that 

one can glean any meaning from the text itself, from the original 

intent, from the precedents, from the history, from the principles 

embedded in the precedent, and the Court sort of step by step by 

69 

step, one case at a time, figures out what the Fourth—how the 

Fourth Amendment applies. 

Senator SESSIONS. Well, I do believe that there are some out 

there who think the Court really has an opportunity to update the 

Constitution and make it say what they would like it to say. I 

know we have seen a bit of a revival in the idea of the progressive 

legal movement that people in the early 20th century advocated 

views for changing America. They felt the Constitution often 

blocked them from doing that, and they were very aggressive in 

seeking ways to subvert or get around that Constitution. 

Your former colleague at the University of Chicago, Richard Epstein, said, ‘‘Any constitutional doctrine that stood in the way of 

the comprehensive social or economic reforms’’—he is referring to 

the progressives—’’had to be rejected or circumvented.’’ And he 

noted that, ‘‘The progressive influence continues to exert itself’’— 

he is talking about today—’’long past the New Deal in modern Supreme Court decisions that address questions of federalism, economic liberties, and takings for public use.’’ 

I believe that is a dangerous philosophy. I believe that is a philosophy not justified by any judge on the Court. And I am worried 

about the trends. I think the American people are. 

Greg Craig, the former Chief Counsel to President Obama, who 

has known you for some time, I understand, said of you, ‘‘She is 

largely a progressive in the mold of Obama himself.’’ 

Do you agree with that? 

Ms. KAGAN. Well, Senator Sessions, I am not quite sure how I 

would characterize my politics. But one thing I do know is that my 

politics would be, must be, have to be completely separate from my 

judging. And I agree with you to the extent that you are saying, 

look, judging is about considering a case that comes before you, the 

parties that come before you, listening to the arguments they 

make, reading the briefs they file, and then considering how the 

law applies to their case—how the law applies to their case, not 

how your own personal views, not how your own political views 

might suggest, you know, anything about the case, but what the 

law says, whether it is the Constitution or whether it is a statute. 

Now, sometimes that is a hard question, what the law says, and 

sometimes judges can disagree about that question. But the question is always what the law says. And if it is a constitutional question, it is what the text of the Constitution says, it is what the history says, the structure, precedent, but what the law says, not 

what a judge’s personal views—— 

Senator SESSIONS. Well, I agree, but the point I was just wanting 

to raise with you is that this idea, this concept of legal progressivism is afoot. I notice E.J. Dionne in yesterday’s Washington Post 

had an article, started off the second paragraph saying, ‘‘Democratic Senators are planning to put the right of citizens to challenge corporate power at the center of their critique of an activist 

conservative judging, offering a case that has not been fully aired 

since the great Progressive Era Justice Louis Brandeis.’’ And I 

think we do have this national discussion going on about a revival 

of progressivism. 

Let me ask you about this: Vice President Biden’s Chief of Staff 

Ron Klain, who served as Chief Counsel of this Committee, a 

70 

skilled lawyer, was Chief of Staff to Vice President Gore, also, I believe, who has known you for a number of years, said this about 

you: ‘‘Elena Kagan is clearly a legal progressive. I think Elena is 

someone who comes from the progressive side of the spectrum. She 

clerked for Judge Mikva, clerked for Justice Marshall, worked in 

the Clinton administration, in the Obama administration. I do not 

think there is any mystery to the fact that she is. As I said, more 

progressive role than not.’’ 

Do you agree with that? 

Ms. KAGAN. Senator Sessions, it is absolutely the case that I 

have served in two democratic administrations, and I think—— 

Senator SESSIONS. No, but I am asking, do you agree with the 

characterization that you are a legal progressive? 

Ms. KAGAN. Senator Sessions, I honestly do not know what that 

label means. I have worked in two Democratic administrations. 

Senator Graham suggested yesterday—and I think he is right— 

that you can tell something about me and my political views from 

that. But as I suggested to you, my political views are one thing, 

and the way—— 

Senator SESSIONS. Well, I agree with you, exactly, that you 

should not be condemned for being a political believer and taking 

part in the process and having views. But I am asking about his 

firm statement that you are a legal progressive, which means 

something. I think he knew what he was talking about. He is a 

skilled lawyer. He has been in the midst of the great debates of 

this country about law and politics, just as you have. And so I ask 

you again, do you think that is a fair characterization of your 

views? Certainly you do not think he was attempting to embarrass 

you or hurt you in that process, do you? 

Ms. KAGAN. I love my good friend Ron Klain, but I guess I think 

that people should be allowed to label themselves, and that is—you 

know, I do not know what that label means, and so I guess I am 

not going to characterize it one way or the other. 

Senator SESSIONS. I would just say, having looked at your overall 

record, having considered those two people who know you very 

well, I would have to classify you as someone in the theme of the 

legal progressive. 

Now, one of the things that we want to test, I guess, is your willingness to follow the law even if you might not agree with it. And 

Senator Leahy has asked you about Harvard and the military. Isn’t 

it true, isn’t it a fact that Harvard had full and equal access to the 

recruiting office, the Office of Career Services, when you became 

dean? 

Ms. KAGAN. Senator Sessions, the military had full access to our 

students at all times, both before I became dean and during 

my—— 

Senator SESSIONS. That is not the question. I know that—— 

Chairman LEAHY. Let her answer the question. 

Senator SESSIONS. All right. But, you know, it—go ahead. 

Ms. KAGAN. So the history of this is Harvard did have this antidiscrimination principle, and for many, many years, my predecessor, who was Bob Clark, had set up a system to ensure military 

access, but also to allow Harvard to comply with its anti-discrimination policy, which prohibited the Office of Career Services from 

71 

providing assistance to employers that could not sign the anti-discrimination pledge. And the accommodation that Bob worked out 

was that the veterans organization would instead sponsor the military recruiters. So the only thing that was at issue was essentially 

the sponsoring organization, whether it was the Office of Career 

Services or instead the student veterans organization. 

Senator SESSIONS. Please let me follow up on that. But on August 26th of 2002, Dean Clark, your immediate predecessor, acquiesced when Harvard’s financing had been threatened by the Federal Government for failure to comply with the law, which requires 

not just access but equal access to the offices on campus. He replied in this fashion to the Government: ‘‘This year and in future 

years, the law school will welcome the military to recruit through 

the Office of Career Services.’’ So that was the rule when you took 

office, was it not? 

Ms. KAGAN. It was the rule when I took office, and it remained 

the rule after I took office. For many years, DOD, the Department 

of Defense, had been very—— 

Senator SESSIONS. Well, not for many years—how many—well, 

go ahead. 

Ms. KAGAN. For a number of years, for a great number of years, 

the Department of Defense had been very accepting, had approved 

the accommodation that we had worked out. 

You are quite right that in 2002 DOD came to the law school and 

said, ‘‘Although this accommodation has been acceptable to us so 

far, it is not acceptable any longer, and instead we want the official 

Office of Career Services assistance.’’ 

Senator SESSIONS. But before—and Harvard acquiesced and 

agreed to do so. 

Ms. KAGAN. And Dean Clark agreed to do so, and that continued—— 

Senator SESSIONS. On a direct threat of cutting off of funds, and 

otherwise he indicated in his statement he would not have done so. 

Now, when you became dean, you personally opposed the ‘‘Don’t 

ask, don’t tell’’ policy and felt strongly about it, did you not? 

Ms. KAGAN. I do oppose the ‘‘Don’t ask, don’t tell’’ policy. 

Senator SESSIONS. And you did then. 

Ms. KAGAN. And I did then. 

Senator SESSIONS. And in 2003, not long after you became President, you said, ‘‘I abhor the military’s discrimination recruitment 

policy. I consider it a profound wrong, a moral injustice of the first 

order.’’ And you said that within 6 months or so of becoming dean, 

and that was an e-mail you sent to the entire law school. 

Ms. KAGAN. Senator Sessions, I have repeatedly said that I believe that the ‘‘Don’t ask, don’t tell’’ policy is unwise and unjust. I 

believed it then and I believe it now. And we were trying to do two 

things. We were trying to make sure that military recruiters had 

full and complete access to our students, but we were also trying 

to protect our own anti-discrimination policy and to protect the students whom it is—whom the policy is supposed to protect, which 

in this case were our gay and lesbian students. And we tried to do 

both of those things. 

Senator SESSIONS. Well, you could not do both, as it became clear 

as time went on. In fact, there was a protest on campus the next 

72 

year, and you participated in that protest and spoke out saying, ‘‘I 

am very opposed to two Government policies that directly violate 

our policy of non-discrimination and directly impact our students. 

The first is ‘Don’t ask, don’t tell’: the second one is the Solomon 

amendment, which effectively forces educational institutions to 

make exceptions to their non-discrimination policy.’’ 

So you sent that out to the—you said that at that meeting. And 

in addition to that, a lawsuit was filed in a distant circuit, the 

Third Circuit, and you participated in a filing of a brief attacking 

the ‘‘Don’t ask, don’t tell’’ policy. Is that correct? 

Ms. KAGAN. Senator Sessions, that is not quite correct. The lawsuit itself brought a constitutional challenge to the ‘‘Don’t ask’’— 

to the Solomon amendment. We did not participate in that challenge. What the brief that I filed did do was to argue, try to argue 

that Harvard’s accommodation, which allowed—which, you know, 

welcomed the military on campus, but through our veterans organization, we tried to argue that that accommodation was consistent 

with the Solomon amendment, and that is what we argued to the 

Third Circuit. 

Senator SESSIONS. Well, and they eventually—the Supreme 

Court did not agree with that. But after the Third Circuit ruled 2– 

1 questioning the constitutionality of the statute, you immediately, 

the very next day, changed the policy at Harvard and barred the 

military from the Office of Career Services, the equal access the 

Solomon amendment had required. Is that correct? 

Ms. KAGAN. Senator Sessions, after the Third Circuit ruled the 

Solomon amendment unconstitutional—and the Third Circuit was 

the only appellate court to have issued a decision on that question 

and did rule the Solomon Amendment unconstitutional—I thought 

it appropriate at that point to go back to what had been the 

school’s longstanding policy, which had been to welcome the military onto the campus but through the auspices of the veterans organization rather than through the auspices of our Office of Career 

Services. 

Senator SESSIONS. Well, the veterans were not interested in taking on that burden, and that was not the equal access that the Solomon amendment, which I worked on to pass, required. Congress 

frankly was very frustrated at the law schools. We passed four or 

five versions of the Solomon amendment to get around every maneuver that occurred on the campuses. 

Now, isn’t it a fact that the mandate or the injunction, never 

issued by the Third Circuit, that the Third Circuit holding did not 

apply to Harvard at the time you stopped complying with the Solomon amendment? And isn’t it a fact that you were acting in violation of Harvard’s agreement and the law when you reversed policy? 

Ms. KAGAN. Senator Sessions, we were never out of compliance 

with the law. Nobody ever suggested that Harvard should be sanctioned in any way. The only question was whether Harvard should 

continue—had continued to remain eligible for Federal funding. 

And after DOD came to us and after DOD told us that it wanted 

law schools to essentially ignore the Third Circuit decision, that it 

wanted—that it was going to take that decision to the Supreme 

Court and that it wanted law schools to continue to do what they 

73 

had been doing, we did change back. We did precisely what DOD 

asked us to do, and DOD never withheld—— 

Senator SESSIONS. Well, you did not, Ms. Kagan. You did not do 

what the DOD asked you to do. Just answer this—put your legal 

hat on for a second. The Third Circuit opinion never stayed the enforcement of the Solomon amendment at Harvard, did it? Did that 

law remain in effect? 

Ms. KAGAN. Senator Sessions, the question was—— 

Senator SESSIONS. No, that is my question to you. Did the law 

remain in effect at all times at Harvard? 

Ms. KAGAN. The Solomon amendment remained in effect, but we 

had always thought that we were acting in compliance with the 

Solomon amendment, and for many, many years, DOD agreed with 

us. 

After the Third Circuit, I thought it was appropriate to go back 

to our old policy, which previously DOD had thought complied with 

the Solomon Amendment. When DOD came to us and said, no, the 

Third Circuit really has not changed matters because we are going 

to take this to the Supreme Court and we want law schools really 

to ignore what the Third Circuit said, DOD and we had some discussions, and we went back to doing it exactly the way DOD wanted to. In the interim—— 

Senator SESSIONS. Well, let us get more basic about it. The military—you stopped complying, and that season was lost before the 

military realized—frankly, you never conveyed that to them in a 

straight-up way like I think you should have. You just started giving them a run-around. The documents we have gotten from the 

Department of Defense say that the Air Force and the Army says 

they were blocked, they were stonewalled, they were getting the 

run-around from Harvard. By the time they realized that you had 

actually changed the policy, that recruiting season was over, and 

the law was never not in force. 

I feel like you mishandled that. I am absolutely confident you 

did. But you continued to persist with this view that somehow 

there was a loophole in the statute that Harvard did not have to 

comply with after Congress had written a statute that would be 

very hard to get around. What did the Supreme Court do with your 

brief? How did they vote on your brief attacking the effectiveness 

of the Solomon amendment to assure equal access at Harvard? 

Ms. KAGAN. Senator Sessions, if I might, you had suggested that 

the military lost a recruiting season, but, in fact, the veterans organization did a fabulous job of letting all our students know that the 

military recruiters were going to be at Harvard during that recruiting season, and military recruiting went up that year, not down. 

Now, you are exactly right that the Supreme Court did reject our 

amicus brief. Again, we filed an amicus brief not attacking the constitutionality of the Solomon amendment, but instead saying that 

essentially the Harvard policy complied with the Solomon amendment. The Supreme Court rejected it 9–0, unanimously. 

Senator SESSIONS. But even before that, the military said the law 

was still in effect, Harvard had no right to get around it, and they 

should comply even before the Supreme Court issued a ruling, and 

they had to contact the university’s counsel and the president, Mr. 

Larry Summers, and Mr. Summers agreed that the military should 

74 

have full and equal access before even the Supreme Court ruled, 

but after you had denied equal access. Isn’t that right? 

Ms. KAGAN. Senator Sessions, we had gone back and done exactly what the Department of Defense had asked us to do prior to 

the time that the Supreme Court ruled. We had done it—— 

Senator SESSIONS. Wait a minute. You asked them—what they 

asked you to do after the Third Circuit ruled, you denied them access. They had to insist and demand that they have equal access 

because the law was still in effect. You did not agree to that. You 

had reversed that policy, and the president of the university overruled your decision. According to internal DOD documents, they 

say that President Summers agreed to reverse the policy, the dean 

remains opposed. 

Ms. KAGAN. Senator Sessions, Larry Summers and I always 

worked cooperatively on this policy. I did not ever do anything that 

he did not know about, and he never did anything that I did not 

approve of. With respect to the decision that you are talking about, 

this was a joint decision that Larry and I made that because DOD 

thought that what we were doing was inappropriate, we should, in 

fact, reverse what we had done. You know, that period lasted for 

a period of a few months in my 6-year deanship, and long before 

the Supreme Court issued its ruling in the FAIR v. Rumsfeld case, 

we were doing exactly what DOD asked us to do. 

Senator SESSIONS. So it is your testimony that the decision you 

made immediately after the Third Circuit opinion, you concluded 

was inappropriate, you and President Summers, and you reversed 

that policy later? 

Ms. KAGAN. Senator Sessions, what I did after the Third Circuit 

decision was to say, look, the only appellate court to have considered this question has struck down the statute. We have always 

thought that our policy was in compliance with the statute. The appropriate thing for me to do, really the obligation that I owed to 

my school and its longstanding policy, was to go back to our old accommodation policy which allowed the military full access, but 

through the veterans organization. When DOD came to us and said 

that it thought that that was insufficient, that it wanted to essentially ignore the Third Circuit decision, because it was taking it up 

to the Supreme Court, when they came back to us, we went 

through a discussion of a couple of months and made a decision to 

do exactly what DOD wanted. 

Senator SESSIONS. Well, you did what DOD wanted when they 

told the president and the counsel for the university they were 

going to lose some $300 million if Dean Kagan’s policy was not reversed. Isn’t that a fact? 

Ms. KAGAN. Senator Sessions, we did what DOD asked for because we have always, you know, tried to be in compliance with the 

Solomon amendment, thought that we were. When DOD—DOD 

had long held that we were. When DOD came back to us and said, 

‘‘No, notwithstanding the Third Circuit decision, we maintain our 

insistence that you are out of compliance with the Solomon amendment,’’ we said OK. 

Senator SESSIONS. Well, in fact, you were punishing the military. 

The protest that you had, that you spoke to on campus, was at the 

very time in the next building or one or two buildings nearby, the 

75 

military were meeting there. Some of the military veterans, when 

they met with you the first time, expressed concern about an increasingly hostile atmosphere on the campus against the military. 

Didn’t they express that to you? 

Ms. KAGAN. Senator Sessions, I think, as I said to Senator 

Leahy, that I tried in every way I could throughout this process to 

make clear to all our students, not just to the veterans but to all 

our students, how much I valued their service and what an incredible contribution I thought that they made to the school. I—— 

Senator SESSIONS. I do not deny that you value the military. I 

really do not. But I do believe that the actions you took helped create a climate that was not healthy toward the military on campus. 

But let me ask you this: You keep referring in your e-mails and 

all to the military policy. Isn’t it a fact that the policy was not the 

military policy but a law passed by the Congress of the United 

States, those soldiers may have come back from Iraq or Afghanistan, they were appearing to recruit on your campus, were simply 

following the policy of the U.S. Congress effectuated by law, not 

their idea, and that you were taking steps to treat them in a second-class way, not give them the same equal access because you 

deeply opposed that policy. Why wouldn’t you complain to Congress 

and not to the dutiful men and women who put their lives on the 

line for America every day? 

Ms. KAGAN. Senator Sessions, you are, of course, right that the 

Solomon amendment is law passed by Congress, and we never suggested that any members of the military, you know, should be criticized in any way for this. Quite to the contrary, you know, I tried 

to make clear in everything I did how much I honored everybody 

who was associated with the military on the Harvard Law School 

campus. All that I was trying to do was to ensure that Harvard 

Law School could also comply with its anti-discrimination policy, a 

policy that was meant to protect all the students of our campus, 

including the gay and lesbian students who might very much want 

to serve in the military, who might very much want to do that most 

honorable kind of service that a person can do for her country. 

Senator SESSIONS. Well, I would think that that is a legitimate 

concern, and people can disagree about that, and I respect your 

view on that. What I am having difficulty with is why you would 

take the steps of treating the military in a second-class way, to 

speak to rallies, to send out e-mails, to immediately without legal 

basis—because the Solomon Amendment was never at any time not 

in force as a matter of law—why you would do all those things simply to deny what Congress required, that they have equal access 

as anyone else? 

Ms. KAGAN. Senator, the military at all times during my deanship had full and good access. Military recruiting did not go down. 

Indeed, in a couple of years, including the year that you are particularly referring to, it went up, and it went up because we ensured that students would know that the military recruiters were 

coming to our campus, because I talked about how important military service was, because our veterans organization and the veterans on campus did an absolutely terrific job, a terrific service to 

their fellow students in talking to them about the honor of military 

service. 

76 

Senator SESSIONS. Well, I would just say, while my time is running down, I am just a little taken aback by the tone of your remarks because it is unconnected to reality. I know what happened 

at Harvard. I know you were an outspoken leader against the military policy. I know you acted without legal authority to reverse 

Harvard’s policy and deny the military equal access to campus 

until you were threatened by the U.S. Government of loss of Federal funds. This is what happened. It—— 

Chairman LEAHY. The Senator’s time has expired, but—— 

Senator SESSIONS.—is surprising to me—— 

Chairman LEAHY.—you can respond to that if you want. 

Senator SESSIONS.—that it did not happen in that way, and I 

think if you had any complaint, it should have been made to the 

U.S. Congress, not to those men and women who we send in harm’s 

way to serve our Nation. 

Chairman LEAHY. Especially because of the number of people, including the dean of West Point, who has praised you and said that 

you are absolutely not anti-military, I will let you respond, take 

time to respond to what Senator Sessions just said. 

Ms. KAGAN. Well, thank you, Senator Leahy. You know, I respect 

and, indeed, I revere the military. My father was a veteran. One 

of the great privileges of my time at Harvard Law School was dealing with all these wonderful students that we had who had served 

in the military and students who wanted to go to the military. And 

I always tried to make sure that I conveyed my honor for the military, and I always tried to make sure that the military had excellent access to our students. And in the short period of time, Senator Sessions, that the military had that access through the veterans organization, military recruiting actually went up. 

But I also felt a need to protect our—to defend our school’s very 

longstanding anti-discrimination policy and to protect the men and 

women, the students who were meant to be protected by that policy: the gay and lesbian students who wanted to serve in the military and do that most honorable kind of service. And those are the 

two things that I tried to do, and I think, again, the military always had good access at Harvard Law School. 

Chairman LEAHY. Senator Kohl—— 

Senator SESSIONS. Mr. Chairman, I would just—— 

Chairman LEAHY. Senator Kohl. 

Senator KOHL. Thank you so much, Senator Leahy. 

Ms. Kagan, you will testify this week for many hours regarding 

your philosophy, your approach to judging, as well as many specific 

legal issues. And yet one question that I suspect most of the American people are most curious about is the simplest but perhaps the 

most important one. Why do you want to be a Supreme Court Justice? Anyone in your position would be flattered and highly honored 

to be nominated to the Supreme Court because it is the pinnacle 

of the legal profession. But whatever this appointment means to 

you, what is most important to us is what it will mean for the 

American people. 

So please tell us: Why do you want to serve on the Supreme 

Court? What issues motivate you the most? And what excites you 

about the job? 

77 

Ms. KAGAN. Senator Kohl, it is an opportunity to serve this country in a way that, you know, fits with whatever talents I might 

have. I believe deeply in the rule of law. The Supreme Court is the 

guardian of the rule of law. And to be on the Supreme Court and 

to have that significant and indeed awesome responsibility to safeguard the rule of law for our country is an honor that comes to 

very few people and is just an opportunity to serve. And, you know, 

that is—— 

Senator KOHL. Well, I appreciate that very much, but as we said, 

it is a tremendous honor clearly to serve and to safeguard the rule 

of law, and I am sure you feel you are capable of doing that. But 

what are the issues that bring you here today? What are the things 

you feel most passionate about? How are you going to make a difference as a Supreme Court Justice from any of the others who 

might be sitting here instead of you today? 

Ms. KAGAN. Well, Senator Kohl, I do think that what motivates 

me primarily is the opportunity to safeguard the rules of law, 

whatever the issues that might come before the Court. And I think 

that that is the critical thing. If you do not have a rule of law, if 

you do not have an independent judiciary that enforces rights, that 

enforces the law, then no rights are going to be safe or protected. 

And I think that has to be first and foremost in every judge’s mind, 

not in the way a legislator might care about some particular 

issue—I care about the environment or I care about the economy, 

or something like that. A judge cannot think that way. A judge is 

taking each case that comes before her and is thinking about how 

to do justice in that case and is thinking about how to protect the 

rule of law in that case, how to enforce the law, whether it is the 

Constitution or a statute. 

Senator KOHL. I am sure that those things are true, but 

Thurgood Marshall cared passionately about civil rights; Justice 

Ginsburg had a passion for women’s rights; your father had a passion for tenants’ rights. I am sure you are a woman of passion. 

Where are your passions? 

Ms. KAGAN. Senator Kohl, I think I will take this one case at a 

time if I am a judge, and I think I will try to evaluate every case 

fairly and impartially, try to do justice in that case. I think it 

would, you know, not be right for a judge to come in and say, oh, 

I have a passion for this and that, and so I am going to, you know, 

rule in a certain way with regard to that passion. 

I am much more a person who I look at an issue before me, a 

case that might come before me, try to figure out what is right with 

respect to that issue, with respect to that case, and if you are a 

judge, of course, that means trying to figure out what is right on 

the law. 

Senator KOHL. Many Americans following the Supreme Court 

and our hearings may feel like the Supreme Court is remote and 

has no impact on their day-to-day lives. So tell us how you are 

going to help the American people should you be confirmed? How 

are you going to make a difference in their lives? 

Ms. KAGAN. Senator Kohl, I think a judge’s job is just to decide 

each case, and it is hard to say exactly how a judge would make 

a difference in their lives because you just do not know which cases 

are going to come before you. It is not like a legislature where you 

78 

get to kind of craft an agenda and say this year we are going to 

do the following three things: we are going to work on energy legislation, or we are going to work on civil rights legislation. 

You know, for a judge it is case by case by case. that is, I think, 

the right way for a judge to do a job, is one case at a time, thinking 

about the case fairly and objectively and impartially. And in the 

course of doing that, of course, people’s lives change because law 

has an effect on people, and you hope very much that law improves 

people’s lives and has a beneficial effect on our society. That is the 

entire purpose of law. 

But this is not a job, I think, where somebody should come in 

with a particular substantive agenda and try to shape what they 

do to meet that agenda. It is a job where the principal responsibility is deciding each case, listening to the parties in that case 

fairly and objectively, and trying to make a good decision on the 

law. 

Senator KOHL. Well, that is true, but it is also true, as you know, 

that the Supreme Court decides which cases to take up. There are 

thousands of cases that come before you—’’you’’ collectively as Justices—to decide on which ones you will hear. So you are not just 

processing cases as they are placed before you. You and the other 

Justices decide which cases you are going to judge. 

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

Ms. KAGAN. Senator Kohl, you are exactly right that the Supreme Court does decide which cases to hear. It is a highly discretionary docket. There are about 8,000 certiorari petitions every 

year, and only about 80 of them are now taken by the Supreme 

Court, so maybe one in a hundred. 

But there are some pretty settled standards for deciding which 

cases to take. The first thing always is if there is a circuit split, 

because what the Supreme Court does, one of the principal roles 

of the Supreme Court is to apply uniformity across our country so 

that if one court says X and another court says Y and another says 

Z with respect to the same issue, the Supreme Court is the one 

that says we have to take this case so we can just set a clear rule, 

state what the law is so that everybody then can follow it across 

the country. So that is on reason why the Court typically grants 

cert on a case. 

Another set of cases where the Court very typically, often, almost 

always grants certiorari is when a legislature—excuse me, when 

another court has invalidated an act of Congress, when a court has 

said that an act of Congress is unconstitutional. And there the 

Court almost always says, well, acts of Congress, that is a serious 

thing to invalidate an act of Congress. You know, for the most part 

we want to defer to the legislative branch, to the decisions of our 

elected branches. So that is such a serious thing that the Court is 

going to take that case. 

And then I suppose that there is a third category of cases, which 

is just extremely important legal issues, you know, cases where 

there is not a conflict among the courts of appeals and there is no 

invalidation of an act of Congress, but the case presents some just 

strikingly significant legal issue that it is appropriate for the Supreme Court to consider and to issue a decision on. And I think, 

you know, in each year there is some number of those cases. 

79 

Senator KOHL. General Kagan, as many of us said yesterday, we 

appreciate the perspective that you would bring to the Court as 

someone who has not been a judge. As Senator Feinstein said, that 

is a refreshing quality. And we appreciate the many thousands of 

documents that you have made available to us from your work 

throughout your career. Yet they shed little light on your judicial 

philosophy or how you would analyze and evaluate problems as a 

judge. That is why these hearings are so important so that the 

American people can get a sense of what your judicial philosophy 

is. 

At his confirmation hearings, Justice Alito said, ‘‘If you want to 

know what sort of a Justice I will be, look at what sort of a judge 

that I have been.’’ And other nominees have said similarly. 

Since we do not have a judicial record for you, how should we 

evaluate you so that we do have an idea as to what kind of a Justice you will be? What decisions or actions can you point to in your 

past and your career that demonstrate to us what kind of a Justice 

you will be? 

Ms. KAGAN. Senator Kohl, I think you can look to my whole life 

for indications of what kind of a judge or Justice I would be. I 

think you can certainly look to my tenure as Solicitor General and 

the way I have tried to approach and handle that responsibility. I 

think you can look to my tenure at Harvard Law School and think 

about the various things I did there and the approach that I took. 

I think you can look to my scholarship, to my speeches, to my talks 

of various kinds. So I think it may not be quite so easy as with 

a person where you can just say, well, read this body of decisions. 

But I think I have had very much a life in the law, a very public 

life in the law. Senator Schumer referred yesterday to all my scholarship, to all my talks. And I think, you know, you can look to all 

those things. 

I hope what they will show—and this is for the Committee to determine, but I hope what they will show is a person who listens 

to all sides, who is fair, who is temperate, who has made good and 

balanced decisions, whether it is as Solicitor General or whether it 

is as dean of Harvard Law School or in any other capacity. 

Senator KOHL. Well, I think this is a good time to refer to your 

1995 law review article in which you criticized Supreme Court—— 

Ms. KAGAN. It has been half an hour since I heard about that 

article. 

[Laughter.] 

Senator KOHL. Here we are. You said back then, ‘‘When the Senate ceases to engage nominees in meaningful discussion of legal 

issues, the confirmation process takes on an air of vacuity and 

farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public.’’ 

However, more recently, in the meeting that we had, you indicated that you had reconsidered these views, and I think we are 

getting some indication of that here at the moment. 

How do you feel about that reconsideration versus what you said 

back in 1995? 

Ms. KAGAN. Well, Senator Kohl, I do think that much of what I 

wrote in 1995 was right, but that I in some measure got a bit of 

the balance off. So what I wrote in 1995 was that the Senate had 

80 

an important role to play, that the Senate should take that role 

very seriously, that the Senate should endeavor to think about 

what a nominee was—what kind of Justice a nominee would make, 

and that that was all appropriate. And I also said that I thought 

it was appropriate for nominees to be as forthcoming as they possibly could be. And I continue to believe that, and I am endeavoring and will endeavor to do so. 

I did think, as I suggested earlier, that I got the balance a little 

bit off. I said then, even then in that 1995 actual, that it was inappropriate for a nominee to ever give any indication of how she 

would rule in a case that would come before the Court. And I 

think, too, it would be inappropriate to do so in a somewhat veiled 

manner by essentially grading past cases. But I do think it is very 

appropriate for you to question me about my judicial philosophy, on 

the kinds of sources I would look to in interpreting the Constitution 

or interpreting a statute, about my general approach to judicial decisionmaking, about the degree to which I would defer or not defer 

to acts of Congress and the States. I mean, all of those things I 

think ought to be a subject of debate. 

Senator KOHL. Well, back in that 1995 article, you wrote that 

one of the most important inquiries for any nominee, as you are 

here today, is to ‘‘inquire as to the direction in which he or she 

would move the institution.’’ In what direction would you move the 

Court? 

Ms. KAGAN. Senator Kohl, I do think that that is the kind of 

thing that—all I can say, Senator Kohl, is that I will try to decide 

each case that comes before me as fairly and objectively as I can. 

I cannot tell you I will move the Court in a particular way on a 

particular issue because I just do not know what cases—— 

Senator KOHL. You said in 1995, ‘‘It is a fair question to ask a 

nominee in what direction’’—this is your quote—‘‘would you move 

the Court.’’ 

Ms. KAGAN. Well, it might be a fair question. 

Senator KOHL. I am not going to get necessarily—— 

[Laughter.] 

Senator KOHL. All right. Let us move on. Comparison to other 

judges. General Kagan, the basic purpose of this hearing is to learn 

what kind of a person you are and what kind of a justice you will 

be when you are confirmed. One way that we gain insight into your 

judicial philosophy is to learn which Justices you most identify 

with. Yesterday you spoke highly of Justice Stevens and said his 

qualities are those of a model judge. In addition to Justice Stevens, 

can you tell us the names of a few current Justices or Justices of 

the recent past with whom you most identify in terms of your judicial philosophy and theirs? 

Ms. KAGAN. Well, I do very much admire Justice Stevens, and I 

wanted to say so as he left the Court because I think he has done 

this country long and honorable service, that he has been simply 

a marvelous Justice in his commitment to the rule of law and his 

commitment to principle. 

That is not say that Justice Kagan—if I am so lucky as to ever 

be called that, ‘‘Justice Kagan’’—would be Justice Stevens. It is just 

to say that I have great admiration for the contribution that Justice Stevens has made over many period of years, obviously, but 

81 

Justice Stevens’ contribution to the Court is not calculable in years. 

It is this extraordinary commitment to the rule of law that was 

there in his first year and is there in his last. 

I think it would be just a bad idea for me to talk about current 

Justices. I have expressed, you know, admiration for many of them. 

Senator KOHL. My, oh my, oh my. All right. Let us move on. 

[Laughter.] 

Senator KOHL. General Kagan, to help us understand what kind 

of a Justice you would be if you are confirmed, I would like to briefly describe the philosophies of two Justices and ask you which 

comes closest to your view. 

Justice Scalia considers himself to be an originalist who interprets the Constitution by looking solely at the text. He rejects the 

notion of a living Constitution and only gives the text of the Constitution ‘‘the meaning that it bore when it was adopted by the people in 1787.’’ 

In contrast, Justice Souter has criticized this purely textual approach as having ‘‘only a tenuous connection to reality.’’ He believes 

that the plain text of the Constitution as written in 1787 does not 

resolve the conflict in many of today’s tough cases; rather, Justice 

Souter believes judges must look at the words and seek ‘‘to understand their meaning for living people.’’ 

Which view of the constitutional interpretation comes closer to 

your view, and why? 

Ms. KAGAN. Senator Kohl, I do not really think that this is an 

either/or choice. I think that there are some circumstances in which 

looking to the original intent is the determinative thing in a case, 

and other circumstances in which it is likely not to be. And I think 

in general judges should look to a variety of sources when they interpret the Constitution, and which take precedence in a particular 

case is really a kind of case-by-case thing. 

The judges always should look to the text. There is no question 

that if the text simply commands a result—Senators, you can only 

be a Senator if you are 30 years old—then the inquiry has to stop. 

But there are many, many provisions of the Constitution, of course, 

in which that is not the case. When that is not the case, when the 

text is subject to one or more interpretations, then often you look 

to the original intent and you consider that original intent carefully. 

An example of that is in the Heller case, the gun case, where actually all nine Justices in that ruling looked to the original intent. 

They had different views of what the original intent was, but all 

nine of them thought it was important and appropriate to actually 

think about what the Framers had intended when they wrote that 

language, which of those two meanings the individual right or the 

collective right they had in mind. 

But in other cases, the original intent is unlikely to solve the 

question, and that might be because the original intent is unknowable or it might be because we live in a world that is very different 

from the world in which the Framers lived. 

In many circumstances, precedent is the most important thing. 

One good example of this is an interpretation of the First Amendment where the Court very rarely, actually, says, you know, what 

did the Framers think about this? The Framers actually had a 

82 

much more constricted view of free speech principles than anybody 

does in the current time. And when you read free speech decisions 

of the Court, they are packed with reference to prior cases rather 

than reference to some original history. 

So I think it is a little bit case by case by case, provision by provision by provision, and I would look at this very practically and 

very pragmatically, that sometimes some approach—one approach 

is the relevant one and will give you the best answer on the law, 

and sometimes another. 

Senator KOHL. I would like to talk about antitrust a little bit, 

General Kagan. As you know, it has now been 120 years since the 

passage of the Sherman Act, our Nation’s landmark antitrust law. 

For more than a century, this measure has protected the principles 

that we hold most dear: competition, consumer choice, and giving 

all businesses a fair opportunity to succeed or fail in the free market. So those of us who are strong believers in our free market, 

capitalistic economic system should also support antitrust law, I 

believe. 

In the words of the Supreme Court in 1972, antitrust law is a 

‘‘comprehensive charter of economic liberty.’’ Recently, however, we 

have seen many industries become increasingly concentrated and 

consumers having fewer choices. 

In the last few years, we have seen a series of antitrust cases at 

the Supreme Court in which the Supreme Court majority has sided 

with the defendant and as a result made it more difficult for consumers and competitors to bring their antitrust cases. Many are 

concerned that the cumulative effect of these cases has harmed 

consumers because they are the ones who will suffer by paying the 

high prices that result from unchallenged anticompetitive practices. 

These cases include the Leegin, Twombly, and Trinko cases, among 

others. 

Do you share this concern? Should we be worried that as a result 

of these cases we have reached a tipping point where the antitrust 

laws may not be protecting consumers as much as they were intended to do? 

Ms. KAGAN. Senator Kohl, I know that several of those cases you 

mentioned are ones in which there is considerable debate. The 

Leegin case is a good example. The Leegin case is one in which the 

Court overturned a very long-term precedent, many, many decades 

precedent, maybe 100 years after the Dr. Miles precedent. And the 

Court did so really on the basis of new economic theory, new economic understandings, but there is some question, to be sure, as 

to how new economic understandings ought to be incorporated into 

antitrust law. There, the question was how one should look at 

vertical agreements rather than horizontal agreements, agreements 

between a manufacturer and a distributor, and the question of 

whether those agreements are per se uncompetitive or whether 

they should be subject to more of a rule-of-reason analysis. And I 

believe the Court had held that they were per se uncompetitive, 

non-competitive, and per se violative of the antitrust laws and 

changed that to a rule-of-reason analysis. 

But I think on the one hand it is clear that antitrust law needs 

to take account of economic theory and economic understandings, 

but it needs to do so in a careful way and to make sure that it does 

83 

so in a way that is consistent with the purposes of the antitrust 

laws, which is to ensure competition, which is, as you say, to be 

a real charter of economic liberty. 

Senator KOHL. Well, let us talk about the Leegin case. It was a 

5–4 decision in which the Supreme Court in 2007 overturned what 

you correctly referred to as a 96-year-old precedent and held that 

a manufacturer setting retail prices no longer automatically violated antitrust law. This means as a practical matter a manufacturer is now free to set minimum retail prices for its products and 

prohibit discounting. 

What do you think of this decision? Do you think it was appropriate for the Supreme Court by judicial fiat to overturn a nearly 

century-old decision on the meaning of the Sherman Act that businesses and consumers had come to rely on and which had never 

been altered by Congress? 

Ms. KAGAN. Senator Kohl, I think that that decision does present 

the question that we just talked about, which is, you know, how 

sort of new economic theory ought to be incorporated into antitrust 

law, and especially to the extent that the Court has already ruled 

on a case, to the extent that the Court already has settled precedent in the area, it does raise the question of what it takes to reverse a precedent, a question on which there is a large body of law. 

I am not going to grade the Leegin decision, but I do recognize 

very much the concern that some have said about it, which is this 

question of when you have precedent in the area, when the antitrust laws have been interpreted in one way over time, and new 

economic understandings, new economic theory might suggest a different approach, how one balances those two things. And I think 

that is a very important question for the Court going forward. 

Senator KOHL. General Kagan, how do you feel about permitting 

cameras in the Supreme Court for oral arguments? 

Ms. KAGAN. Well, Senator Kohl, this is actually something that 

I spoke about when I was nominated as solicitor general before I 

was ever nominated to this Court. So I have expressed a view on 

this question and I recognize that some members of the Court have 

a different view. And certainly when and if I get to the Court I will 

talk with them about that question. But I have said that I think 

it would be a terrific thing to have cameras in the courtroom. 

And the reason I think is as when you see what happens there, 

it’s an inspiring site. I guess I talked about this a little bit in my 

opening statement yesterday. I basically attend every Supreme 

Court argument. You know, once a month I argue before the Court 

and when I’m not arguing I’m sitting in the front row watching 

some member of my office or somebody else argue. And it’s an incredible site because all of these—all nine Justices, they’re so prepared, they’re so smart, they’re so thorough, they’re so engaged, 

their questioning is rapid-fire. You’re really seeing an institution of 

government at work, I think, in a really admirable way. And, of 

course, the issues are important ones. I mean, some of them will 

put you to sleep, you know, but—— 

[Laughter.] 

Ms. KAGAN—[continuing]. But a lot of them, the American people 

should be really concerned about and should be interested in. And 

so I think it would be a great thing for the institution and more 

84 

important I think it would be a great thing for the American people. 

Having said that, I mean, I have to say, I understand that some 

of the current justices have different views, have concerns about it, 

maybe that they think it would actually change the way the Supreme Court arguments do work. And I would, you know, very 

much want to talk with them about those views. And, on almost 

every issue I’m open to being persuaded that I’m wrong. But on 

this one, I have expressed a real view and it’s the one I hold is that 

it would be a great thing for the Court and it would be a great 

thing for the American people. 

Senator KOHL. All right. General Kagan, we all understand that 

you may be reluctant to comment on cases that will or are likely 

to come before you. I would like to ask you a question about a case 

that the Supreme Court will certainly never see again, the 2000 

Presidential election contest between President Bush and Vice 

President Gore. Many commentators see the Bush v. Gore decision 

as an example of judicial improperly injecting itself into a political 

dispute. What is your view of that, of the Bush v. Gore decision and 

was the Supreme Court right to have gotten involved in the first 

place, General Kagan? 

Ms. KAGAN. Senator Kohl, I think I might disagree that it’s the 

kind of decision that will never come before the Court again. Of 

course, you’re right that ‘‘it’’ will never come before the Court 

again. But the question of when the Court should get involved in 

election contests in disputed elections is, I think, one of some magnitude that might well come before the Court again. And if it did, 

you know, I would try to consider it in an appropriate way. And, 

you know, reading the briefs and listening to the arguments and 

talking with my colleagues. I think it is an important—an important question and a difficult question about how an election contest 

that at least arguably the political branches can’t find a way to resolve themselves; what should happen and whether and when the 

Court should get involved. It’s hard to think of a more important 

question in a Democratic system and it may be a tougher one. 

Senator KOHL. Do you believe when these hearings are over this 

week, the American people should have a pretty good idea of what 

your judicial philosophy is? 

Ms. KAGAN. I hope that they will, Senator Kohl. And as we go 

around the room and people talk to me about the way in which I 

would decide cases, the approach I would use, just the way you 

asked me about, you know, would I just look to the original intent, 

or would I look to a broad variety of sources and when and where, 

I hope that the American people will get a sense of how I would 

approach cases. 

Senator KOHL. Thank you. 

Senator Leahy. Senator, as I mentioned to some of the Senators 

up here, I’m going to yield to Senator Hatch for his round and Senator Feinstein for her round. We will then take a 10-minute break. 

We are trying to—if this works right, to break for lunch around 

one. We have a vote and I’m double-checking to make sure whether 

it is set for 2:15. If that’s the case, we would vote at—several of 

us would vote at the desk and come back immediately so that we 

85 

could start about 2:20 after lunch. But after these two Senators ask 

their questions, we’ll break for 10 minutes. 

Senator HATCH. Well, thank you, Mr. Chairman. You are doing 

well. Relax as much as you can. 

I am going to ask her a series of questions, some of which just 

ask for yes or no, to the extent that you can do that I would appreciate it. But, you can do whatever you want to do; how’s that. 

General Kagan, I want to begin by discussing freedom of speech 

in general and campaign finance reform in particular. As you 

know, the first word in the First Amendment is ‘‘Congress.’’ Now, 

I know that the Supreme Court has said that the First Amendment 

also limits state government. But do you agree that America’s 

founders were first concerned about setting explicit limits on the 

Federal Government in areas such as freedom of speech? 

Ms. KAGAN. There’s no question that the First Amendment limits 

what Congress and what other state actors, executive officials can 

do. 

Senator HATCH. OK. The Supreme Court has said that the First 

Amendment protects some types of speech more strongly than others and even that it does not protect some types of speech at all. 

Do you agree that the Supreme Court has held repeatedly that political speech, especially during a campaign for a political office is 

at the core of the First Amendment and has the First Amendment’s 

strongest protection? 

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

Senator HATCH. Yeah, I think one of the great examples, University San Francisco County Democratic Central Committee back in 

1989 really came out very strongly on that. 

When you worked in the Clinton Whitehouse, you wrote a memo 

in October 1996 in which you wrote this: ‘‘It is unfortunately true 

that almost any meaningful campaign finance reform proposal 

raises constitutional issues. This is a result of the Supreme Court’s 

view which I believe to be mistaken in many cases that money is 

speech and that attempts to limit the influence of money in our political system therefore raise First Amendment problems.’’ 

Now, as I understand it, President Harry Truman argued as far 

back as 1947 that a ban on independent expenditures would be a 

‘‘dangerous intrusion on free speech.’’ 

The notion that spending and speech are necessarily related is 

hardly new and hardly confined to the Supreme Court or even one 

political party. Do you recognize—excuse me, do you reject the idea 

that spending is speech? 

Ms. KAGAN. Senator Hatch, the quote that you read I believe was 

not written by me in my voice. It was a set of talking points that 

I prepared for—I’m not sure if it was for the President—for President Clinton or if it was for the press office, but it was meant to 

reflect the administration’s position at the time. The administration was trying very hard to Enact the McCain/Feingold Bill and 

those talking points were in service of that objective and so they 

weren’t, you know, my personal constitutional or legal views or 

anything like that, but was just a set of talking points that I prepared for, I think it was the press office. It might have been for 

the president himself. 

86 

Senator HATCH. Well, you were listed as the creator. 

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

[Laughter.] 

Senator HATCH. OK. OK. I accept that. 

I want to turn to the Supreme Court’s decision in Citizens United 

v. FEC for a little bit. I’ve seen media reports that in a meeting 

with at least one of your colleagues on this Committee you said 

that you believed the Citizens United case was wrongly decided; is 

that true? 

Ms. KAGAN. Senator Hatch, I argued the case. Of course, I 

walked up to the podium and I argued strenuously that the bill 

was constitutional. 

Senator HATCH. But I’m asking about your belief. 

Ms. KAGAN. And over the course—at least for me, when I prepare 

a case for argument, the first person I convince is myself. Sometimes I’m the last person I convince. But the first person I convince 

is myself and so, you know, I did believe, that we had a strong case 

to make. I tried to make it to the best of my ability. 

Senator HATCH. OK. The statute being challenged in this case 

prohibited different types of for-profit corporations, non-profit corporations and labor unions from using their regular budget to fund 

speeches by candidates who are election issues within 30 to 60 days 

of a primary or a general election. They could form separate organizations called ‘‘PAC’’s, political action committees, to do so, but 

they did not have the freedom to use their own money directly to 

speak about candidates or issues as they saw fit. 

Now, I know there’s a lot of loose rhetoric about the decision in 

this case allowing unlimited ‘‘spending on elections.’’ I assume that 

is to conjure up images of campaign contributions or collusion. But 

just to clarify the facts, the statute in the Citizens United case involved what are called ‘‘independent expenditures’’ or money spent 

by corporations, non-profit groups, or unions completely on their 

own to express their political opinions. Now, this case had nothing 

to do with contributions to campaigns or spending that is coordinated or connected in any way with candidates or campaigns; isn’t 

that true? 

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

Senator HATCH. Right. When President Obama announced your 

nomination he said that you believed that ‘‘in a democracy powerful 

interests must not be allowed to drown out the voices of ordinary 

citizens.’’ Virtually all of the rhetoric surrounding this case is focused on large, for-profit corporations. But the law in question and, 

of course, this case affected much more than that. But you know 

in that case a non-profit organization sued to defend its freedom of 

speech rights. Do you agree that many people join or contribute to 

non-profit advocacy organizations because they support the positions and message of those groups and because those groups magnify the voice of their members and their contributors? 

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

Senator HATCH. These aren’t just civic organizations. I’m talking 

about unions and businesses and non-profits and profits and partnerships and S-corporations and a lot of others. 

87 

Ms. KAGAN. Yes. You’re right that the statute that the government defended in the Citizens United case was a statute that applied to many different kinds of corporations. 

Senator HATCH. That’s right. 

Ms. KAGAN. And one of the things that the government suggested 

to the Court in the course of its arguments was that one possibly 

appropriate way to think about the case might be to treat those different situations differently. But the statute itself applied to many 

different kinds of organizations. 

Senator HATCH. OK. Now, President Obama called the Citizens 

United decision, ‘‘a victory for powerful interests that marshal their 

power every day in Washington to drown out the voices of everyday 

Americans.’’ 

Now, as I said the statute applied to for-profit corporations, nonprofit corporations, and labor unions. Do you believe that—let’s just 

take unions, do you believe that they are ‘‘powerful interests that 

drown out the voices of everyday Americans’’ ? 

Ms. KAGAN. Senator Hatch, what the government tried to argue 

in that case was that Congress had compiled a very extensive 

record about the effects of these independent expenditures by corporations generally and by unions generally on the political process. And that what the Congress had found was that these corporations and unions had a kind of access to Congressmen, had a kind 

of influence over Congressmen that changed outcomes, that was a 

corrupting influence on Congress. And that was what the many, 

many, many thousand-page record that was created before Congress enacted the McCain-Feingold Bill revealed and that’s what 

we tried to argue to the Court. 

Senator HATCH. I understand the argument. But the statute banning political speech that was challenged in Citizens United also 

applied to small S-chapter corporations that might have only one 

shareholder. There are more than four and a half million S-corporations or S-chapter corporations in America. We have 56,000 in 

my home state of Utah alone. These are small companies that want 

the legal protections that incorporating provides. These are family 

farmers, ranchers, mom and pop stores, and other small businesses. Before the Citizens United decision these small family businesses could be barred from using their regular budget for say a 

radio program or even a pamphlet opposing their Congressman for 

his vote on a bill if it was that close to an election. 

Now, do you believe the Constitution gives the Federal Government this much power? 

Ms. KAGAN. Senator Hatch, Congress determined that corporations and trade unions generally had this kind of corrupting impact 

on—— 

Senator HATCH. I’m talking about all of these four and a half 

million S—small corporations as well. 

Ms. KAGAN. Senator Hatch, of course, in the Solicitor General’s 

Office we defend statutes and Congress determined—— 

Senator HATCH. No, no, I understand that. 

[Simultaneous conversation.] 

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

Senator Leahy. Then ask the question. 

88 

Senator HATCH. I will. I’m going to be fair. I intend to be. And 

you know that after 34 years. 

[Laughter.] 

Senator HATCH. Go ahead, keep going, did you have something 

else you wanted to add? 

Ms. KAGAN. No, go ahead. 

Senator HATCH. OK. We have to have a little back and forth 

every once in a while or this place would be boring as hell, I’ll tell 

you. 

[Laughter.] 

Ms. KAGAN. And it gets the spotlight off me, you know, so I’m 

all for it. Go right ahead. 

Senator HATCH. I can see that. And by the way, I’ve been informed that hell is not boring. So? 

[Laughter.] 

Senator HATCH.—I can imagine what I mean by that. 

Ms. KAGAN. Just hot. 

Senator HATCH. OK. I have the current volume, the current volume of the Code of Federal Regulations. Now, this is governing 

Federal campaign finance. It’s 568 pages long, this code. This does 

not include another 1,278 pages of explanations and justifications 

for these regulations. Nor does it include another 1,771 Federal 

Election Commission advisory opinions, even more enforcement rulings and still more Federal statutes. 

Now, let me ask you this, do you believe that the Constitution 

allows the Federal Government to require groups such as non-profit corporations and small S-chapter corporations to comb through 

all of this? This is just part of it. I have thousands of other pages 

of regulations—likely hire an election law attorney and jump 

through all the hoops of forming a political action Committee with 

all of its costs and limitations simply to express an opinion in a 

pamphlet or in a radio or a movie or just to criticize their elected 

officials? Do you really believe the constitution allows that type of 

requirement? 

Ms. KAGAN. Well, Senator Hatch, I want to say, Senator Hatch 

you should be talking to Senator Feingold, but I won’t do that. 

Senator Hatch, Congress made a determination here. And the determination was that corporations and unions generally had this 

kind of corrupting influence on Congress when they engaged in? 

[Simultaneous conversation.] 

Senator HATCH. But you acknowledge that it covered all these 

other smaller groups and all these other groups that have—should 

have a right to speak as well? 

Ms. KAGAN. The Solicitor General’s Office, of course, defends 

statutes as they’re written. And Congress made the determination 

broadly that corporations and trade unions had this corrupting influence on Congress. And in the Solicitor General’s office we in the 

Solicitor General’s office, as other Solicitor Generals offices have 

done, vigorously defended that statute as it was written. 

Senator HATCH. I understand. 

Ms. KAGAN. On the basis of the record that was made in Congress, this, I think it was in a 100,000-page record about the corrupting influence of independent expenditures made by corporations and unions. Now, the Court rejected that position. The Court 

89 

rejected that position in part because of what you started with. You 

said, ‘‘Political speech is of paramount First Amendment value’’ it’s 

no doubt the case. And the Court applied a compelling interest 

standard and the Court rejected the position. But the position that 

we took was to defend the statute to apply broadly. 

Senator HATCH. No, no, I have no problem with that because 

that was your job. But I’m getting into some of the comments by 

some of our colleagues, by the President and others about how 

wrong this case was. But I don’t think it was wrong at all. 

Your 1996 Law Review article about private speech and public 

purpose emphasized the need to examine the motive behind speech 

restrictions. Since you’ve already written about this, I would like 

to know whether you personally agree with the Supreme Court in 

the Citizens United decision that ‘‘speech restrictions based on the 

identity of one speaker are all too often simply a means to control 

content;’’ do you agree with that? 

Ms. KAGAN. Senator Hatch, speaker-based restrictions do usually 

get strict scrutiny from the Supreme Court and for the reason that 

you suggest which is a concern about why it is that Congress is 

saying one speaker can speak and not another. 

I had a very interesting colloquy with Justice Scalia at the Court 

on this question. 

Senator HATCH. I understand. 

Ms. KAGAN. Justice Scalia said to me, and it’s a powerful argument, he said, ‘‘Well, you know, if you let Congress think about 

these things Congress is going to protect incumbents.’’ That that 

might be a reason for Congress to say that certain groups can 

make independent expenditures and others not. 

Senator HATCH. Well, one part of Congress would protect incumbents. The others would be trying to throw them out. I mean, that’s 

what this system is. 

[Laughter.] 

Ms. KAGAN. But I said to Justice Scalia and I think it’s true with 

respect to the McCain-Feingold Bill that all the empirical evidence 

actually suggests—I think my line was, ‘‘this is the most self-denying thing that Congress has ever done.’’ Because all the empirical 

evidence suggests that these corporate and union expenditures actually do protect incumbents and notwithstanding that in the 

McCain-Feingold Bill Congress determined that it was necessary in 

order to prevent corruption to prevent those expenditures. But, you 

know, the Court said no. 

Senator HATCH. Well, tell that to Blanch Lincoln how incumbents 

are protected. 

In this case the speech in which Citizens United—I think about 

Blanch Lincoln, one of the nicer people around here, who had $10 

million spent against her by the unions just because they disagreed 

with her on one or two votes. I mean, you know, let me keep going 

now. 

In this—and I’m enjoying our colloquy together. 

Ms. KAGAN. Me too. 

Senator HATCH. In this—I hope so. In this case, the speech in 

which Citizens United wanted to engage was in the form of a movie 

about a Presidential candidate, Hillary Clinton, at the time, the 

Deputy Solicitor General first argued the case. The Deputy SolicVerDate Nov 24 2008 12:24 Aug 23, 2011 Jkt 067622 PO 00000 Frm 00099 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\67622.TXT SJUD1 PsN: CMORC
90 

itor General from your office. He told several Justices that if a corporation of any size, a union, or even a non-profit group did not 

have a separate PAC, the Constitution allows to Congress to ban 

publishing, advertising, or selling, not only a traditional print book 

that criticized a political candidate, but an electronic book available 

on devices such as the Kindle. Even a 500-page book that had only 

a single mention of a candidate, not only print or electronic books, 

but also a newsletter, even a sign held up in Lafayette Park. 

Now, isn’t that what under that argument at that time your office admitted that at first oral argument that at the end of the day 

the Constitution allows Congress to ban them from engaging in any 

political speech in any of those forums? 

Ms. KAGAN. Senator Hatch—— 

Senator HATCH. I’m not blaming you for the prior argument nor 

am I really blaming the person who was trying to defend this statute. I’m just saying that’s what happened. 

Ms. KAGAN. Senator Hatch, the statute which applies only to corporations and unions when they make independent expenditures, 

not to their PACs. The corporations and unions when they make 

independent expenditures within a certain period of an election the 

statute does not distinguish between movies and anything else. 

Senator HATCH. Well, as you can see, I’m finding a certain 

amount of fault with that. And that’s why the Citizens United case, 

I think, is a correct decision. The Court has been criticized, including just yesterday, in this hearing for not deciding the Citizens 

United case on narrower statutory grounds. But according to some 

media accounts such as the National Journal, it was your office’s 

admission that the statute had much broader Constitutional implications that prompted the Court to ask for a second argument in 

this case. 

Now, that’s where you come in. You reargued the case last September, and I believe that it was Justice Ginsberg who asked 

whether you still believed that the Federal Government may ban 

publication of certain books at certain times? You said that the 

statute in question covered books, but that there might be some 

legal arguments against actually applying it to books. I certainly 

agree with you on that. 

But didn’t you argue that the Constitution allows the Federal 

Government to ban corporations, union, and non-profit groups from 

using their regular budget funds to publish pamphlets that say certain things about candidates close to an election. You did say that? 

Ms. KAGAN. Senator Hatch, we were of course—I was defending 

the statute? 

Senator HATCH. No, I understand. 

Ms. KAGAN.—as it was written and the statute as it was written 

applies to pamphlets as well as to the movie in the case and we 

made a vigorous argument that the application of that statute to 

any kinds of classic electioneering materials, not books, because 

they aren’t typically used to election year. But that the application 

of the statute to any kinds of classic electioneering materials was 

in fact constitutional and the Court should defer to Congress’s view 

of the need—— 

91 

Senator HATCH. I accept that. I accept that you made that argument and that you were arguing for statutory enactment by the 

Congress. 

But as I mentioned, you said that the Federal Government could 

ban certain pamphlets at certain times because pamphlets are, as 

you put it, ‘‘pretty classic electioneering.’’ 

You said that pamphleteering is classic political activity with 

deep historical roots in America. Certainly some of the most influential pieces of political speech in our Nation’s history have been 

pamphlets such as Thomas Payne’s Common Sense. 

Since in the Citizens United case you were defending amplification of that statute to a film, would you also consider films as 

classic electioneering? 

Ms. KAGAN. Senator Hatch, I’m trying to remember what our 

brief said, but, yes, I think the way we argued the case? 

Senator HATCH. You took that position. 

Ms. KAGAN.—it applies to films as well. 

Senator HATCH. OK. 

Ms. KAGAN. Of course. 

Senator HATCH. All right. A pamphlet is often defined at least in 

the dictionary as an unbound, printed work, usually with a paper 

cover or a short essay or treatise. In another First Amendment context involving the establishment clause, Justice Kennedy criticized 

the idea that application of the First Amendment depended on such 

things as the presence of a plastic reindeer or the relative placement of poinsettia. I believe he called that a ‘‘juris prudence of minutia’’. I thought it was an interesting comment myself. 

Do you believe that the protection of the First Amendment 

should depend on such things as the stiffness of a cover, the presence of a binder, or the number of words on a page? Now, you can 

give an opinion on that since that case is decided. 

Ms. KAGAN. Senator Hatch, what we did in the Citizens United 

case was to defend the statute as it was written which applied to 

all electioneering materials with the single exception of books 

which we told the Court were not the kind of classic electioneering 

materials that posed the concerns that Congress has found to be 

posed by all electioneering materials of a kind of classic kind. 

Books are different. Books, you know, nobody uses books in order 

to campaign. 

Senator HATCH. That’s not true. That’s not true. And you did say 

that books are probably covered, but you didn’t think they 

would—— 

Ms. KAGAN. I thought that I said the argument was that they 

were covered by the language of the statute, but that a good constitutional challenge, as applied constitutional challenge could be 

made to it because the purposes that Congress had in enacting the 

statute, which were purposes of preventing corruption, would not 

easily have applied to books. But would have applied to all the materials that people typically use—— 

Senator HATCH. I understand. 

Ms. KAGAN.—in campaigns. 

Senator HATCH. I understand. In 1998 when you served in the 

Clinton Administration the Federal Election Commission sued 

Steve Forbes and his company that publishes Forbes Magazine. I 

92 

have a copy of the Forbes Magazine right here and I think most 

people are familiar with it. 

Steve Forbes had taken a leave from his position with the company to run for president but continued writing columns on various 

issues. The FEC used the same statute that you defended in the 

Citizens United case to say that these columns were illegal corporate contributions to Forbes’ Presidential campaign. And I know 

that the FEC later decided to terminate the lawsuit. And I know 

that this Forbes lawsuit involved alleged campaign contributions 

rather than independent expenditures. But the same statute was 

involved and I use this as an example to show what can happen 

on the slippery slope of the Federal Government regulating who 

may say what and when about the government. 

Now, the Forbes case involved a magazine. The case you argued 

involved a movie. Your office admitted that the statute could apply 

to books and newsletters. You admitted that it could apply to pamphlets. 

Now, all of this involves the politic speech that is the very heart 

of the First Amendment, whether engaged in by for-profit corporations, nonprofit corporations, tiny S chapter corporations, or labor 

unions. 

Do you really believe—now, this is your personal belief. Do you 

really believe—and I understand you represented the government. 

But do you really believe that the Constitution allows the Federal 

Government this much power to pick and choose who may say 

what, how and when about the government? 

Ms. KAGAN. Senator, putting the Citizens United case to the side, 

I think that there are extremely important constitutional principles 

that prevents the government from picking and choosing among 

speakers, except in highly unusual circumstances, with hugely 

compelling interests. 

Senator HATCH. Well, what is highly unusual about a book or a 

pamphlet or a movie? 

Ms. KAGAN. Senator, as I said, putting Citizens United to the 

side, I argued that case. I argued it on behalf of the government, 

because Congress had passed a statute. We are—— 

Senator HATCH. But you do believe it was wrongly decided, too, 

do you not? 

Ms. KAGAN. I’m sorry? 

Senator HATCH. You did take the position it was wrongly decided. 

Ms. KAGAN. I absolutely said, Senator Hatch, that when I 

stepped up to the podium as an advocate, I thought that the U.S. 

Government should prevail in that case and that the statute should 

be upheld. 

I wanted to make a clear distinction between my views as an advocate and any views that I might have as a judge. I do think Citizens United is settled law going forward. There is no question that 

it’s precedent, that it’s entitled to all the weight that precedent 

usually gets. 

I also want to make clear that in any of my cases as an advocate, 

and this is Citizens United or any of the other cases in which I 

have argued, I’m approaching the things—the cases as an advocate 

93 

from a perspective of, first, the U.S. Government interests and, 

also, it’s a different kind of preparation process. 

You don’t look at both sides in the way you do as a judge. 

Senator HATCH. I got that. I got that. I do not have any problem 

with that. All I am saying is that we have had arguments right 

here in this Committee that this is a terrible case that upset 70 

years of precedent. And I have heard all these arguments and they 

are just inaccurate, and that is what we are establishing here. 

When President Obama criticized the Citizens United decision in 

the State of the Union Address, with the Supreme Court justices 

sitting there, he said that it would allow foreign corporations to 

fund American elections. And others have said the same thing. 

Do you agree that this case involved an American nonprofit organization, not a foreign corporation; that this case involved independent political speech, not campaign contributions; and, that the 

separate laws regarding political spending by foreign corporations 

and campaign contributions by anyone are still enforced today? 

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

Senator HATCH. All right. Well, there was no foreign corporation 

involved. That is one of the points I am trying to establish. And 

it was a misstatement of the law. I am not here to beat up on 

President Obama. I just want to make this point. And yet, colleagues have just accepted that like that is true. It is not true. 

In First National Bank of Boston v. Bellotti, the Supreme Court 

held, in 1978, more than 30 years ago, that, quote, ‘‘The identity 

of the speaker is not decisive in determining whether speech is protected. Corporations and other associations, like individuals, contribute to the discussion, debate, and the dissemination of information and ideas that the First Amendment seeks to foster,’’ unquote. 

Bellotti was decided just 2 years after the landmark case of 

Buckley v. Valeo. In Bellotti, the Court recognized that corporations 

have a First Amendment right to engage in political speech. 

In that decision, Chief Justice Berger wrote an interesting concurrence in order to, as he put it, quote, ‘‘raise some questions likely to arise in the future,’’ unquote. 

These questions included that large corporations would have an 

unfair advantage in the political process. He had some amazing insight there, I think, because people are making just such arguments today. 

That case also involved the First Amendment protection of the 

press that Berger noted how the government historically has tried 

to limit what may be said about it. He concluded, quote, ‘‘In short, 

the First Amendment does not belong to any definable category or 

persons or entities. It belongs to all who exercise its freedoms,’’ unquote. 

Do you agree with that? 

Ms. KAGAN. I’m sorry, Senator Hatch. 

Senator HATCH. Do you agree with Justice Berger’s comment 

there? 

Ms. KAGAN. Would you read that again? I’m worry. 

94 

Senator HATCH. Sure. I would be glad to. He said that, ‘‘In short, 

the First Amendment does not belong to any definable category or 

persons or entities. It belongs to all who exercise its freedoms.’’ 

Ms. KAGAN. Senator Hatch, the First Amendment protects all of 

us and grants all of us rights. 

Senator HATCH. Right. And they are important rights. In Citizens United—see, I get a little tired of people on the left saying it 

was a terrible case, when, frankly—let me make this point. 

In Citizens United, the Court listed at least 25 precedents dating 

back almost 75 years. Here is a list of them right here. Quoting 

generally, that the First Amendment protects corporate speech and, 

specifically, that it protects corporate political speech. 

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

Chairman LEAHY. Without objection. 

[The information referred to appears as a submission for the 

record.] 

Senator HATCH. On the other side of the precedential scale was 

a single 1990 decision in Austin v. Michigan Chamber of Commerce. As the Court said in Citizens United, no other case had held 

that Congress may prohibit independent expenditures for political 

speech based on the identity of the speaker. 

In other words, Austin was the aberration, the exception, the 

break in the Court’s consistent pattern of precedence. And many 

folks have—Mr. Chairman, I only need about 30 seconds more just 

to finish here. 

Chairman LEAHY. Thirty seconds more. 

Senator HATCH. Many folks have attacked the decision, saying it 

is a prime example of, quote, ‘‘conservative judicial activism,’’ unquote, because it ignored precedent by overruling Austin. 

But by overruling that one precedent, was not the Court really 

reaffirming a much larger group of previous decisions, including 

Bellotti, that, as we discussed, affirmed that corporations have a 

First Amendment right to engage in political speech, and that includes all these small corporations? That sounds like the Court is 

committed to precedent, not rejecting it. 

I thank my Chairman for allowing me to make that last comment. But I get a little tired of people misstating what Citizens 

United is all about. 

Ms. KAGAN. Senator Hatch, I think that the—— 

Senator HATCH. And I have appreciated your comments here 

today. 

Ms. KAGAN. Senator Hatch, I think that there was a significant 

issue in the case about whether Austin was an anomaly, as you 

quoted, or whether it was consistent with prior precedent and consistent with subsequent precedent, as well. And, certainly, the government argued strenuously that Austin was not an anomaly, although the Court disagreed and held that it was. 

Chairman LEAHY. Senator Feinstein is recognized. And then 

after that round of questioning, we will take a short break. 

Senator Feinstein. 

Senator FEINSTEIN. Thank you very much, Mr. Chairman. 

I just want to clear up one thing before I go on. It is my understanding that you specifically told the Supreme Court that books 

95 

have never been banned under Federal campaign finance laws and 

likely could not be. 

Here is a quote. ‘‘Nobody in Congress, nobody in the administrative apparatus has ever suggested that books pose any kind of corruption problem.’’ Is that not correct? 

Ms. KAGAN. Yes, that’s exactly right, Senator Feinstein. 

Senator FEINSTEIN. So it is clear to me that the campaign finance 

laws invalidated by the Supreme Court in Citizens United were intended to prevent corporations from spending limitless dollars to 

elected candidates to do their bidding, not to prevent authors from 

publishing their books. 

Ms. KAGAN. We said that the act ought not to be applied. It had 

never been applied to books. We thought it never would be applied 

to books. And to the extent that anybody ever tried to apply it to 

books, what I argued in the Court is that there would be a good 

constitutional challenge to that, because the corrupting potential of 

books is different from the corrupting potential of the more typical 

kinds of independent expenditures. 

Senator FEINSTEIN. Thank you very much. Now, I want to just 

have a little heart-to-heart talk with you, if I might. I come at the 

subject—— 

Ms. KAGAN. Just you and me. 

Senator FEINSTEIN. Just you and me and nobody else. 

[Laughter.] 

Chairman LEAHY. Don’t anybody in the room listen. 

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

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

I have watched as innocent after innocent has been killed, the 

latest of which, in my State, is 2 weeks ago, a 6-year-old, in a 

Spiderman costume, eating an ice cream bar in the kitchen, was 

killed by a bullet coming through the room. 

I can show you in Los Angeles where a woman ironing, was 

killed the same way. A youngster playing the piano, killed the 

same way, bullet right through the walls. He is a paraplegic today. 

Now, you answered Senator Leahy’s question that you believe 

that both Heller and McDonald are binding precedent and entitled 

to all respect to binding precedent in any case. ‘‘That is settled 

law,’’ you said. 

These were 5–4 closely decided decisions in both cases. California 

is not Vermont. California is a big state, with roiling cities. It is 

the gang capital of America. The State has tried to legislate in the 

arena. 

As I understand McDonald, it is going to subject virtually every 

law that a State passes in this regard to a legal test. And that 

causes me concern, because States are different. Rural States have 

different problems than large metropolitan States do. 

We probably have as many as 30 million people living in cities, 

where the issue of gangs is a huge question. So here is my question 

to you. 

Why is a 5–4 decision in two quick cases, why does it throw out 

literally decades of precedent in the Heller case, in your mind? Why 

do these two cases become settled law? 

96 

Ms. KAGAN. Senator Feinstein, because the Court decided them 

as they did and once the Court has decided a case, it is binding 

precedent. 

Now, there are various reasons for why you might overturn a 

precedent; if the precedent proves unworkable over time or if the 

doctrinal foundations of the precedent are eroded or if the factual 

circumstances that were critical to why the precedent—to the original decision, if those change. 

But unless one can sort of point to one of those reasons for reversing a precedent, the operating presumption of our legal system 

is that a judge respects precedent, and I think that that’s an enormously important principle of the legal system. 

It defers to prior justices or prior judges who have decided something and that it’s not enough, even if you think something is 

wrong, to say, ‘‘Oh, well, that decision was wrong, they got it 

wrong.’’ The whole idea of precedent is that’s not enough to say a 

precedent is wrong. 

You assume that it’s right and that it’s valid going forward. 

Senator FEINSTEIN. Let us go to the 1973 case of Roe v. Wade, 

the 1992 case of Planned Parenthood v. Casey, the 2000 case of 

Stenberg v. Carhart. In those cases, the Supreme Court clearly 

stated, and I quote, ‘‘Subject to viability, the State, in promoting 

its interest in the potentiality of human life, may, if it chooses, regulate and even prescribe abortion, except where it is necessary in 

appropriate medical judgment for the preservation of the life or 

health of the mother.’’ 

That is 30 years of case law. But in the 2007 case of Carhart v. 

Gonzalez, the Court issued a 5–4 decision upholding a statute that 

did not contain an exception to protect the health of the mother for 

the first time since Roe was passed in 1973. 

So let me ask you, clearly. In a memo that you wrote in 1997, 

you advised President Clinton to support two amendments to a late 

stage abortion bill to ensure that the health of the mother would 

be protected. 

Here is the question. Do you believe the Constitution requires 

that the health of the mother be protected in any statute restricting access to abortion? 

Ms. KAGAN. Senator Feinstein, I do think that the continuing 

holding of Roe and Doe v. Bolton is that women’s lives and women’s 

health have to be protected in abortion regulation. 

Now, the Gonzalez case said that with respect to a particular 

procedure, that the statute Congress passed, which passed a statute without a health exception and with only a life exception, was 

appropriate because of the large degree of medical uncertainty involved—— 

Senator FEINSTEIN. Because of the procedure. 

Ms. KAGAN. Because of the procedure. But with respect to abortion generally, putting that procedure aside, I think that the continuing holdings of the Court are that the woman’s life and that 

the woman’s health must be protected in any abortion regulation. 

Senator FEINSTEIN. Thank you very much. Let me move on to executive power, if I might. Some on the left have criticized your 

views on executive power, finding fault with your testimony during 

your 2009 confirmation hearing to be solicitor general, in which you 

97 

agreed with Senator Lindsey Graham that the law of armed conflict provides sufficient legal authority for the President to detain 

individuals suspected of terrorist ties without trial. 

You also agreed that the courts have a role in determining 

whether a particular detention is lawful, and that substantive due 

process is required before an individual may be detained. 

You agreed during the aforementioned hearing that an individual 

suspected of financing Al Qaeda in the Philippine was, quote, ‘‘part 

of the battlefield,’’ end quote, for the purpose of capture and detention. 

Could you elaborate on the scope of the President’s authority to 

detain individuals under the law of armed conflict? 

Ms. KAGAN. Senator Feinstein, the conversation that Senator 

Graham and I had, and I believe, in that same hearing, you asked 

a similar question, starts with the Hamdi case, where the Supreme 

Court said that the AUMF, the authorization for the use of military 

force, which is the statute that applies to our conflict with Iraq and 

Afghanistan, that the AUMF includes detention authority. 

And Hamdi said that the law of war typically grants such authority in a wartime situation and interpreted the AUMF consistent with the law of war understanding. 

Now, the question of exactly what the scope of that detention authority is has been and continues to be the subject of a number of 

cases. And in the role of Solicitor General, I’ve participated in some 

of those issues. 

The Obama Administration has a definition of enemy belligerents that it believes are subject to detention under the AUMF and 

as approved by Hamdi, and the Solicitor General’s office has used 

that definition of an enemy belligerent, which is a person who is 

part of or substantially supports the Al Qaeda and Taliban forces. 

That’s the definition that the Solicitor General’s office has advocated, as has the rest of the Justice Department. 

Now, there are a number of uncertain questions in this area that 

almost surely will come before the Supreme Court, questions about 

whether the scope of the definition that the Obama Administration 

has been using is appropriate, whether it is too broad, whether it 

is too narrow; where the battlefield is; what counts as—do you 

have to be a member of a fighting force or is it sufficient that you 

support the fighting force, and, if so, what kind of support might 

give rise to detention. 

So all of those questions are, I think, questions that might come 

before the Court in the future. The Obama Administration has 

taken views as to some of them, not all of them, in cases that have 

been litigated over the past couple of years. 

But there are certainly quite a number of questions that will 

come before the Court about the exact scope of detention authority. 

Senator FEINSTEIN. So if I understand you correctly, you would 

say that the executive’s power in this area is really limited by the 

specifics of the actual situation, if I understand what you are saying. 

Ms. KAGAN. Well, Senator Feinstein—— 

Senator FEINSTEIN. And that the President does not have an 

overriding authority here. 

98 

Ms. KAGAN. Senator Feinstein, the way that the Solicitor General’s office has argued these cases, and the entire Department of 

Justice has, is on the basis of statutory authority, is on the basis 

of the AUMF, the authority for the use of military force. 

And we have actually never argued that Article 2 alone would 

provide such authority. And the question you raise really—the 

usual framework that people use when they think about this question is something called Youngstown, of course, Justice Jackson’s 

opinion in Youngstown, and he sets forth three different zones. 

He says, well, in one zone, the President can act in accordance 

with Congressional authority, and that is the easiest for a court to 

validate; to say, ‘‘Look, Congress and the President are acting together, the President is acting in specific accordance with what 

Congress has told the President to do. The courts should give real 

deference to that.’’ 

Senator FEINSTEIN. Let me stop you here, because it is the threepronged test, and we have discussed this in almost every Supreme 

Court confirmation hearing now. 

The concern is where there is not legislation or when, the third 

prong, when legislation may say the opposite. Can the President 

exceed that legislation and how strong is his authority? You say it 

is not the commander in chief authority, it is the AUMF authority 

that prevails. 

Do I understand that correctly? 

Ms. KAGAN. Yes. Essentially, what the Solicitor General’s office 

and the Department of Justice have been arguing in these last 2 

years is that we’re in zone one, which is where the executive is acting with Congress’ authorization, rather than in zone two, where 

the executive is acting and Congress hasn’t said anything, or zone 

three, where the executive is acting as against Congress’ statement 

to the contrary. 

So those would present very different issues. Whether the President has authority to detain where Congress has not said anything 

or, still yet, whether the President has the authority to detain 

where Congress has specifically deprived him of that authority, 

that would be a very different question, indeed. 

Senator FEINSTEIN. Let us talk about that for a moment, because 

that is something I had something to do with, and, that is, expanding the exclusivity portion of the Foreign Intelligence Surveillance 

Act to say that the executive authority may not exceed in statute 

the confines of this act. 

Would you find that as binding? 

Ms. KAGAN. Well, Senator Feinstein, I would have to take a look 

at the statute. But I would say that the circumstances in which the 

President can act as against specific Congressional legislation, 

where the President can act despite Congress, are few and far between, and I think that that’s what Justice Jackson said in Youngstown and I think that that’s what mostly the Court has agreed 

with, few and far between. 

Now, are they nonexistent? Well, suppose Congress said something like ‘‘We’re going to take away the President’s pardon power,’’ 

a power that’s specifically committed to the President by Article 2, 

I think that that would be a hard case. 

99 

I think a court might say, ‘‘Well, notwithstanding that Congress 

tried to do that, Congress can’t do that. The President has that 

power and it doesn’t matter what Congress says about the matter.’’ 

But those are very few and far between. For the most part, the 

presumption is that the President, if told by Congress that he can’t 

do something, can’t do something. 

Senator FEINSTEIN. Let me ask this. Does the President, in your 

view, have the authority to detain American citizens without criminal trial if they are suspected of conspiring to aid terrorists of participating in acts of terrorism? 

Now, does your answer then depend on whether the individual 

was arrested in the United States or abroad? 

Ms. KAGAN. Well, Senator Feinstein, this will, I think, very much 

be a case that may come before the Court, is the question of how 

detention authority, whether detention authority exists with respect to people who are apprehended in the United States. 

The Court has not addressed that question so far. The Court has 

addressed, in Hamdi, only a person who was actually captured on 

the battlefield. The Court has left open the question of whether detention authority might exist for a person captured outside of the 

battlefield, but outside of the United States, and, also, has left open 

the question of whether detention authority, under the AUMF now 

I’m talking about, would exist as to a person captured in the 

United States. 

There is a fourth circuit decision on that subject. It’s the AlMarri case, where the court was very closely divided, where a slim 

majority of the court stated that the court—that there was detention authority under the AUMF to detain a person in military custody captured in the United States. 

That case was on its way to the Supreme Court, but never got 

there. It was mooted out because the person was transferred into 

civilian custody—excuse me—into the regular criminal justice system. So that case did not come before the Court in Al-Marri. But 

it’s very much a live possibility. 

Senator FEINSTEIN. Right. And we have just had a case by a district court judge in California, as of March 31st of this year, the 

al-Haramain case, and Senator Specter and I have discussed this. 

It is my understanding that what the judge did there was find 

the terrorist surveillance program illegal and essentially say that 

the plaintiff was entitled to damages from the government. 

So I guess the question might be whether that case goes up to 

the Supreme Court or not. But clearly, the judge here dealt with 

something that was outside of the scope of law, which was the terrorist surveillance program, and made a finding that it was, in fact, 

illegal. 

Ms. KAGAN. I believe that that is what the judge said in that 

case, and that case is still pending, of course, and might come before the Court. 

I think that the appropriate analysis to use with respect to that 

case or many others in this area would be the Youngstown analysis, which makes very important what Congress has done. Where 

Congress authorizes the President, it’s one thing; where Congress 

has said nothing, still another; where Congress has specifically 

barred the activity in question, you’re talking about a much, much 

100 

higher bar for the President to jump over in order for the action 

to be found constitutional. 

Senator FEINSTEIN. Thank you very much. If I might, let me go 

on to an environmental issue in the commerce clause. And as we 

all know, the commerce clause is used to legislate many different 

matters. 

I think the Lopez decision struck all of us very hard. That was 

a decision where the Court held that it was a violation of the commerce clause to restrict guns within so many feet of a school. 

In 1972, the Congress passed the Clean Water Act ‘‘to restore 

and maintain the chemical, physical and biological integrity of the 

nation’s waters.’’ That’s a quote. 

The act prohibited the discharge of any pollutant into navigable 

waters without a permit issued by the Army Corps of Engineers or 

the EPA. And for over 30 years, the courts and Congress gave 

these entities broad discretion to regulate water supply. 

In a 5–4 ruling in 2006, the Court reversed course and said that 

the Army Corps had exceeded statutory authority in limiting pollutants in certain wetlands. 

In California, these decisions have left seasonal streams unprotected by the Clean Water Act, opening them up to development, 

prone to flooding that were formerly protected areas. 

Further, the ambiguity left by the Court’s decision has left EPA 

and the Army Corps with little clarity on the bounds of their jurisdiction under the act, leading to agency expenditures on establishing and defending their jurisdiction rather than on enforcement. 

Here is the question. When do you believe it is appropriate for 

a court to overturn the reasoned decision of a Federal agency that 

action is needed pursuant to a statute? 

Ms. KAGAN. Senator Feinstein, I don’t know the case that you 

mention at all. I think the typical approach of a court, obviously, 

when it interprets a statute, and this is very important, is to figure 

out what Congress meant when it enacted that statute. 

The court acts outside its proper boundary in trying to impose its 

own meaning on a statute or to improve on the meaning that Congress gave to the statute. Instead, the legislative power is Congress’ and what the court is supposed to do is to figure out what 

Congress meant. 

Now, sometimes that’s not so easy, because sometimes language 

is imprecise, new circumstances develop, it’s unclear how Congress 

intended for a statute to apply, or sometimes Congress has even— 

just they make a mistake, they’re careless, whatever. Sometimes 

you do that, right? 

So sometimes there’s some lack of clarity, some ambiguity in a 

statute, and, there, the appropriate course, the course that the 

court has chosen, and I’ve written about this in my scholarly work, 

is to give deference to the agency. 

And the idea of the law in this area, it’s called the Chevron Doctrine, the idea of the law is that Congress, in enacting a statute 

and in giving authority to the agency to implement that statute, 

has impliedly delegated power to the agency to clarify any ambiguities that might arise in that statute; and, that it’s more appropriate for an agency to clarify those ambiguities than it is for a 

101 

court to do so, and that’s why Chevron says the courts are to give 

deference to the agency. 

I have written about this a good deal. My field is administrative 

law and I’ve written about the Chevron Doctrine. It’s an important 

doctrine, for the reason I just said, that when there are ambiguities 

in a statute, when it’s unclear how a statute should apply to a particular kind of administrative action, one possibility is that the 

court gets to decide that. The other possibility is that the administrative agency gets to decide that. 

The court says, in Chevron, it’s better for the agency to do so, 

because the agency has more competence in the area, it has more 

expertise in the area, because the agency has some political accountability which courts do not have, and, also, because we think 

that Congress would have made that choice; that Congress would 

have wanted the entity with political accountability and with expertise to make the decision rather than the courts. 

In that sense, Chevron is actually a great example of courts saying that the court’s own role should be limited. It should be limited 

there. It’s with respect to an administrative agency that really has 

expertise and that has political accountability. 

Senator FEINSTEIN. Thank you. That is very helpful. Let me ask 

a quick question in my remaining time on standing. With many environmental statutes, such as the Clean Water Act, the Endangered Species Act, the Clean Air Act, Congress has included provisions permitting citizens or citizen groups to bring lawsuits to redress violations of the law. 

When regulatory agencies fail to do their jobs, for any reason, be 

it incompetence, corruption, political interference, or lack of resources, citizen suits provide a means for private citizens to step 

forward and ensure that our Nation’s environmental protections 

are not ignored. 

In a series of cases, it has been argued, however, that citizens 

do not have constitutional standing to bring these cases, because 

they cannot prove that they have been personally and concretely 

harmed by global warming, the pollution of waterways, or the depletion of species. 

So here is the question. Do you believe it is possible for citizens 

to demonstrate that environmental harms have injured them for 

constitutional purposes? 

Ms. KAGAN. Senator Feinstein, the answer is yes, depending on— 

much depending on what Congress does. So let me step back for 

a minute. 

Article 3 has what’s called a case or controversy requirement, 

and this is a very important aspect of the judicial system. It’s really one of the things that keep judges judging and not doing anything else, which is that they can only decide concrete cases or controversies. 

They can’t make pronouncements on issues, legal or otherwise. 

They can’t issue advisory opinions. They can only decide cases or 

controversies. And one important aspect of what it means to be a 

case or controversy is that a person has standing to bring that 

case. 

And there are usually considered to be three requirements for 

that standing. First, a person has to have suffered an injury; secVerDate Nov 24 2008 12:24 Aug 23, 2011 Jkt 067622 PO 00000 Frm 00111 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\67622.TXT SJUD1 PsN: CMORC
102 

ond, the person has to show that that injury was caused by the action that she is complaining about; and, third, the person has to 

show that the relief that the person is seeking from the court will 

actually redress the injury. 

And all of those are important. They are all actually constitutional requirements. Now, that injury can be of many different 

kinds. It can be economic injury, but it can also be a kind of injury 

that you get when the environment is degraded and you can’t use 

the parks in the way you would have wanted to use the parks. 

Senator FEINSTEIN. Like asthma in Los Angeles from ozone. 

Ms. KAGAN. The injury can be of a kind like that, certainly. Now, 

the Court has said that people have to be able to show that that 

person specifically has been injured, and there’s some sort of specificity and concreteness requirement that the Court has used in the 

standing question. 

But the Court has also made clear that Congress can define, 

within broad limits, a set of people who Congress believes is injured by a particular practice, such that they can bring suit. 

So the standing question is one that I think is not entirely, but 

to a great extent, within Congress’ control; that Congress can say, 

‘‘Look, there are some set of people’’ and it gets to define those people as it wants who are injured by some kind of action and who 

should have an entitlement to go to court to redress that action. 

Senator FEINSTEIN. In legislation, in other words. 

Ms. KAGAN. That’s right. That Congress does that in legislation 

and if Congress does do that in legislation, within broad limits, as 

I say, but if Congress does, the Court should respect that and 

should hold that such a suit complies with Article 3. 

Senator FEINSTEIN. Thank you very much. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you very much, Senator Feinstein. 

We will take a short break, about 10 minutes, and then come 

back. Again, I appreciate Senators on both sides staying within 

their allotted time. 

We will have one change. Normally, we would go to Senator 

Grassley, but because of a conflict in scheduling, you are going to 

switch and we will go to Senator Kyl when we come back in. That 

is with the concurrence of both the Senators. 

We stand in recess. 

[Recess 11:40 a.m. to 11:56 a.m.] 

Chairman LEAHY. Senator Kyl, and then we will go to Senator 

Feingold. Then we will break for lunch and come back. Emerging 

Senators will be next in line after they have to vote at the desk 

in that 2:15 vote and come back here. That is what I intend to do, 

and I will then recognize whoever is next in line. 

Senator Kyl. 

Senator KYL. Thank you. 

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

Ms. KAGAN. Or how important my answers. 

Senator KYL. When we met, I tried to give you an idea of the 

questions that I would ask, and I think I can pretty much follow 

what I laid out to you. So let me do that. I also think most of my 

103 

questions can be answered pretty succinctly, and I would appreciate if you could do that. 

So let me start by asking you the standard for judges in approaching cases that we talked about, starting with the President’s 

idea. I will remind you. He has used a couple of different analogies. 

One was to a 26-mile marathon and said that in hard cases, adherence to precedent and rules of construction and interpretation will 

only get you through the first 25 miles. 

And he has said that while the law is sufficient to decide 95 percent of cases, in the last 5 percent, legal process alone will not lead 

you to the rule of decision. He says the critical ingredient in those 

cases is supplied by what is in the judge’s heart or the depth and 

breadth of the judge’s empathy. 

My first question is, do you agree with him that the law only 

takes you the first 25 miles of the marathon and that the last mile 

has to be decided by what is in the judge’s heart? 

Ms. KAGAN. Senator Kyl, I think it’s law all the way down. When 

a case come before the court, parties come before the court, the 

question is not do you like this party or do you like that party, do 

you favor this cause or do you favor that cause. 

The question is, and this is true of constitutional law and it’s 

true of statutory law, the question is what the law requires. 

Now, there are cases in which it is difficult to determine what 

the law requires. Judging is not a robotic or automatic enterprise, 

especially on the cases that get to the Supreme Court. A lot of 

them are very difficult and people can disagree about how the constitutional text or precedent—how they apply to a case. 

But it’s law all the way down, regardless. 

Senator KYL. In the time of sentencing, a trial court might be 

able to invoke some empathy, but I cannot think of any other situation where, at least off the top of my head, it would be appropriate. 

Can you? 

Ms. KAGAN. Senator Kyl, I don’t know what was in the—I don’t 

want to speak for the President. I don’t know what the President 

was speaking about specifically. 

I do think that in approaching any case, the judge is required 

really, not only permitted, but required to think very hard about 

what each party is saying, to try to see that case from each party’s 

eyes; in some sense, to think about the case in the best light for 

each party, and then to weigh those against each other. 

So I think that the judge is required to give consideration to each 

party, to try to figure out what the case looks like from that party’s 

point of view, and that’s an important thing for a judge to do. 

But at the end of the day, what the judge does is to apply the 

law. And as I said, it might be hard sometimes to figure out what 

the law requires in any given case, but it’s all the way down. 

Senator KYL. Statutory, Constitution, the law precedent. 

Ms. KAGAN. That’s correct. 

Senator KYL. Now, when the President announced the retirement 

of Justice Stevens, he said judges—this is a slightly different formulation. So the next question has to do with the second way that 

he formulated it. 

He said, ‘‘Judges should have a keen understanding of how the 

law affects the daily lives of the American people and know that 

104 

in a democracy, powerful interests must not be allowed to drown 

out the voices of ordinary citizens,’’ was the way he put it. 

Now, the media outlets have summarized this and called it the 

‘‘fight for the little guy sensibility.’’ I am not sure that is exactly 

the way the President would put it. But you heard some of my colleagues here yesterday lament the alleged activism of the current 

Court in supposedly always ruling for the corporate interests or the 

interests of big business. 

Do you agree with the President and my colleagues that judges 

should take into account whether a particular party is a big guy 

or a little guy when approaching a question of law or that one side 

is powerful or that one side is a corporation? 

Ms. KAGAN. Here is what I think. I think that courts have to be 

level playing fields and that everybody has to have an opportunity 

to go before the court, to state his case, and to get equal justice. 

And one of the glorious things about courts is that they do provide 

that level playing field in all circumstances, in all cases. 

And even when that level playing field is not provided by other 

branches of government, even when there is some imbalance with 

respect to how parties come to Congress or the President or the 

State Houses, the obligation of courts is to provide that level playing field; to make sure that every single person gets the opportunity to come before the court, gets the opportunity to make his 

best case, and gets a fair shake. 

Senator KYL. Now, may I just—when you say level, to ensure a 

level playing field, you are not saying that if the parties come to 

court with positions that are unequal—that is to say, one party’s 

position is better than the other party’s position—that the court’s 

obligation is to try to somehow make those two positions the same. 

Ms. KAGAN. No, no, no. I mean, it’s just a matter of everybody 

is entitled to have his claim heard. Everybody is entitled to fair 

consideration. It doesn’t matter whether you’re an individual or 

you’re a corporation or you’re the government. 

I mean, one of the really remarkable things about watching, actually, a Supreme Court argument is sometimes I go up there and 

I’m arguing for the government, very sort of—I mean, you would 

think it’s kind of a favored position to be arguing for the government, and it turns out it’s not. 

It turns out that the justices give you, as the government’s representative, just as hard a time, maybe a harder time, than they 

give everybody else, and that’s the way it should be. Whether 

you’re the government, whether you’re a corporation, whether 

you’re a person, no matter what kind of person you are, no matter 

what your wealth, no matter what your power, that you get equal 

treatment from the Court. 

And what I meant by equal treatment is just that the Court 

takes your claim seriously, takes your case seriously, listens to you 

as hard as it listens to anybody else, and then makes the right decision on the law. 

Senator KYL. During his confirmation hearing, Chief Justice Roberts said, ‘‘If the Constitution says’’—this was in response to a 

question, by the way. And he said, ‘‘If the Constitution says that 

the little guy should win, the little guy is going to win in court before me. But if the Constitution says that the big guy should win, 

105 

well, then, the big guy is going to win, because my obligation is to 

the Constitution. That’s the oath.’’ 

Do you agree with Chief Justice Roberts? 

Ms. KAGAN. I do, Senator Kyl. 

Senator KYL. Now, one of the things that I brought up in my 

opening statement was, obviously, your clerkship for Justice Marshall and my belief that Justice Marshall’s views are more along 

the line of viewpoint that President Obama expressed. And you 

wrote about this in more than one way. 

Let me just cite one thing you wrote about Justice Marshall’s 

view, and I am quoting now. You said, ‘‘In Justice Marshall’s view, 

constitutional interpretation demanded above all else that the 

courts show a special solicitude for the despised and disadvantaged. It was the role of the courts in interpreting the Constitution 

to protect the people who went unprotected by every other organ 

of government, to safeguard the interests of people who had no 

other champion. The court existed primarily to fulfill this mission,’’ 

you wrote about Justice Marshall. 

In fact, you also wrote that, ‘‘If he had his way, cases involving 

the disadvantaged would have been the only cases the Supreme 

Court heard.’’ 

What is unclear to me is whether you agree with Justice Marshall’s view of the role of the court in constitutional interpretation. 

Ms. KAGAN. Senator Kyl, the last statement you read, the statement about it would be the only case, I think that that was a kind 

of jokey statement. So I would put that aside. 

I think what I was saying in that piece is consistent with what 

I’ve said to you. I think Justice Marshall’s whole life—and this is 

why I said he revered the Supreme Court. Justice Marshall’s whole 

life was seeing the courts take seriously claims that were not taken 

seriously anyplace else. 

So in his struggle for racial justice, he could go to the State 

Houses or he could go to Congress or the President and those 

claims generally were ignored. 

Senator KYL. Let me just interrupt for a second. You wrote here 

that, ‘‘In constitutional interpretation’’—so this is not just a factual 

matter between two parties. We are talking about interpreting the 

Constitution. 

He says the courts should show a special solicitude. 

Ms. KAGAN. I think that was my words. 

Senator KYL. Yes, correct. 

Ms. KAGAN. And I meant special as compared with the other 

branches of government. In other words, that it was the court’s role 

to make sure that even when people have no place else to go, that 

they can come to the courts and the courts will hear their claims 

fairly, and that was what I was saying was a wonderful thing 

about courts, a miraculous thing about courts; that you can be ignored in every other part of the government and you can come to 

a court and a court will say, ‘‘It’s our job to treat you with respect, 

with consideration, with the same kind of attention we give to everybody else.’’ 

Senator KYL. Well, let me just ask you, do you believe, then— 

and it is hard, I realize, though you certainly know—you knew Justice Marshall very well. You knew his reasoning—that he would 

106 

have agreed with Justice Roberts that if the big guy has the law 

on his side, the big guy wins; if the little guy does, then the little 

guy wins, and that is consistent with what Justice Marshall believed, or would he have expressed it more along the lines that 

some of my colleagues have here, that there is too much agreement 

with the corporate interests and big business, as one of my colleagues put it. 

Ms. KAGAN. Senator Kyl, I guess two points. The first is I guess 

I don’t want to spend a whole lot of time trying to figure out exactly what Justice Marshall would have said with respect to any 

question, because the most important thing—I love Justice Marshall. He did an enormous amount for me. 

But if you confirm me to this position, you’ll get Justice Kagan. 

You won’t get Justice Marshall, and that’s an important thing. 

Senator KYL. Yes, and I totally agree with you. It is not what 

Justice Marshall believed that is important here. It is what you believe. Since you have written so glowingly about him, you called it, 

in fact, his vision of the Court, a thing of glory, I believe. 

I am having a hard time figuring out whether, to the extent that 

you do and you have written glowingly about him, whether you 

would tend to judge in cases more actively or more with interest 

in protecting the rights of those who are disadvantaged, for example, or, as you have already expressed here, you would simply base 

it on the facts and the law and the Constitution. 

Ms. KAGAN. The thing of glory, Senator Kyl, is that the courts 

are open to all people and will listen respectfully and with attention to all claims. And at that point, the decision is what the law 

requires. 

There may be differences as to what the law does require, but 

it’s what the law requires, and that’s what matters. 

I guess I would like to go back to—I’ll just give you one case, just 

to make sure that—— 

Senator KYL. Well, can I just keep moving on? I know that the 

time—well, we do not have a lot of time, if I could, please. 

Do you agree with the characterization by some of my colleagues 

that the current Court is too activist in supporting the position of 

corporations and big business? 

Ms. KAGAN. Senator Kyl, I would not want to characterize the 

current Court in any way. I hope one day to join it. 

Senator KYL. And they said you are not political. I appreciate it. 

Let me explore your judicial philosophy just a little bit more here, 

whether you agree with a comment that Justice Marshall said. He 

said, ‘‘You do what you think is right and then the let the law 

catch up.’’ 

Do you agree that that is the right way to approach judging? 

Ms. KAGAN. The way I would judge is the way I told you, that 

you make sure that you give very respectful consideration to every 

person and then determine what you think the Constitution or 

statute, if the case is a statutory case, requires. 

Senator KYL. So you would not have phrased your philosophy as 

Justice Marshall phrased his. 

Ms. KAGAN. I actually never heard Justice Marshall say that. I 

know another co-clerk, another clerk in a different year, wrote that 

she did. I will say, Justice Marshall was a man who spent many 

107 

decades of his life fighting for the eradication of Jim Crow segregation, and you can kind of see why he thought that you should work 

as hard as you can—— 

Senator KYL. He worked outside the box. 

Ms. KAGAN—[continuing]. And eventually the law will catch up. 

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

Senator KYL. That is why it did not seem to me to be out of character for him to have said that. 

Is there anything that you have written—obviously, you have not 

rendered decisions—which would enable us to verify that this is 

your approach to judging? Can you think of anything you have 

written or if you would like to just supply this for the record, if it 

does not come to you immediately, that would verify what you have 

said for us here, that would help us to confirm that what you have 

expressed to us today is, in fact, a view that you have expressed 

about judging? 

Ms. KAGAN. Well, I don’t think I’ve written anything about judging in that way, but I think that you can look to my life, that you 

can look to the way I interact with people. 

I mean, my deanship was a good example, but the way I acted 

as Solicitor General, as well, the kind of consideration that I’ve 

given to different arguments, the kind of fairness that I’ve shown 

in making decisions. I think that those would all be appropriate 

things to look to to try to get some understanding of this aspect of 

me. 

Senator KYL. All right. Let me ask you about some of the bench 

memos. I talked to you a little bit about that when you were in my 

office, as well, and, obviously, we only have time to mention a few. 

But what I was suggesting is that your advice to your boss 

seemed to be not just pragmatic, but almost political in advising 

him either to vote to take a case or not to take a case on cert. 

For example, in Lanzaro v. Monmouth County, you wrote, and I 

quote, ‘‘Quite honestly, I think that although all of the lower court’s 

decisions is well intended, parts of it are ludicrous.’’ But you discouraged Justice Marshall from voting to review the decision, because you were afraid that the Court, and I am quoting now, 

‘‘might create some very bad law on abortion and/or prisoners’ 

rights.’’ 

Now, when deciding whether or not to take a case, should the 

focus not be on whether the appellant or the appellee has the facts 

and the law on their side rather than worrying about whether justices might, in your view, make bad law? 

Ms. KAGAN. Senator Kyl, let me step back just a little bit and 

talk about what clerks did for Justice Marshall. We wrote—Justice 

Marshall was not in what’s called the cert pool. We wrote probably 

thousands of memos over the course of the year about what cases 

the Court should take and what cases the Court should not take. 

And when I was clerking for Justice Marshall, I was 27 years old 

and Justice Marshall was an 80-year-old icon, a lion of the law. He 

had firm views, he had strong views. He knew what he thought 

about a great many legal questions. He had been a judge for some 

fair amount of time. 

108 

And the role of the clerks was pretty much to channel Justice 

Marshall, to try to figure out whether Justice Marshall would want 

to take a case, whether Justice Marshall would think that the case 

was an appropriate one for the Court to take and set aside. And 

that’s what I did and I think that that’s what my co-clerks did, as 

well. 

Senator KYL. Well, do you think you would approach certain decisions that way if you were on the Court? 

Ms. KAGAN. I think that the most important factors in the cert 

petition process, which is, I think, one that I talked to Senator 

Kohl about maybe, are the ones I gave. 

First, most importantly are the questions of circuit conflicts, that 

the court—it’s a very important responsibility of the courts to make 

sure that our law is uniform and to resolve any conflicts that appear among the circuit courts. 

Second is the Court should be available almost all the time 

where a judicial decision invalidates a Congressional statute; that 

Congress is entitled to that kind of respect, to have the Supreme 

Court hear the case before a Congressional statute is invalidated. 

Third, for some set of extremely important national interests, extremely important for any number of reasons, it’s a small category 

of cases, but it’s an important one, and I think that those would 

be the considerations that I would primarily use and those would— 

that is the way I would make decisions. 

Senator KYL. All right. Some of these bench memos suggest other 

basis for making decisions. For example, in Cooper v. Kotarski, in 

assessing whether the Court should take the case, you wrote, 

quote, ‘‘It’s even possible that the good guys might win on this 

issue.’’ 

Now, that would not be a very good basis on which to suggest 

taking a case, would it? And who were the good guys? 

Ms. KAGAN. As I took a look at that memo, Senator Kyl, that was 

just a reference to the people whom I thought Justice Marshall 

would favor on the law, and that’s all the reference was meant to 

suggest; just the people whom I thought Justice Marshall would 

think had the better of the legal arguments. 

Senator KYL. The reason I cited that one is there is a note— 

while you were at the White House, you were asked whether certain—or you asked a colleague, rather, whether certain organizations were on a list of organizations eligible for certain tax deductions, and you referred to two of them. One was the NRA, the other 

was the KKK, and you referred to them as, quote, ‘‘bad guy orgs,’’ 

I presume an abbreviation for organizations. 

So if you presented a case involving, for example, the NRA, 

would you consider the NRA to be a ‘‘bad guy org’’ deserving of defeat in the case? 

Ms. KAGAN. Senator Kyl, I’m sure that that was not my reference. The notes that you’re referring to are notes on a telephone 

call, basically me jotting down things that were said to me. And I 

don’t remember that conversation at all, but just the way I write 

telephone notes is not to quote myself. 

Senator KYL. So your belief is that you were quoting someone 

else when you wrote ‘‘bad guy orgs.’’ 

Ms. KAGAN. Or paraphrasing somebody else, but it was not—— 

109 

Senator KYL—[continuing]. Those were not your—— 

Ms. KAGAN.—[continuing]. It was just telephone notes. 

Senator KYL. And it was not your terminology, it was somebody 

else’s. 

Ms. KAGAN. As I said, or a paraphrase, but it was—the way I 

write telephone notes is just to write down what I’m hearing. 

Senator KYL. You would not, in any event, put the NRA in the 

same category as the KKK, I gather. 

Ms. KAGAN. It would be a ludicrous comparison. 

Senator KYL. Thank you. In another case, in recommending 

the—this is United States v. Kozminski, in recommending the grant 

of cert, you noted that the Solicitor General was, quote, ‘‘for once 

on the side of the angels.’’ 

Now, obviously, it is not whose side you are on that makes the 

difference. 

Ms. KAGAN. I hope that is not my good friend, Charles Fried I’m 

referring to. 

Senator KYL. Indeed, it is. It is and was. How do you define who 

is on the side of the angels? 

Ms. KAGAN. I have not seen that memo, Senator Kyl, but I’m 

sure it was saying essentially the same thing, which was the Solicitor General had the better of the legal arguments, as Justice Marshall would understand the legal arguments. 

Senator KYL. For once, you said. 

Ms. KAGAN. I’m sorry, Charles. 

Senator KYL. Well, in your time as SG, have you made any litigation decisions based on an assessment of which position was the 

side of the angels? 

Ms. KAGAN. I have tried very hard, Senator Kyl, to take the 

cases and to make the decisions that are in the interests of my client, which is the U.S. Government. 

Senator KYL. And it would not be appropriate, as a member of 

the Supreme Court, to decide cases based on that either. 

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

Senator KYL. Let me ask you, in the minutes that remain here, 

about one of the decisions that you made in connection with a request by the Court for the SG’s opinion. The case is Chamber of 

Commerce v. Candelaria. This is an Arizona decision, you will recall, that involved a 2006 law that then Governor of Arizona Janet 

Napolitano had signed and which requires all employers doing 

business in Arizona to participate in the Federal Government’s 

eVerify system that verifies Social Security status, and also provides that employers who knowingly employ illegal aliens can be 

stripped of their business licenses. 

Several groups challenged the Arizona law, saying it was preempted by Federal immigration law, but the Federal district court 

in Arizona and a unanimous ninth circuit panel upheld the law. 

The opponents of the law asked the Supreme Court to take the 

case and strike down the Arizona law. And last November, the Supreme Court asked you, as Solicitor General, for the government’s 

views. 

110 

Ultimately, you decided to ask the Supreme Court to take the 

case and strike down the employer sanctions that are critical to 

making the Arizona law work. 

You and I talked about this case and you are familiar with it, 

to discuss it. 

Ms. KAGAN. Yes. 

Senator KYL. You did not argue that the Court should take it because there was a split in the circuits. 

Ms. KAGAN. That’s correct, Senator. 

Senator KYL. Or that there had been an unconstitutional application of the law in any way. 

Ms. KAGAN. Senator Kyl, I think what we argued in the petition 

was that the Arizona statute or at last this part of it was preempted by Congress and, therefore, the decision below was wrong, 

and that the reason for the Court to take the case was not only 

that it was wrong, because the Arizona statute was statutorily preempted, but also because this was an important question. 

It’s one of the category of cases where—— 

Senator KYL. Right. It is that third category you said—— 

Ms. KAGAN. The third category. 

Senator KYL—[continuing]. There were not very many, but where 

they are, they are important. 

Ms. KAGAN. That’s right. Lots of States are passing these kinds 

of laws and the guidance from the Supreme Court would be appropriate as to what kinds of legislation. 

Senator KYL. Well, the Supreme Court is not in the business of 

giving guidance, though, is it? 

Ms. KAGAN. Well, I think for the Supreme Court to set down its 

view of what the Federal statute preempts would be very helpful 

to the State legislatures. 

Senator KYL. Sure. But the Court turns down hundreds of cases 

and I am sure its ruling in each case would be helpful. 

As I recorded your comment earlier this morning, in that third 

category, you said that it would have to be a strikingly significant 

issue for the Court to take the case in that third category of an important Federal question. 

Ms. KAGAN. Senator Kyl, what we argued to the Court in the—— 

Senator KYL. No. You said it should be a strikingly significant 

issue, did you not? 

Ms. KAGAN. I’m honestly not sure exactly the words I used. 

Senator KYL. I got the quote accurately. 

Ms. KAGAN. But if I might, Senator Kyl. 

Senator KYL. Go ahead. 

Ms. KAGAN. What we argued to the Court in Candelaria was that 

it was a Federal statute in this case—I know that—well, there was 

a Federal statute in this case. Our best read of that Federal statute 

was that it preempted the licensing provision of the Arizona law. 

That was our best understanding of what the Federal statutes did. 

And that because there’s so much legislative activity in this area 

happening across this country right now, that for the Supreme 

Court to decide that question and to determine whether the Federal statute preempted the State law was one of those moments 

where the issue is of real significance across the country. 

111 

Senator KYL. So you think that that made it strikingly significant. 

Ms. KAGAN. I think that this is a significant issue and people, 

I think, on both sides agree that it is a significant issue as to 

whether the Federal statute prevents States from doing this. And 

this is, again, not a decision or a view as to whether these State 

statutes are good or bad. They might be very good. 

The only question is whether Congress has, by legislation, and 

here the legislation was in the immigration—— 

Senator KYL. But here is what the Federal law—I mean, it says 

this is an area for the Federal Government. But under the Federal 

law, States are explicitly permitted to legislate in this area, and I 

am quoting the statute now, ‘‘through licensing and similar laws.’’ 

And you argued in your brief that the State’s revoking of a license did not qualify for that explicit exception to Federal preemption under the Federal statute. Right? 

Ms. KAGAN. Senator Kyl, what we argued in the brief was that 

the Arizona law did not qualify under that exception, because what 

that exception was meant to talk about were sort of traditional licensing laws of the kind when you license a lawyer or you license 

a doctor or you license a chiropractor, but not a law that essentially 

imposes sanctions on any employer for hiring illegal aliens. 

Senator KYL. But this was a statute that dealt with—the Federal 

statute deals with hiring people who are not qualified to be hired 

in the country, who are called illegal aliens. And it said that the 

Federal Government has the preemption in this area, except where 

States pass laws through—or attempt to deal with the issue 

through licensing and similar laws. 

So was it not inferred there that the Court meant for States to 

be able to do exactly the kind of things that the State of Arizona 

did? It was not limited to licensing a professional. It was the denial 

of a license to someone who was violating the law. 

Ms. KAGAN. Yes. We definitely took a different position, Senator 

Kyl, and the reason we did is this statute clearly would prevent a 

State from saying anybody who hires an undocumented or illegal 

alien would be fined $25. 

The statute clearly prevents a State from saying that, from imposing a penalty on an employer who hires an illegal alien. And if 

the statute clearly prevents a State from imposing a penalty like 

that, then surely the statute also prevents a State from imposing 

a penalty, which is the withdrawal of any of the—— 

Senator KYL. Well, that is the argument that you made. The Federal Government could impose a fine, but the Federal Government 

does not get into the licensing of businesses. That is a State activity. 

So I could argue just as easily, and I am sure the Court will consider the argument, that, of course, that is the kind of thing that 

States can do. And so just as a State could grant a license, it could 

also take a license away if a business violated the law. 

We will talk a little bit more about this, I guess, in the second 

round. But the reason that I raise this is that my guess is, and I 

would ask you whether you agree, that without the SG having 

taken the position that you did, that it is much less likely that the 

Court would have taken the case. Would you agree with that? 

112 

Ms. KAGAN. I don’t know that, Senator Kyl. Sometimes they listen to us and sometimes they don’t. Sometimes we tell them in no 

uncertain terms this is a terrible case to take, and they take it anyway. 

Senator KYL. Well, the stats are 80 percent. So that is a pretty 

good percentage, when you ask them to take a case and they do. 

Chairman LEAHY. Was this a case where the Supreme Court 

asked the Solicitor General to file a brief? 

Senator KYL. Yes. 

Ms. KAGAN. This is a case where—and those of—the 80 percent 

statistic, I think, is the statistic when the government files its own 

cert petition. I think that we do much less well with the Court 

when we just—when we answer the Court’s requests for our advice 

on whether to take—— 

Senator KYL. When we have the next round, I will have the exact 

statistic on that. 

Ms. KAGAN. I hope we do well. 

Senator KYL. I think you do very well. 

Chairman LEAHY. Senator Feingold. And then when Senator 

Feingold finishes, we will break. And I would reiterate to Senators—and, Senator Kyl, you are in the leadership, you probably 

know this, but apparently the vote is at 2:15. I will vote at the desk 

and come back and I will recognize the next person in line, which 

would be on the Republican side. 

Senator Feingold. 

Senator FEINGOLD. Thank you, Mr. Chairman. 

I guess I would like to start by picking up on your discussion 

with Senator Hatch about the Citizens United decision. Senator 

Hatch talked about a book with a single mention of a candidate 

and pamphlets designed by small S chapter corporations. 

But, of course, as you indicated already, what Congress addressed in the McCain-Feingold bill was TV and radio election advertising right before the election, paid for out of the treasury 

funds of unions and corporations, both profit and nonprofit. 

So it was the Supreme Court that instead reached out and asked 

for re-argument and called into question a 100-year-old statute 

that prohibited corporations, more generally, from spending money 

on elections. 

I just want to clarify this. So let me ask you. Was it not highly 

unusual, if not unprecedented, for the Court to do this? 

Ms. KAGAN. Senator Feingold, the U.S. Government in the case 

did urge the Court not to decide the case on the grounds that it 

did. It’s obviously unusual whenever the Court reverses a precedent in this way. 

The Court thought it had grounds to do so, but it is an unusual 

action, yes. 

Senator FEINGOLD. And was it not unusual how they got to the 

point where they could make that decision based on the facts? 

Ms. KAGAN. Senator Feingold—— 

Senator FEINGOLD. It was unusual, was it not? 

Ms. KAGAN. Senator Feingold, certainly, the case, as it came to 

the Court, did not precisely address—did not address the question 

that the Court ended up deciding. 

113 

Senator FEINGOLD. Thank you. And the reason that many people, 

including the President and many members of the community were 

outraged by the decision was not simply because the Court reversed its 2003 decision upholding the issue and provisions of the 

McCain-Feingold bill, but it also reached out to decide an issue 

that was not raised by the case at hand and overturn law dating 

back more than a century. Did it surprise you that the Court’s decision caused such an uproar? 

Ms. KAGAN. Oh, I don’t know, Senator Feingold. I’m not, you 

know, an expert in public reaction to things and I don’t think that 

the Court should appropriately consider the public reaction in 

that—in that sense. 

Senator FEINGOLD. Do you take note of public reaction to Supreme Court decisions? 

Ms. KAGAN. Senator Feingold, I read the same newspapers that 

everybody else does. 

Senator FEINGOLD. But you’re not willing to comment on whether 

this was a greater reaction or this was a greater reaction that in 

other—— 

Ms. KAGAN. I don’t know, Senator. 

Senator FEINGOLD. All right. Let me go to national security 

issues that you already discussed a bit with Senator Feinstein. I 

think it’s safe to say that you agree that the Youngstown concurrence was the appropriate starting point for these types of questions having to do with whether statute is something that can be 

overridden. 

Go back to your understanding of how to apply Justice Jackson’s 

test. Specifically, do you read it to allow for any circumstances 

where the President could authorize in violation of the criminal 

laws that Congress has passed? 

Ms. KAGAN. Where the President could authorize the violation of 

criminal laws that Congress has passed? 

Senator FEINGOLD. Congress has passed. 

Ms. KAGAN. Senator Feingold, I couldn’t think of any circumstance offhand. I don’t want to say categorically that there 

might never be one if something was very much at the core of presidential power under Article 2. But it’s—it would be a highly, highly unusual circumstance. 

Senator FEINGOLD. And you used the phrase ‘‘few and far between’’ but when pressed about a circumstance where it could 

occur, the example you gave was not something out of Article 2 or 

out of the Commander-in-Chief Powers. What you suggested was 

that, of course there could be a situation where Congress passes a 

law that would violate, let’s say, the explicit pardon power which, 

of course, I can see. But do you know of any examples of where this 

could occur simply within the context of the Commander-in-Chief 

Powers under Article 2? 

Ms. KAGAN. It’s interesting, Senator Feingold, because I think I 

read someplace where you stated a hypothetical which was, suppose Congress made somebody else Commander-in-Chief and the 

President said, I’m going to ignore that and I’m going to continue 

to be Commander-in-Chief. I don’t know where I read that, that 

you had said that. It struck me as a good example of something 

where, you know, that’s core Commander-in-Chief power. 

114 

Senator FEINGOLD. But, you know, of no actual example in any 

court case where the Supreme Court has upheld a presidential assertion of this power in a way that would override a criminal statute; is that correct? 

Ms. KAGAN. I do not know of any court case like that, that’s correct. 

Senator FEINGOLD. Let me ask you a question; I asked Justice 

Scalia about this. What is the proper role here of the Judiciary in 

resolving a dispute over the president’s power to disobey an express 

statutory prohibition? 

Ms. KAGAN. I think the Court has an important role. I mean, the 

Court generally, I think, has a very important role in policing constitutional boundaries. And that might be policing the boundaries 

when Congress or some other governmental actor violates somebody’s individual rights in a way that’s not permitted by the Constitution, or it might be a case in which one branch impermissibly 

interferes with another branch or impermissibly infringes on the 

appropriate authority of another branch. So there is some category 

of cases, of course, as between the political branches, that the 

Courts sort of have left to the political branches to work out themselves. And to the extent that the political branches can work their 

problems out by themselves, I think that that’s generally considered and it’s generally right to be considered a good thing. But 

there are some times when the Court really does have to step in 

and police those boundaries and make sure that the president 

doesn’t usurp the authority of Congress or vice versa. 

Senator FEINGOLD. In 2007 you gave a speech to Harvard Law 

School graduates about the rule of law. And you talked about an 

infamous incident where Attorney General John Ashcroft was 

asked to authorize an illegal government program while hospitalized for an emergency operation and he refused. And you told the 

graduates that they too would, ‘‘face choices between disregarding 

or upholding the values imbedded in the idea of the rule of law.’’ 

What prompted you to do discuss this theme and in this incident 

in that speech? Do you think that this incident holds lessons for 

Supreme Court Justices as well? 

Ms. KAGAN. Senator Feingold, it was a speech I gave to the graduating class. When I speak to students and particularly when I 

speak to them at important moments in their life like graduation 

when they are really thinking about what careers they want to 

have in the law, you know, I try to tell them some things that will 

stick with them and be meaningful to them and some things that 

I think that it’s important for them to keep in mind as they start 

their careers. And the rule of law and adherence to the rule of law 

there’s no more important thing for any law school graduate to 

keep in the forefront of his or her minds than that. 

And that was a speech where I thought that there were some 

current-day incidents as well as I used some historical incidents to 

just talk about the rule of law. About how no person how ever 

grand, how ever powerful is above the law; to talk about the importance of adhering to the law no matter the temptations, no matter 

the pressures that one might be subject to in the course of one’s 

career. And I think that there’s nothing more important than that, 

and that’s what I tried to express in that speech. 

115 

Senator FEINGOLD. What was it about the Ashcroft incident that 

fit that category? 

Ms. KAGAN. Well, that was—that was one of the examples I used 

as Senator Ash—then Attorney General Ashcroft had really taken 

a very principled stand. And I thought that that was notable and 

pointed that out along with a number of others where people have 

taken very principled stands notwithstanding some considerable 

amount of pressure to do otherwise. 

Senator FEINGOLD. Thank you. Let’s turn to the Second Amendment. I’ve long believed that the Second Amendment grants citizens a right to own firearms. I was pleased when 2 years ago in 

the Heller decision the Supreme Court agreed with this view. And, 

as you know, the Second Amendment on its face applies only to the 

Federal Government, not to the states, but, of course the Court just 

ruled in the McDonald case that the Second Amendment rights 

apply to the states via the Fourteenth Amendment’s guarantee of 

due process of law. 

Now, there will undoubtedly be more cases in the future that test 

the limits of the government’s ability to regulate the ownership of 

firearms. Accordingly Heller specifically indicated that prohibitions 

on the possession of guns by felons and the mentally ill, laws forbidding guns in sensitive places such as schools and government 

buildings and concealed carry restrictions could pass muster. And 

the Court indicated that the examples it gave of permissible restriction was not an exclusive list. 

You worked on gun issues when you were in the Clinton White 

House or you were familiar with the kinds of restrictions that Congress has considered and you obviously are familiar with the Supreme Court cases. Can you give us a sense of how you would approach a challenge to the constitutionality of a law or regulation 

that restricts gun ownership short of the outright ban and the trigger-lock requirement that were overturned in Heller? 

In other words, how in your view should a Supreme Court Justice go about deciding whether a law infringes on Second Amendment rights? 

Ms. KAGAN. Well, Senator Feingold, I think that the Court—I 

have not—first, I should say, I have not read all the way through 

the McDonald decision because it came out yesterday. But, I think 

that it does not suggest anything to the contrary of what I’m going 

to say. 

I suspect that going forward the Supreme Court will need to decide what level of constitutional scrutiny to apply to gun regulations. Some people need Heller to apply strict scrutiny. Other people think that Heller suggests a kind of intermediate scrutiny. I’ve 

seen sort of both views of that decision. It’s clearly a decision that 

will come before the Court. 

I think as you said, the Heller decision clearly does say that 

nothing in it is meant to suggest the unconstitutionality of certain 

very long-standing kinds of regulations, and the felon in possession 

example is the first on that list. But the Court also says that the 

list is not exhaustive. And so I think that there will be some real 

work for the courts to do in this area. 

I should say that the work that I did in the Clinton White House 

was all work, of course, before Heller was decided. And so we really 

116 

didn’t, you know, apply this kind of scrutiny, this kind of examination to those—to those decisions. What President Clinton was trying to do back in the 1990s and what I as his policy aide was trying 

to help him do was to propose a set of regulations that had very 

strong support in the law enforcement community, that had actually bipartisan support here in Congress to keep guns out of the 

hands of criminals, to keep guns out of the hands of insane people. 

It was very much an anti-crime set of proposals that I worked on 

back then in the 1990s. And, you know, I think that we did not 

consider those regulations through the Heller prism just because 

Heller didn’t exist at that time. But I do think that these cases may 

be coming before the Court and the Court will consider sort of regulation by regulation which meets that standard. 

Senator FEINGOLD. Going back to campaign finance issues. 

Again, because of your work in the Clinton White House and your 

advocacy for the government’s position in the Citizens United case, 

you’re very familiar with this area. I obviously care a lot about this 

issue and so I’m pleased that obviously your learning curve isn’t 

very steep on this topic. But I’m sure that you heard that Senator 

McConnell has attacked you because of your previous work as a 

policy aide in the area. He thinks you approach election law as a 

political advocate and that you were committed to a political agenda. And he says that’s, ‘‘the very opposite of what the American 

people expect in a judge.’’ 

I think it’s important to point out that when you’re in White 

House counsel’s office, you have the job of evaluating the constitutionality of various policy proposals. In there you weren’t shy about 

expressing doubts about whether certain ideas could survive a constitutional challenge. For example, in a note to Jack Quinn that 

was in the documents provided the committee, you said, ‘‘I think 

it’s pretty clear that a ban on non-citizen contributions be unconstitutional (though abandoned foreign contributions would not be).’’ 

In another memo to Quinn you expressed doubt that any constitutionally valid proposal to limit independent expenditures exists. So you said you were, ‘‘weary of touting this notion to the 

President.’’ 

It seems to me that you were quite aware of the need to think 

critically and legally as well as politically as you carried out your 

responsibilities. Can you say a little bit about the process of reviewing draft legislation in the counsel’s office and the importance 

of developing legislation that is consistent with Supreme Court 

precedent as it exists at the time? 

Ms. KAGAN. Senator Feingold, I tried my hardest when I was in 

the—when I worked in the Clinton Administration, including as a 

lawyer, to provide good legal advice to the President. Now, it’s a 

context in which one is dealing with law and policy and politics at 

the same time. That’s the kind of institution it is. But it’s very important for political figures and for the policy people to understand 

what the law requires and what the law permits and for lawyers 

to give good advice on those topics and that’s what I tried to do. 

I should say that none of what I did in the Clinton White House 

whether as a lawyer for the Administration or as a policy person 

for the Administration really has much to do with what I would do 

as a judge. 

117 

I know that when Chief Justice Roberts was here and he talked 

about a position that he had had in the Justice Department, I 

think he separated out those two quite clearly. And I think he was 

right to do so. But one is simply in a different position and at the 

same time as one is trying to provide good and independent legal 

advice to the President, one is also part of the President’s team and 

doing so in that context. A very, very different kind of context from 

the context that I would be approaching cases as a judge. 

But I will say that I think that my experience in the White 

House during the 1990s is valuable in one sense, which is that it 

taught me to very much respect the other branches of government. 

You know, I’m not a person whose experience is only and all about 

courts. I don’t think courts are all there is in this government. I 

think that the political branches, Congress and the President are 

incredibly important actors and should be making most of the decisions in this country. Courts do police the constitutional boundaries 

and do ensure that Congress and the President don’t overstep their 

role, don’t violate people’s individual rights. But when it comes to 

policy, it ought to be courts that—excuse me, it ought to be Congress and the President that do the policymaking. And the courts 

ought to respect that and ought to defer to that. 

And I think that my experience in the executive branch and dealing a lot with Congress has made me very respectful of the President’s role and Congress’s role in our government. 

Senator FEINGOLD. I think that’s an excellent answer. I thank 

you for it. 

I’m going to turn to something that requires a little more background now. A question that seem especially pertinent in the wake 

of the Deep Water Horizon disaster. In 1989 the largest oil spill in 

American history decimated Prince William Sound when we 

watched with horror as oil from the Exxon Valdez seeped into one 

of our most fragile ecosystems and caused tremendous damage. At 

the time it was hard to imagine that we would ever again see an 

oil spill of this magnitude or this kind of environmental damage. 

Tragically, we now know better. 

Now, as was discussed by a number of Senators yesterday, after 

extensive litigation a jury in Anchorage awarded $5 billion in punitive damages to the plaintiff in the Exxon Valdez case which at the 

time was less than Exxon profits in 1988 and is now less than the 

total profits Exxon took home in the first quarter of 2010. Nineteen 

years after the jury awarded that amount, Alaskan landowners and 

commercial fishermen had still not received a single penny of that 

$5 billion award and we were hoping that the Supreme Court 

would finally vindicate their claims. 

But instead of considering the need to punish Exxon and deter 

this sort of conduct in the future, the Court manufactured a new 

rule and concluded that the award was excessive. In reaching that 

decision the Court stated that Exxon and other corporations need 

to have predictability so they can look ahead and know what the 

stakes are when they choose one action or another. 

Now, it’s not hard to read this decision, especially in light of 

what’s happened in the Gulf, as the Supreme Court giving a free 

pass to reckless corporations even when our health and environment are at stake. This is also one of many decisions over the last 

118 

decade where the Court has bent over backwards to find a way to 

protect corporate interests. 

One of the judiciary most important roles is to prevent powerful 

groups and corporations from running rough shot over the rights 

of individuals. What did you think of the Exxon decision and do 

you agree that courts have an important role to play in protecting 

people who are injured by corporate misconduct? 

Ms. KAGAN. Senator Feingold, courts have an important role to 

play in protecting people under the law who are injured by corporate misconduct or by any other. This is an active area of the 

law, this question of what limits should be placed, if any, on punitive damage awards. 

What the Supreme Court did in the Exxon case was really to decide it under its common law maritime powers. This was actually 

not a due process case as which some prior punitive damages cases 

have been. Instead what the Court decided, a majority of that 

Court, was that there was an appropriate ratio of one to one, I believe it was, for punitive damages as compared with compensatory 

damages as a matter of Federal common law. And the relevance of 

that fact is that common law typically can be overturned by statute. And so that gives Congress an important role to play in this 

area. That would, of course, not be the case to the extent that any 

limits on punitive damages were a matter of the Constitution. But 

as I understand the Exxon decision, the Exxon decision was based 

on common law power rather than a constitutional ruling. 

Senator FEINGOLD. Let me do something completely different. 

Last year I asked Justice Sotomayor how a Yankees’ fan could understand the everyday challenges of rural and small-town Americans in Wisconsin who root for the Brewers or Packers. I understand you’re a Mets fan, which at least is more the underdog over 

the—— 

[Laughter.] 

Senator FEINGOLD.—— Ms. KAGAN. I don’t know if it’s more the underdog—— 

Senator FEINGOLD. Well, traditionally, certainly. 

[Laughter.] 

Senator FEINGOLD. So, first of all, if you’re confirmed it should 

make for an interesting dynamic on the Court between the two of 

you, but I want to ask you the same question. 

You grew up in Manhattan. You were a dean at Harvard Law 

School and you’ve lived in big cities most of your life. And there 

may be a perception on some people’s part that you may not completely understand what many Americans are struggling with right 

now. In fact, at a recent town hall meeting I held in Stephens 

Point, Wisconsin one of my constituents asked why nominees to the 

Supreme Court always seem to be from the east coast when we 

have plenty of fine candidates in the Midwest. 

How will you strive to understand the effects of the Supreme 

Court’s decisions in the lives of millions of Americans who don’t 

live on the east coast or in our biggest cities? 

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

Senator FEINGOLD. Well, you’re getting closer. 

[Laughter.] 

119 

Ms. KAGAN. Senator Feingold, I hope I’ve always been a person 

who’s able to see beyond my own background and to listen hard to 

people. Not only we’ve talked about listening hard to people of different political persuasions and views, but to try to learn from people who have different geographic backgrounds, different religious 

backgrounds, different racial backgrounds. I mean, I think that 

this is something not only that makes a good judge, but that makes 

a good human being is to try to learn from people other than yourself. And I hope I’ve used the opportunities that life has provided 

me in my life to do that. 

Senator FEINGOLD. I mentioned in my remarks on Monday that 

public confidence in the Court is extremely important just as it is 

crucial that the public has confidence in the integrity of its elected 

representatives. Last week there were news reports that the judge 

who overturned the Obama Administration’s moratorium on deepwater drilling may own stock in energy companies. It’s very damaging to the judiciary when a judge’s neutrality can be questioned 

which is why I think, obviously, the ethical choices of a judge must 

be beyond reproach. 

What do you think are the most important ethical questions facing the judiciary, particularly the Supreme Court, and will you be 

an advocate within the Court and the judiciary for addressing 

these issues forthrightly and strongly? 

Ms. KAGAN. Well, certainly, Senator Feingold, what Chairman 

Leahy opened up with which is the whole question of making sure 

a judge is appropriate—is recused from cases that a judge should 

be recused from. And there are obviously some hard calls there and 

some judgment calls. But taking those recusal rules very seriously 

is something that any judge should do. And I’m not speaking particularly about this case, the case that you mentioned which I know 

nothing about, but in general I think judges should approach their 

recusal obligations with a great deal of seriousness and care. 

Senator FEINGOLD. And when we spoke in my office, you indicated that you had just recently learned that the Supreme Court 

was basically exempt from the code of judicial conduct and the 

rules that the judicial conference puts in place to apply it and so 

you didn’t really have an opinion about it. But now that you’ve had 

a chance to think about it, do you think, for example, that Supreme 

Court Justices ought to be able to have contacts with parties to the 

case that other judges can’t? 

Ms. KAGAN. Senator Feingold, I really haven’t thought about that 

issue since we talked about it. And I would want to speak with the 

people whom I hope would be my colleagues about it before I answer that question. I think it’s an important question and one worthy of real consideration. 

Senator FEINGOLD. All right. I want to talk with you now about 

the issue of forced arbitration which I’ve been working on for about 

a decade. More and more powerful economic interests are forcing 

consumers and employees to bring their disputes not to the courts 

but to a parallel legal system where the rule of law barely applies 

and where the outcome I think is stacked against them. 

A century ago Congress passed the Federal Arbitration Act to 

allow parties who wanted to take their disputes to arbitration to 

enforce the results of the arbitration in court. In the last several 

120 

decades, however, the Supreme Court has twisted this law to allow 

banks and mortgage companies, health care providers, big Agribusinesses and others to enforce so-called ‘‘take-it-or-leave-it contracts’’ that force people to use arbitration even if they don’t want 

to. I think that’s wrong and Congress needs to change it. 

And just this past week in the Rent-A-Center case the Court held 

that in most cases where a claim is made that enforcement of an 

arbitration clause would be unconscionable it would be the arbitrator—the arbitrator who gets to rule on that issue. Do you understand why the Supreme Court’s decisions in favor of powerful interests who want to force consumers and employees into arbitration 

against their will are so troubling to those who believe that our 

courts must continue to be available to enforce consumer protection, employment discrimination and other laws written to protect 

the powerless from misconduct by the powerful? 

Ms. KAGAN. Senator Feingold, I have not had an opportunity to 

read that case. It was not one that the Solicitor General’s office 

participated in and I don’t have a view of it or much knowledge 

about it. I think that in this—in this—in that case the Supreme 

Court was interpreting a Congressional statute and this is another 

of the areas where Congress does indeed get to state the rules. So 

to the extent Congress thinks the Court got it wrong in that case 

or in any other regarding arbitration, I think it’s appropriate and 

the Court would and should respect what Congress does. 

Senator FEINGOLD. With regard to financial regulation. I’ve 

heard a lot of anger from my constituents about financial institutions that have acted irresponsibly and then looked to the public 

for a safety net when things went wrong. That’s in part why I pose 

the Wall Street bailout, to take perhaps the most egregious example. Since the fall of 2008 the Federal Government provided approximately $170 billion in bailout funding to the insurance giant 

AIG. But in contrast to the many workers in Wisconsin, and others 

who faced a cut in their benefits and pensions because of the recession, AIG insisted incredibly that it was contractually obligated to 

pay roughly $165 million in bonuses to its executive employees 

even as it was staying afloat with taxpayer money. I found it hard 

to believe that the bonuses were legally required. So I was intrigued by a recent piece written by Noah Feldman, who I believe 

you hired when you were at Harvard. Feldman called for a new 

constitutional vision that would, ‘‘focus on government’s duty to 

protect the public not the bankers who needed to be bailed out in 

the first place.’’ 

In light of the recent financial crisis, how should the courts 

evaluate the constitutionality of government regulation of big corporations and financial markets and other efforts to protect citizens 

and consumers from economic disaster? 

Ms. KAGAN. Senator Feingold, it’s a very broad question and I 

guess I couldn’t answer it except, you know, with respect to a particular case, a particular set of circumstances, a particular constitutional provision. I’ve not read Noah Feldman’s article on this so I 

can’t talk about that. But I think, you know, the duty of the Court 

is obviously to apply the constitution to apply the statutes in any 

case that comes before it. And to the extent that the Constitution 

121 

or some particular statute made illegal some of the conduct that 

you’re talking about, the duty of the Court is to enforce that. 

Senator FEINGOLD. One last question. As you know the appointment of so-called ‘‘Czars’’ by the White House got a lot of attention 

last year. Although there was certainly a political component to 

some of the criticism, I did think there was some legitimate matter 

that needed to be explored, particularly since there seems to be a 

trend over the last several administrations and I held a hearing on 

the topic. 

You’ve written a lengthy and impressive Law Review article 

about the President’s ability to direct and control action by administrative agencies so I’m interested in your perspective. Do you 

think there are any constitutional problems with presidents relying 

on non-Senate confirmed Czars to direct administrative policy rather than the heads of administrative agencies? And how do you 

think Congress can exercise meaningful oversight over the Czars 

operating within the White House when the White House counsel 

often takes the position that they should not testify before Congress about their activities? 

Ms. KAGAN. Senator Feingold, I think that there are important 

considerations on both sides of this question. On the one hand the 

President wants to have advisors in appropriate positions, advice 

he can trust, advice he can count upon. On the other hand Congress has an important interest in accountability and making sure 

that the President and the President’s actions can be held to account in this institution. 

I think that the balance between those two, when it comes to the 

President appointing certain people as Czars or whatever you want 

to call them, probably is most appropriately determined by the political branches themselves, by the give and take, the back and 

forth between Congress and the President. Congress, of course, has 

many ways to express to Presidents that it doesn’t like some set 

of actions that he’s taken including some appointments that he’s 

made. 

I suspect that a judicial case on that subject might be a last resort rather than what seems to me to be the more common, and 

I think the more appropriate way of dealing with a conflict and a 

disagreement as to this matter which is Congress and the President kind of battling it out as to the way he should appoint people. 

Senator Leahy. That will be it for this morning. We’ll come back 

within a few minutes after the vote which begins at 2:15. I will 

then recognize the next Republican Senator in line and go to the 

next Democratic Senator. 

I hope you get some lunch. 

Ms. KAGAN. Thank you, Mr. Chairman. 

Senator Leahy. General, you’re the one who has had to do all the 

work here this morning. I appreciate your testimony. We stand in 

recess. 

[Recess 1 p.m. to 2:27 p.m.] 

Chairman LEAHY. I’d welcome everybody back. I understand that 

the next person to question is Senator Grassley. Could you swap 

places with somebody else? 

Solicitor General Kagan, glad to have you back. I hope you at 

least had a chance to have some lunch. 

122 

Solicitor General Kagan. I did, Mr. Chairman. Thank you very 

much. 

Chairman LEAHY. Good. 

Senator Grassley. 

Senator GRASSLEY. Glad to be with you, Ms. Kagan. In an interview published May, 2004, in the Metropolitan Corporate Counsel, you stated, ‘‘Our courts are called upon to decide important matters, matters that often have great public impact. The attitude and 

views that a person brings to the bench make a difference in how 

they reach those decisions. So the Senate is right to take an interest in who these people are and what they believe.’’ 

Could you explain what kind of attitudes and views you were 

talking about in the quote? What attitude and views would you 

bring to the Supreme Court? 

So I will stop here: third, and most importantly, how will they 

‘‘make a difference’’ in how you, reach decisions? And ‘‘make a difference’’ are words out of your quote. 

Solicitor General Kagan. Thank you, Senator Grassley. This really goes back to the questions I started with Senator Leahy about. 

Senator Leahy asked me, did I think that the Senate had an important role to play in this process. And I said, yes, it did, that the 

matter of confirming a Supreme Court justice is a highly significant one for the country, and that the Senate has an important role 

to play. 

Different justices approach constitutional interpretation differently, approach statutory interpretation differently. The Senate 

has both an opportunity, but I think also a responsibility, to try to 

delve into those matters and to try to figure out what stances, what 

approaches a person is likely to bring to the court. 

I tried to suggest to Senator Leahy earlier the kind of approaches 

I’d use. With respect to constitutional interpretation, that I thought 

that a variety—justices should appropriately look to a variety of 

sources; that I didn’t have a grand theory with respect to constitutional interpretation; that I’m more pragmatic in my approach to 

constitutional interpretation; that I believe justices, depending on 

the particular provision, depending on the particular case, depending on the particular issue, should look to text, to history, to traditions, to precedent, certainly, and to the principles embodied in 

that precedent. 

Senator GRASSLEY. The attitudes and views that you have, how 

will they make a difference in how you will reach a decision? 

Solicitor General Kagan. Well, I think that approach to interpretation, to constitutional interpretation, is the one that I would 

bring to the court and is the one that I would use on the court. 

That’s an approach that might be different than some other people, 

same—some people have that approach, some people have a different approach, and I think that those differences do matter. 

Senator GRASSLEY. OK. I’d like to go to the Second Amendment. 

In Sandidge v. United States, the DC Circuit Court of Appeals held 

that the Second Amendment only protects a collective right, not an 

individual right, upholding DC’s handgun ban and registration requirements. A version of this law was later overturned in Heller. 

As a clerk to Justice Thurgood Marshall, you recommended 

against Supreme Court review. Your entire legal analysis was this: 

123 

‘‘Petitioner’s sole contention is that the District of Columbia’s firearms statutes violate his constitutional right to keep and bear 

arms. I’m not sympathetic.’’ 

Why were you ‘‘not sympathetic’’ ? Were you not sympathetic to 

that challenge because it was your belief that the Second Amendment protects a collective, not an individual, right to keep and bear 

arms? 

Solicitor General Kagan. Senator—Senator Grassley, I recommended that the court—that Justice Marshall vote to deny certiorari in that case. This was 20 years before Heller. The state of 

the law was very different. No court, not the Supreme Court and 

no appellate court, had held that the Second Amendment protected 

an individual right. Indeed, none of the justices on the court at that 

time voted to take certiorari in that case. 

When the Supreme Court took cert in Heller, a Circuit Court had 

held that the Second Amendment protected an individual right. 

There was a conflict in the circuits. It was ripe for Supreme Court 

review. But at this time, no court had held that. It had long been 

thought, starting from the Miller case, that the Second Amendment 

did not protect such a right. And as I say, no justice voted to accept 

certiorari in that case. 

Now, the Heller decision has marked a very fundamental movement in the court’s jurisprudence with respect to the Second 

Amendment. And as I suggested to Senator Feinstein, there is no 

question that, going forward, Heller is the law, that it is entitled 

to all the precedent that any decision is entitled to, and that’s true 

of McDonald as well with respect to McDonald’s holding that the 

Second Amendment applies to the States, and that’s what I would 

apply. 

Senator GRASSLEY. So then if there had been—the Heller case existed, you would have been sympathetic to the challenge, and so 

the words ‘‘I am not sympathetic’’ were related to what you thought 

the law was at that time? 

Solicitor General Kagan. It certainly was, Senator Grassley. It 

would have been an entirely different case had Heller existed prior 

to that certiorari petition. 

Senator GRASSLEY. I’d like to continue on the Second Amendment. The Supreme Court held, as you know, in Heller, that the 

Second Amendment includes an individual right to possess firearms, not collective right conditioned by participation in a militia. 

Yesterday, the Supreme Court ruled in McDonald that the individual right recognized in Heller is applied to the States through 

the Doctrine of Incorporation via the Fourteenth Amendment. 

This is not a comment on the case, but do you personally believe 

that the Second Amendment includes an individual right to possess 

a firearm? 

Solicitor General Kagan. Well, I do think that Heller is the law 

going forward. I have not had, myself, the occasion to delve into the 

history that the court dealt with in Heller, but I have absolutely 

no reason to think that the court’s analysis was incorrect in any 

way. I accept the court’s analysis and will apply it going forward. 

Senator GRASSLEY. So whether you personally believe that Heller 

or the right to bear arms is a collective or an individual right will 

124 

have no bearing in the future, but you don’t want to tell us what 

your own personal belief is? That’s kind of what I’m asking. 

Solicitor General Kagan. Well, my approach in these hearings 

has been not to grade cases, even if I thought I had the wherewithal to grade them, which I’m not sure I do in Heller, just because the case is based so much on history, which I’ve never had 

an occasion to look at. 

I know that the scholarship in this area has suggested that there 

is a very strong view that there is an individual right under the 

Second Amendment, and certainly Justice Scalia’s opinion, which is 

a very thorough opinion for the court, is entitled to all the weight 

that any precedent has going forward. 

Senator GRASSLEY. The court said in Heller, ‘‘It’s always been’’— 

and I guess I would put emphasis upon the word ‘‘always’’—‘‘It’s always been widely understood that the Second Amendment, like the 

First and Fourth Amendments, codified a preexisting right.’’ 

Do you believe that the Second Amendment codified a preexisting 

right or was it a right created by the Constitution? 

Solicitor General Kagan. Senator Grassley, I’ve—I’ve never really 

considered that question, as to whether the Second Amendment 

right—— 

Senator GRASSLEY. Well, it’s basic to our Declaration of Independence that says we are endowed by our Creator with certain individual rights, among them. You know what it says. And we aren’t 

endowed by our government, so the question here is, are we endowed by our Constitution with this right or did it exist before the 

Constitution existed? 

Solicitor General Kagan. Well, Senator Grassley, I do think that 

my responsibility would be to apply the Constitution as understood 

and previously applied by the court, and that means as understood 

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

So I think that the fundamental legal question would be whether— 

that a case would present would be—— 

Senator GRASSLEY. Yes. 

Solicitor General Kagan.—whether the Constitution guarantees 

an individual right to bear arms, and Heller held that it did, and 

that’s good precedent going forward. 

Senator GRASSLEY. I know the Declaration of Independence is 

not the law of the land, but it does express the philosophy of why 

we went to war and why our country exists. You understand, I 

hope, that if we’re endowed by our government with certain rights 

the government can take them away from us, whereas if we possess them ourselves and give them up from time to time to the government to exercise in our stead, then the government can’t take 

away something that’s inherently ours. 

Do you believe that the Second Amendment right to bear arms 

is a fundamental right? 

Solicitor General Kagan. Senator Grassley, I think that that’s 

what the court held in McDonald. Senator GRASSLEY. OK. And you agree with it? 

Solicitor General Kagan. Good precedent going forward. 

Senator GRASSLEY. In response to questions from Senator Leahy 

and Feinstein, you stated that Heller and McDonald are now settled law. Do you agree with the decisions in Heller and McDonald 

125 

as an individual? Not as a Supreme Court justice, but do you believe in them as settled law personally? 

Solicitor General Kagan. I do think that those decisions are settled law and are entitled to all the weight that any precedent of 

the Supreme Court has. 

Senator GRASSLEY. OK. Will you follow stare decisis and uphold 

Heller and McDonald? 

Solicitor General Kagan. I will follow stare decisis with respect 

to Heller and McDonald, as I would with any case. 

Senator GRASSLEY. When you became dean of Harvard Law 

School, you spearheaded a sweeping overhaul of the academic curriculum. One change required students to take an international or 

comparative law course during their first year. You said, ‘‘We’re in 

a new world and internationalization is an example. There’s a recognition that a traditional curriculum does not provide some of 

what lawyers today need to know.’’ I don’t disagree with that statement. You also said that the first year of law school is the ‘‘foundation of legal education’’—those four words are your words—because 

what students learn in that year ‘‘shapes their sense of what the 

law is, its scopes, its limits, and its possibilities.’’ 

I agree that the first year of law school is critical in framing a 

future lawyer. I also believe that taking an international law 

course is worthwhile. However, I’m troubled by your failure to recognize the obvious importance of requiring a class in constitutional 

law. 

I am troubled by your decision to shape a student’s understanding of U.S. constitutional law, if any, through the eyes of foreign legal systems, some of which have little respect for the value 

and principles that we hold so dear in this country. 

Surprisingly, constitutional law is not a first-year requirement at 

Harvard. In fact, it isn’t even a requirement to graduate from the 

law school. Yet, almost all the top law schools across the United 

States require their students to take a constitutional law course to 

graduate, and it’s usually a first-year requirement. 

When you said that ‘‘the traditional curriculum does not provide 

some of what lawyers today need to know’’, are you saying that 

they don’t need to know constitutional law? And why, then, is it 

more important for a law student to take an international law 

course than a course in U.S. constitutional law? In other words, 

which is more important, our Constitution or other nations’ constitutions and laws? 

Solicitor General Kagan. Our constitutional law is absolutely 

basic. When we were doing the curricula review of the law school 

some years ago, we did think about what should be in the first 

year. One of the questions we considered was whether to put some 

constitutional law in the first year. 

Harvard has long taught constitutional law in the second and 

third year since as far back as I can remember; I know that when 

I was a student it was taught in the second and third year. And 

we had a very serious discussion among our faculty as to whether 

to put constitutional law in the first year, as some schools do. Although the two schools I’ve taught at, both Harvard and the University of Chicago, teach constitutional law in the second and third 

year. 

126 

The reason for that is really a sense that students are better 

equipped to understand and to appreciate and to really delve into 

thoroughly all the subtleties and complexities of constitutional law 

issues in the second and third year, and that when you put it in 

the first year it actually short-changes constitutional law because 

you can only give students a very small amount of what they really 

should know. 

So both at Harvard at in the University of Chicago, it’s taught 

in the second and third year where it can be stretched out over a 

longer stretch of time, where students can delve more deeply into 

it, and also study it more broadly. 

Now, we did decide, when we were doing this curricula review— 

we did decide to put some more constitutional law in our first year, 

and the way we did that was through a course that focused on the 

governmental process: legislation, regulation. That course is, in 

part, an introduction to constitutional law because it focuses quite 

a lot on separation of powers issues. 

So, in fact, during that curricula review, although we decided, 

and the constitutional law faculty felt extremely strongly about 

this, the constitutional law primarily be kept in the upper years 

where students can deal with it in a much more sophisticated and 

in-depth way. We did put some constitutional law into the first 

year curriculum, specifically separation of powers issues, in a 

course that we devoted to the governmental process. 

Senator GRASSLEY. But in the process of your explanation, you’re 

justifying that constitutional law is less of a foundation course than 

international law, are you not? 

Solicitor General Kagan. No. Senator Grassley, constitutional law 

is absolutely basic. The Harvard faculty has decided that it’s actually best taught and most thoroughly taught and most broadly 

taught when it is done in the second and third years. Almost all 

students take a very wide set of constitutional law issues, more 

than they could do in the first year, at Harvard. So I think it’s absolutely basic to our understanding of who we are as a people, and 

certainly to the knowledge of lawyers. 

Now, I do think that international law is something that all law 

students today should be familiar with. I know that the students 

who graduate from Harvard, they go out, they do international litigation, they do international arbitrations, they do international 

business transactions, they do—— 

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

Should judges ever look to foreign law for ‘‘good ideas’’ ? Should 

they get inspiration for their decisions from foreign law? 

Solicitor General Kagan. Well, Senator Grassley, I guess I’m in 

favor of good ideas coming from wherever you can get them, so in 

that sense I think for a judge to read a Law Review article or to 

read a book about legal issues or to read the decision of a State 

court, even though there’s no binding effect of that State court, or 

to read the decision of a foreign court, to the extent that you learn 

about how different people might approach and have thought about 

approaching legal issues. But I don’t think that foreign law should 

have independent precedential weight in any but a very, very narrow set of circumstances. 

127 

So I would draw a distinction between looking wherever you can 

find them for good ideas, for just to expand your knowledge of the 

way in which judges approach legal issues, but—but making that 

very separate from using foreign law as precedent or as independent weight. Fundamentally, we have an American Constitution. Our Constitution is our own. 

It’s the text that we have been handed down from generation to 

generation, it’s the precedents that have developed over the course 

of the years. And except with respect to a very limited number of 

issues, that Constitution ought to—the fundamental sources of 

legal support and legal argument for that Constitution ought to be 

American. 

Senator GRASSLEY. Which foreign countries would you suggest 

we look to for good ideas? 

Solicitor General Kagan. Senator Grassley, I guess I would say 

again what I started with, which is, you can look to good ideas 

wherever they come from. You know, there’s a brief that we filed 

recently in the Supreme Court, the Solicitor General’s Office filed 

it. It regarded a Foreign Sovereign Immunities Act case. And in the 

course of that brief, we noted a number of different foreign precedents regarding what other Nations do with respect to the immunity of foreign officials. So, you know, that’s the kind of way in 

which I think having an awareness of what other Nations are 

doing, you know, might be—might be useful. 

Senator GRASSLEY. Some judges, and maybe justices, have said 

that our ‘‘influence in the world’’ should be a factor that a judge 

consider in constitutional interpretation. So do you believe that our 

‘‘influence in the world’’ should be a factor that judges consider in 

constitutional interpretation? 

Solicitor General Kagan. Senator Grassley, I think judges should 

let the President and the Congress worry about our influence on 

the world. I think that that’s not something that judges should pay 

much attention to, should pay any attention to. 

Senator GRASSLEY. If confirmed, would you rely on or cite international foreign law when you decide cases? 

Solicitor General Kagan. Well, Senator Grassley, I guess I think 

it depends. There are some cases in which the citation of foreign 

law or international law might be appropriate. We spoke earlier— 

I forgot with which of the Senators—about the Hamdi opinion. The 

Hamdi opinion is one in which the question was how to interpret 

the authorization for the use of military force. Justice O’Connor, in 

that case—one of the ways that she interpreted that statute was 

by asking about the law of war and what the law of war usually 

provides, what authorities the law of war provides. 

That’s a circumstance in which, in order to interpret a statute 

giving the President various wartime powers, the court thought it 

appropriate to look to what the law of war generally provided. So 

there are a number of circumstances, I think. I mean, another example would be, suppose the President has the power to recognize 

Ambassadors under Article 2. 

There might be a question, well, who counts as an ambassador? 

One way to understand that question is to look at what international law says about who counts as an ambassador, and that 

might or might not be determinative, but it would be, you know, 

128 

possibly something to think about and—and—and something to 

cite. 

Senator GRASSLEY. You wrote in your Oxford thesis, ‘‘Judges will 

have goals. And because this is so, judges will often try to mold and 

steer the law in order to promote certain ethical values and achieve 

certain social ends. Such activity is not necessarily wrong or invalid.’’ Then in addition, you wrote, ‘‘And yet, no court should make 

or justify its decisions solely by reference to the demands of social 

justice. Decisions should be based upon legal principle and reason; 

they should appeal no less to our intellectual than to our ethical 

sense. If a court cannot justify a ruling in terms of legal principle, 

then the court should stay its hand: no judge should hand down a 

decision that cannot plausibly be grounded in principles referable 

to an accepted source of law. If, on the other hand, a court can justify a ruling in terms of legal principle, then that court must make 

every effort to do so. Judicial decisions must be based, above all 

else, on law and reason.’’ 

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

Solicitor General KAGAN. Senator Grassley, all I can say about 

that paper is that it’s—it’s dangerous to write papers about the law 

before you’ve spent a day in law school. So, I wrote that paper 

when—before I spent a day in law school. I was trying to think 

about whether to go to law school and I decided to write a paper 

about law in order to figure out whether I was interested in the 

subject, and I discovered that I was interested in the subject and 

I went to law school, where I found out that I might have been interested in the subject but I didn’t know much about the subject 

at the time. So, I would—I would—I would—I would just ask you 

to—to recognize that I didn’t know a whole lot of law then, and 

there are—I didn’t know a whole lot of law then. 

[Laughter.] 

Senator GRASSLEY. You know, if I accept your answer it’s going 

to spoil a whole 5 minutes I had here. 

[Laughter.] 

Chairman LEAHY. Chuck, go ahead and accept it. 

[Laughter.] 

Senator GRASSLEY. Let me enjoy it anyway, will you? 

[Laughter.] 

Senator GRASSLEY. When you said that, ‘‘No court should make 

or justify its decisions solely by reference to the demands of social 

justice’’, are you saying that it’s acceptable for a court to make and/ 

or justify its decision based upon ‘‘the demands of social justice’’ ? 

And if so, whose ‘‘demands of justice’’ are you referring to? 

Solicitor General KAGAN. Well, the first thing I’m going to do is 

just to ask that what I just said about that paper just be repeated 

for the record. And now I’ll say, no, I don’t think it’s—it’s—it’s appropriate to decide cases based on demands of social justice that 

are external to the law that—that ought to be applied to the case, 

whether that’s constitutional law or statutory law. 

Senator GRASSLEY. OK. Well, let me leave that then and say that 

you learned a lot by going to law school. I’m not sure I say that 

to very many people. 

[Laughter.] 

Senator GRASSLEY. I’m not a lawyer, you know. 

129 

[Laughter.] 

Senator GRASSLEY. Let me go to one of your judicial heroes, 

Judge Barak. Because you don’t have any judicial experience, we 

have no concrete examples of how you decide cases. So we have to 

look elsewhere for clues as to what your judicial philosophy might 

be, including your judicial role models, because we have to assume 

that you agree with their judicial method. 

I am troubled by the fact that you hold up Judge Barak to be 

a judicial role model. You’ve called him your ‘‘judicial hero.’’ Judge 

Barak’s judicial philosophy is undeniably activist and seen by 

many as a brazen abuse of power. He’s been described as having 

‘‘created a degree of judicial power undreamt of by most aggressive 

United State Supreme Court justices.’’ For example, Judge Barak 

believes that ‘‘a judge has a role in the legislative project.’’ Will you 

look to Judge Barak’s judicial method as a model for deciding 

cases? 

Solicitor General KAGAN. I will not, Senator Grassley. I do admire Justice Barak, who is, of course—was for many years the 

chief justice of the State of Israel. He is very often called the ‘‘John 

Marshall of the State of Israel’’ because he was central in creating 

an independent judiciary for Israel and in ensuring that Israel, a 

young nation, a nation threatened from its very beginning in existential ways, and a nation without a written constitution—he was 

central in ensuring that Israel, with all those kinds of liabilities, 

would become a very strong rule of law nation, and that’s why I 

admire Justice Barak, not for his particular judicial philosophy, not 

for any of his particular decisions. 

As you know—I don’t think it’s a secret—I am Jewish. The State 

of Israel has meant a lot to me and my family, and I admire Justice Barak for what he has done for the State of Israel in ensuring 

an independent judiciary. 

Senator GRASSLEY. So then I suppose I can assume that you 

would disagree with his statement that ‘‘a judge has a role in the 

legislative project’’ ? 

Solicitor General KAGAN. I do disagree with that. 

Senator GRASSLEY. OK. 

Solicitor General KAGAN. I think that the legislative role and the 

judicial role are fundamentally different and that judges owe a 

great deal of deference to legislatures and should not—the legislative way of thinking is entirely different from the judicial way of 

thinking, and judges should think of themselves, as I indicated before, only as policing the constitutional boundaries, only as ensuring that the legislature does not overstep its constitutional role by 

interfering with the States or by violating individual rights, but 

certainly the judges should not be doing what the legislature ought 

to be doing, which is making the fundamental policy decisions for 

this Nation. 

Senator GRASSLEY. One last statement he made, and I assume 

you would disagree with this as well. At Harvard Law, he spoke, 

‘‘There are cases . . . in which the judge carries out his role properly by ignoring the prevalent social consensus and becoming a flag 

bearer of a new social consensus.’’ Would there be some time you 

might find that appropriate for the Supreme Court to take a leap 

like that? 

130 

Ms. KAGAN. Well, I’m not exactly sure what he meant by that, 

but if he meant that the court should sort of make decisions that 

the American people—that more appropriately should make, the 

sort of fundamental policy decisions of our society, I don’t agree 

with that. As I said, I was talking about Justice Barak, and my admiration for Justice Barak comes from his important role at the 

State of Israel in ensuring an independent judiciary, and most fundamentally in ensuring that Israel is this strong rule of law nation. 

Senator GRASSLEY. Last question. Do you believe that Judge 

Barak endorses a philosophy of judicial restraint or judicial activism? 

Ms. KAGAN. I think that Justice Barak’s philosophy is—is so different from anything that we would use or would want to use in 

the United States. I mean, for one thing, Israel is a country without any written constitution, a very fundamental difference from 

the United States. So nothing about what I said about Justice 

Barak suggests in any way that I think that his ideas about the 

judge’s role in constitutional interpretation should be transplanted 

to the United States. 

Senator GRASSLEY. Thank you. 

Chairman LEAHY. And I would just put in the record, Justice 

Antonin Scalia said about, as he said his good friend Judge Barak 

when he gave him the American Association of Jewish Lawyer’s 

Pursuit of Justice Board and Justice Scalia expressed his profound 

respect for the man and with Judge Richard Posner, conservative 

luminary, described him by saying if there were a Nobel Prize for 

law, Judge Barak would probably be an early recipient. 

But I would also note on the question of looking at foreign law, 

I was thinking the record, another nominee sent to us and I think 

there is a question, there are other legal issues that come up in 

which I think it is legitimate to look to foreign law and gave some 

examples. It is something useful to look to. That was Justice Alito 

and I just note that parenthetically the Republican voted for him. 

Senator GRASSLEY. Mr. Chairman, I can only assume that with 

your quick comeback that you have a copy of my notebook. 

Chairman LEAHY. You probably wonder why there was a door to 

your shed that was open this morning. 

Senator SESSIONS. I respect the Chairman’s prerogative, but I 

don’t think we should be in the situation where the Chairman rebuts the questioning of each and every witness on this side. I think 

it kind of alters the dynamics. 

I would just say with regard to Justice Scalia’s comments about 

Mr. Barak at that same comment on lightening Kagan, he expressed a clear difference on philosophy about the activist vision 

that Justice Barak has for the role of a judge. 

Judge Posner said his, that Judge Barak’s activism exceeds anything dreamed of by the most activist American judge. I think you 

misquoted and failed to quote completely the nature of those two 

people’s comments. There is a raging debate in this country and no 

one denies it over the extent to which foreign law can be cited to 

define a constitution and laws of this country. 

I would assume that this nominee from her statements would be 

on the side of Justice Ginsburg who favors that and—— 

131 

Chairman LEAHY. I will reclaim. We will have plenty of time to 

debate this. As you know, I gave Senator Grassley extra time and 

then I responded with an equal amount of time. We will put it into 

the record. Of course I would yield to anybody who wants to put 

it into the record just exactly what Justice Alito said and Judge 

Posner said and Judge Scalia said. 

Ms. KAGAN. Senator Leahy, if I might just make one last point. 

I made these remarks about Justice Barak when he came to Harvard Law School to give a speech. 

One of the things that I did as Dean of Law School was I gave 

introductions. I gave introductions to many, many people. If any of 

you had come to Harvard Law School, I would have given you a 

great introduction, too. 

Chairman LEAHY. Thank you. And with that, I yield to, you see, 

Senator Grassley, you’ve got something to look forward to yet. Senator Specter, go ahead. 

Senator SPECTER. Mr. Chairman, thank you to you and Senator 

Sessions on your second or third round. Some of us having had a 

first round. 

Senator SESSIONS. Your effective role as ranking member. 

Senator SPECTER. May we start at 30 minutes on my clock without Senator Sessions’ interjection? 

Madam Solicitor General, I begin with concern for separation of 

powers which is a foundation of the constitution and the concerns 

I have with what the Supreme Court has done really in having a 

consolidation of power. A lot of it going to the court, a lot of it going 

to the executive branch, and it is all coming from the traditional 

power of Congress. 

Before I move into that area, I want to take up a couple of 

points. Senator Sessions has raised the issue about your being a 

progressive, a legal progressive. When he was doing that this 

morning, I was thinking about the Supreme Court’s decision yesterday, incorporating the Second Amendment into the due process 

clause of the Fourteenth Amendment and remember how many objections were raised to the activist liberal Warren Corr for doing 

that. 

I was a prosecutor at the time and the law changed, constitutional law changed, Map in Ohio in ’61 and Gideon in ’63 and Rand 

in ’66 and now we have the five conservatives being progressives 

or activists. 

I was intrigued by Senator Hatch’s questioning you on the citizens in the United case, really an extraordinary case characterized 

by what Justice Stevens had to say. You have Congress constructing a detailed record, 100,000 pages, and Congress has structured McCain Feingold based upon the standard set forth by the 

Supreme Court in Austin versus Michigan Chamber of Commerce. 

Then as Justice Stevens noted, the court pulled the rug out from 

Congress, affirming the constitutionality where it had been in effect for 100 years and as Justice Stevens concluded showing ‘‘great 

disrespect for a equal branch.’’ I will try to make my questions as 

pointed as I can. To the extent that you can answer them briefly, 

I’d appreciate it. We don’t have a whole lot of time. 

What is your thinking on disrespect for the Congress when we 

take a Supreme Court decision and we structure a law based on 

132 

those standards with a customary deference due Congress on fact 

finding? Isn’t that really what Justice Stevens calls disrespect? 

Ms. KAGAN. Well, Senator Specter, as you know, I argued that 

case as you know. I filed briefs on behalf of the United States in 

that case. In those briefs, the government made a similar kind of 

argument that great deference was due to Congress in the creation 

of a quite voluminous—— 

Senator SPECTER. Ms. Kagan, I know what you said. You have 

talked about that a great deal. My question is very pointed. Wasn’t 

that disrespectful? 

Ms. KAGAN. Senator Specter, as I suggested before, when I 

walked up to that podium at Citizens United, I thought we had extremely strong arguments. I was acting as an advocate of course, 

but I thought we had various—— 

Senator SPECTER. I’m going to move on. I know all of that. The 

point that I’m trying to find out from you is what deference you 

would show to Congressional fact finding. Let me move on. 

Ms. KAGAN. May I try again? Because I think that the answer 

to that is great deference to Congressional fact finding. 

Senator SPECTER. Well, was it disrespectful or not? 

Ms. KAGAN. Well, again, I don’t want to characterize what the 

Supreme Court did. 

Senator SPECTER. Well, I want to move on. If you don’t want to 

characterize, I want to ask my next question. 

In the U.S. versus Morrison involving the issue of violence 

against women, we had a mountain of evidence assembled as Justice Souter pointed out in dissent, and the court rejected Congressional findings because of our ‘‘method of reasoning.’’ 

You haven’t crossed the street to the Supreme Court yet, but do 

you think that there is some unique endowment when nominees 

leave this room and walk across the street to have a method of reasoning which is superior to Congressional method of reasoning so 

that a court can disregard voluminous records because of our method of reasoning? 

Ms. KAGAN. Well, to the contrary, Senator Specter. I think it’s 

extremely important for judges to realize that there is a kind of 

reasoning and a kind of development of factual material more particularly that goes on in Congress. 

Senator SPECTER. Then you disagree with Chief Justice 

Rehnquist? 

Ms. KAGAN. I think that it is very important for the courts to 

defer to Congressional fact finding, understanding that the courts 

have no ability to do fact finding, are not, would not legitimately, 

could not legitimately do fact finding. 

Senator SPECTER. Well, I know all of that, but what do you think 

of our method of reasoning? 

Ms. KAGAN. As I said earlier, Senator Specter, I have enormous 

respect for the legislative process. Part of that respect comes from 

working in the White House and working with Congress on a great 

many pieces of legislation. 

Senator SPECTER. I’m going to move onto my next question. Justice Scalia and Lane attacked the standard of congruence in proportionality saying that this court is acting as Congress’s task master. 

133 

The court is checking on Congressional homework to make sure 

that it has identified sufficient constitutional violations to make its 

remedy constitutional and proportional. 

Now, I picked out three instances, Citizens United where Justice 

Stevens has great disrespect and the attack by Rehnquist on our 

method of reasoning and Scalia talking about proportionality and 

congruence. That brings me to the question for you where you have 

been very explicit in the now famous University of Chicago Law 

Review article about dealing with substantive issues. 

We had the standard for determining constitutionality under the 

Commerce Clause from Maryland versus Wirtz, 1968. Justice Harlan who established that standard, ‘‘where we find that the legislators have a rational basis for finding a chosen regulatory scheme 

necessary to the protection of commerce, our investigation is at an 

end.’’ 

In the city of Burnie case, 1997, the court pulled out of thin air 

a new test. The test is whether the legislation is proportionate and 

congruent. That is the test which Justice Scalia so roundly criticized saying it was flabby, that it was an excuse for a judicial legislation. 

Now, would you take Harlan’s test as opposed to the congruence 

and proportionality test? 

Ms. KAGAN. Senator Specter, Justice Scalia is not the only person 

who has been critical of the test. A number of people have noted 

that the test which is of course a test relating to Congress’ power 

to legislate under Section 5 of the Fourteenth Amendment that the 

test has led to some apparently inconsistent results in different 

cases. 

So you have a case like Garrett on the one hand and a case like 

Tennessee versus Lane on the other. 

Senator SPECTER. I know those cases very well. Five to four, 

O’Connor went the other way, but they both used proportionate 

and congruent. 

What I want to know from you is whether you think that is an 

appropriate standard to replace the rational basis test of Wirtz. 

Ms. KAGAN. Well, it is the standard of the court right now. It is 

precedent and it is entitled to weight as precedent. 

Now, as you very well know, Senator Specter, there are times 

when the court decides that precedent is unworkable. It just, it produces a set of chaotic results. 

Senator SPECTER. What was unworkable about the Wirtz test for 

a reasonable basis contrasted with congruent and proportional 

which nobody understands? 

Ms. KAGAN. No, I wasn’t suggesting that the Wirtz test was unworkable. I think that the question going forward, and it is a question. I’m not stating any conclusion on it, but I think that something that Justice Scalia and others are thinking about is whether 

the congruent and proportionality test is workable or whether it 

produces such chaotic results and gives you—— 

Senator SPECTER. So you think it is workable? 

Ms. KAGAN. Senator Specter, I’ve not really delved into the question the way I would want to as a judge, reading all the briefs, listening to the arguments, thinking through the issues from both 

134 

sides. But I do know that the court needs, excuse me, that Congress needs very clear guidance in this area. 

It is not fair to Congress to keep on moving the goal posts. It is 

not fair to say oh well, you know, if you do this this time it will 

be OK but if you do that the next time, it won’t. 

Senator SPECTER. This is an issue we discussed weeks ago. This 

is an issue I raised in a series of letters which I’ll put into the 

record. This is a standard which has been around for a long time. 

You know a lot of law. Senator Grassley established that. 

Is it a satisfactory test? Let me move onto another question. I 

don’t think I’m making too much progress. 

One of the grave concerns which has risen out of the, out of recent confirmation proceedings with Chief Justice Roberts and Justice Alito, and I have spoken about this subject extensively on the 

floor citing how emphatic Chief Justice Roberts and Justice Alito 

were on deferring to Congress. 

It is a legislative function. It is not a judicial function they said. 

If you engage in fact finding, if the court does that, the court is 

transgressing into the Congressional area. Then you have a case 

like Citizens United and others and you have the declarations by 

the Chief Justice of Modesty, you have adopted that standard. His 

more emphatic standard was not to jolt the system. 

Is there any way you could look at Citizens United other than it 

being a tremendous jolt to the system? 

Ms. KAGAN. Senator Specter, again, this is one that as an advocate, I have taken a strong view on which is that it was a jolt to 

the system. There was a great deal of alliance interests involved 

and many states had passed pieces of legislation in reliance upon 

Austin that Congress had passed legislation after accumulating a 

voluminous record. 

Senator SPECTER. Ms. Kagan, you have said that many times 

today about your advocacy in the case. But what I want to know 

is as a perspective Justice, do you consider it a jolt to the system? 

Ms. KAGAN. Senator Specter, it is a little bit difficult to take off 

the advocate’s hat and put on the judge’s hat. One of the things 

that I think is important is that I appreciate the difference between the two and I have been an advocate with respect to Citizens 

United and that’s the way I came to the case, it is the way I approached the case, I hope that I did a good and effective job in it. 

I believed what I was saying. But it’s a different rule and it’s a different thought process than the role and the thought process that 

one would use as a judge. 

Senator SPECTER. Well, what I’m interested in is what you use 

as a judge. But let me move on again. 

There is a lot of concern in the Senate about the value of these 

hearings when we have the kinds of declarations at that table, your 

predecessor and nominees on deference to Congress and then there 

is none given. Not to jolt the system and be modest, there is a 180 

degree U-turn. 

We wonder what we can do about that. Judicial independence is 

the ball work of this republic. Judicial independence gives us the 

rule of law and it is our most highly prized value. 

While the Congress and the executive branch fumbled on segregation for decades, really centuries, the court came along and 

135 

acted on the subject in a progressive way, a very progressive way 

and a very activistic way. 

Nobody challenges it on either side of the aisle today. So we may 

have the highest respect for judicial independence, but what do we 

do when we confirm nominees and they don’t follow through on 

very flat commitments? 

This is not just my view. The view of Richard Posner is very 

tough in his book, How Judges Think. This is what he has to say 

about the subject I’m addressing. ‘‘Less than 2 years after his confirmation, referring to Chief Justice Roberts, he demonstrated by 

his judicial votes and opinions that he aspires to make changes in 

significant areas of constitutional law. The tension between what 

he said at his confirmation hearing and what he is doing as a Justice is a blow to Roberts’ reputation for candor and further displacement of the already debased currency of the testimony of 

nominees at judicial confirmation hearings.’’ 

Now, we are trying to raise the level of that currency. I don’t believe you want to make a comment about that, but if you do, you 

are welcome to. 

Ms. KAGAN. Senator Specter, I assume the good faith of everybody who sits in this chair. There is no reason in my mind to think 

otherwise. 

Senator SPECTER. Madam Solicitor General, I agree with you as 

to good faith. In raising these issues on a series of speeches on the 

floor, I have explicitly said that I’m not challenging the good faith 

of Chief Justice Roberts or Justice Alito. I understand the difference between sitting at that witness plot and deciding a case in 

controversy that comes before the court. 

But that still leaves us with a problem. The best answer that a 

group of senators, and we talk about this with some frequency, can 

come up with is to put some sunlight on the court. 

As I said in my opening statement, the disinfectant that Brandeis talked about, sunlight, the best disinfectant. Well, it’s not 

quite a disinfectant. But I think if the public understood what was 

happening, there would be a strong temptation to stand by what 

had been said in these confirmation hearings. 

I was really glad to hear you say in response to Senator Kohl’s 

questions that you favor television the Supreme Court. I think we 

may be getting closer. I have been at it for more than a decade 

with a whole series of bills. 

Recently the judiciary Committee voted out a bill to televise the 

Supreme Court 13 to 6. We did it a couple of years ago 12 to 6. 

I know it is going to be something the court is going to have to 

come to, perhaps on its own. But the public views are increasing. 

A poll which was released by CSPAN just yesterday shows that 

63 percent of the American people favor televising the court. 

Among the 37 percent who opposed, when they were told that people can only be in the Supreme Court chamber for about 3 minutes, 

only a couple hundred people, 60 percent of those, 37 percent 

thought the court should be televised which brings the total to 

about 85 percent. 

I know we don’t run the court by public opinion polls, but isn’t 

that fairly weighty as to what the America people would like to 

know? 

136 

We talked about a living constitution and about the constitution 

expressing the changing values of our society, as Cardozo said so 

eloquently in Palco. If the people of this country knew that the 

court was deciding all of the cutting edge questions, a woman’s 

right to choose, who lands death penalty cases for juveniles, who 

dies, affirmative action, who gets into college, freedom of speech 

and religion, the American people responded on a poll to Citizens 

United and 85 percent thought it was a terrible decision. Ninety 5 

percent thought that corporations paid contributions to influence 

legislators. 

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

Well, coming back to the court, wouldn’t it be, you have already 

said you’re in favor of televising the court. Wouldn’t televising the 

court and information as to what the court does have an impact on 

the values which are reflected in the American people? 

Ms. KAGAN. I do think, Senator Specter, it would be a good thing 

from many perspectives and I would hope to if I am fortunate 

enough to be confirmed to engage with the other Supreme Court 

Justices about that question. 

I think it is always a good thing when people understand more 

about government rather than less and certainly the Supreme 

Court is an important institution and one that the American citizenry has every right to know about and understand. 

I also think that it would be a good thing for the court itself that 

that greater understanding of the court I think would go down to 

its own advantage. So I think from all perspectives, televising 

would be a good idea. 

Now, I recognize that some people, some justices may have views 

to the contrary and I would want to hear those views and to think 

about those views. But that is sort of my going in thought. 

Senator SPECTER. I will put into the record what the justices 

have had to say. I have questioned almost everybody about this 

subject and I’ve had the opportunity to question all of the people 

on the court now, but there are a lot of those who have been favorably disposed to, or at least have acknowledged its inevitability. 

I reminded them that they all appeared on television this year 

on CPSAN and most of them, many of them have appeared over 

the years selling books and being in a variety of situations. 

Ms. KAGAN. It means I’d have to get my hair done more often, 

Senator Specter. 

Senator SPECTER. Let me commend you on that last comment. I 

say that seriously. You have shown a really admirable sense of 

humor. I think that is really important. 

As Senator Schumer said yesterday, we are looking for somebody 

who can moderate the court and a little humor would do a lot of 

good. 

In the case of Richmond Newspapers versus Virginia, the Supreme Court said that a public trial belongs not only to the accused, but to the public and press as well. 

People now acquire information on court procedures truthfully 

through the print and electronic media. That’s a 1980 decision 

137 

which upheld a newspaper’s rights to be in court and observe a 

trial. 

Isn’t that some pretty solid precedent to say, that is a matter of 

law the court ought to have television to have public access because 

that’s the way most people get their information these days? 

Ms. KAGAN. That’s very interesting, Senator Specter. I had never 

considered the relevance of that case to the televising question. But 

I think certainly the principles in that case, the values in that case 

are about the public’s ability to know how our governmental institutions work, which is what is critical to this issue as well. 

Senator SPECTER. Let me move onto another subject which I consider to be of great importance. That is the agenda of the court, the 

number of cases the court hears. 

In 1886, the court decided 451 cases. In 1987, a little more than 

20 years ago, 146 cases. In 2006, 67. In 2007, 76. In 2008, or 2006, 

68, in 2007, 67, 2008 was 75, 2009, finishing yesterday of 73. The 

court leaves a lot of circuits split, unresolved. 

The court does not hear a great many critical cases. I discussed 

this with you in our meeting several weeks ago and wrote you 

about it as well. That is the case involving the Terror Surveillance 

Program on the Foreign Intelligence Surveillance Act which arguably poses the sharpest conflict between the Congress legislating 

FISA and the President asserting Article 2 powers. 

A Federal court in Detroit found the Terror Surveillance Program unconstitutional. The 6th Circuit ducked it 2:1 with a very 

strong descent on standing grounds which is traditionally a way of 

avoiding a case and the Supreme Court denied cert. 

Congress has the authority to tell the court what cases to take. 

We have legislated giving you discretionary authority. But in many 

cases illustratively the flag burning case and the McCain/Feingold 

and Federal Labor Standards Act, we directed the court to hear the 

case. So I think it is fair to ask what you would have done, not how 

you will decide that case, but whether you would take the case. 

Had you been on the Supreme Court, would you have voted to 

grant cert in the Terror Surveillance Program case? 

Ms. KAGAN. Senator Specter, if I might, just to your first point 

which was the point about the court’s declining docket. I do generally agree with that. I clerked on the court in 1987 which was 

pretty much at the high point of what the court was doing, about 

140 cases a year. 

It is a bit of a mystery why it has declined so precipitously. I do 

agree with you that there do seem to be many circuit conflicts and 

other matters of vital national significance. 

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

Ms. KAGAN. OK. 

Senator SPECTER. And there are only 2 minutes left for me now. 

Ms. KAGAN. Senator Specter, the issue about the TSP and the 

constitutionality of the TSP is I think one of the kinds of issues I 

previously set out three categories where the court might grant 

cert. One which is circuit conflicts, one which is the invalidation of 

an act of Congress and the third is just an issue of some vital national importance. 

138 

In a case where the executive branch is determined or is alleged, 

excuse me, is alleged to be violating some Congressional command, 

it is I think one of the kinds of cases that the court typically should 

take. 

Now, there is in this case the complexity that there is a potential 

jurisdictional bar. Of course the court typically decided—— 

Senator SPECTER. What jurisdictional bar? 

Ms. KAGAN. Well, the question whether somebody has standed. 

So often the court will decline to take a case when there is a significant jurisdictional issue because the court will think well, if we 

take this case, we might hold that we don’t have jurisdiction. 

Senator SPECTER. They can take the case and say they don’t have 

jurisdiction. 

Ms. KAGAN. Yes. You’re exactly right. I’m just suggesting that 

that is often the reason why a court doesn’t take a case. If it 

doesn’t know —— 

Senator SPECTER. I don’t care what is often a reason. Here we 

have a specific case, you had a lot of notice, it’s in concrete. Would 

you have voted to grant cert? 

Ms. KAGAN. Senator Specter, I can just tell you, there was this 

jurisdictional issue. Now, the jurisdictional issue itself was an important one. It was an important one because how is a person going 

to know whether—— 

Senator SPECTER. The 6th Circuit decided there was no standing 

after they heard the case. Well, my time is almost up, 10 seconds. 

I was 13 seconds over last time. 

There are a couple of other cases, the holocaust survivors, the 9/ 

11 survivors victims which I’ll come back to when I have a green 

light. 

Chairman LEAHY. Thank you very much, Senator Specter. Senator Graham? 

Senator GRAHAM. Thank you, Mr. Chairman. 

Chairman LEAHY. Then we will just for planning purposes, and 

Senator Graham, we will go to you. Then we will go to Senator 

Schumer and then we’ll take a short break. Does that work? OK. 

Senator Graham, it is all yours. 

Senator GRAHAM. Thank you. So far have the hearings been 

what you thought they would be? 

Ms. KAGAN. I’m not sure I had, I’m not sure I exactly pictured 

it. 

Senator GRAHAM. Let’s try to go back in time and say you are 

watching these hearings and you are critical of the way the Senate 

conducted these hearings. Are we improving or going backwards? 

And are you doing your part? 

Ms. KAGAN. I think that you have been exercising your constitutional responsibilities extremely well. 

Senator GRAHAM. So it’s all those other guys that suck, not us, 

right? It was all those other witnesses that were too cagey, right? 

All right. Fair enough. 

Now, do you know Greg Craig? 

Ms. KAGAN. I will say one thing, Senator Graham, which is it 

just feels a lot different from here than it felt from back there. 

139 

Senator GRAHAM. I bet it does. It feels a lot different when you’re 

the nominee too, doesn’t it? If it didn’t, I’d really be worried about 

you. You know Greg Craig? 

Ms. KAGAN. I do. 

Senator GRAHAM. He was previously the counsel to the President. 

Senator GRAHAM. Do you know him well? Pretty well? 

Ms. KAGAN. You know, OK. 

Senator GRAHAM. I’m not trying to trick you. I don’t have anything on Greg. He said on May 16th that you are a largely progressive in the mold of Obama himself. Do you agree with that? 

Ms. KAGAN. Senator Graham, you know, in terms of my political 

views, I have been a Democrat all my life. I have worked for two 

Democratic Presidents and that is what my political views are. 

Senator GRAHAM. And would you consider your political views 

progressive? 

Ms. KAGAN. My political views are generally progressive, generally—— 

Senator GRAHAM. Compared to mine, for sure, right? OK, that’s 

fine. There is no harm in that and that makes the hearings a little 

more interesting. I would be shocked if President Obama did not 

pick someone that shared his general view of the law and life and 

so elections have consequences. Do you agree with that? Elections 

do have consequences. 

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

Senator GRAHAM. Right. And one of the consequences is a President gets to fill a nomination for the Supreme Court. That’s a 

power that the President has, right? 

Ms. KAGAN. Yes, sir. 

Senator GRAHAM. So it would be OK from your point of view if 

a conservative president picks someone in the mold of a conservative person? 

Ms. KAGAN. I would expect that. 

Senator GRAHAM. There we go. Good. We’ll remember that. OK. 

We may have a chance to bring those words back. Do you know 

Miguel Estrada? 

Ms. KAGAN. I do. 

Senator GRAHAM. How do you know him? 

Ms. KAGAN. Miguel and I were classmates at Harvard Law 

School, but we were more than classmates at Harvard Law School. 

Harvard Law School has a way of, has required seating in the first 

year. Miguel and I were—— 

Senator GRAHAM. Trust me, I don’t know because I could have 

never gotten there, but I trust you. 

Ms. KAGAN. Miguel and I were required to sit next to each other 

in every single class in the first year. I can tell you Miguel takes 

extraordinary notes. So it’s great. Every time you missed something in class, you could just kind of look over and, but that’s how 

I know Miguel. We have been good friends ever since. 

Senator GRAHAM. What is your general opinion of his legal abilities and his character? 

Ms. KAGAN. I think he is a great lawyer and a great human 

being. 

140 

Senator GRAHAM. He wrote a letter on your behalf. Have you had 

a chance to read it? 

Ms. KAGAN. I did. 

Senator GRAHAM. Can I read part of it? I write in support of 

Elena Kagan’s confirmation as Associate Justice of the Supreme 

Court of the United States. I have known Elena for 27 years. We 

met as first year law students at Harvard where we were assigned 

seats next to each other. So you’re consistent, for all our classes. 

We were later colleagues as editors of the law review and as law 

clerks to different Supreme Court Justices and we have been 

friends since. 

Elena possesses a formidable intellect, an exemplary temperament and a rare ability to disagree with others without being disagreeable. She is calm under fire and mature and deliberate in her 

judgments. 

Elena would also bring to the court a wealth of experience at the 

highest levels of our government and of academics, including teaching at the University of Chicago serving as a Dean of the Harvard 

Law School and experience at the White House as current Solicitor 

General of the United States. 

If such a person who has demonstrated great intellect, high accomplishments and an upright life is not easily confirmable, I fear 

we will have reached a point where no capable person will readily 

accept a nomination for judicial service. 

What do you think about those comments? 

Ms. KAGAN. Senator Graham, I think those comments reflect 

what an extraordinary human being Miguel Estrada is. I was deeply touched when I read that letter, deeply grateful to him of course 

and all the nice things that he said about me I would say back 

about him double. 

Senator GRAHAM. Well, I am going to give you that chance because Miguel Estrada, as most people know, maybe not everyone, 

was nominated by President Bush to the court and he never made 

it. 

I think it is one of the great tragedies for the country that he 

was never able to sit on an appellate court, but that’s the past. I 

do think it reflects well of him that he would say such things about 

you. Quite frankly, I think it reflects well of you that you would 

say such things about him. 

In your opinion, Ms. Kagan, is he qualified to sit as an appellate 

judge? 

Ms. KAGAN. He is qualified to sit an as appellate judge, he is 

qualified to sit as a Supreme Court Justice. 

Senator GRAHAM. Your stock really went up with me. So what I 

would like you to do since you might 1 day be on the court yourself 

is to, if you don’t mind at my request, write a letter to me, short 

or as long as you’d like it about Miguel Estrada. Would you be willing to do that in the next couple of days? 

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

Senator GRAHAM. Thank you. Now, let’s talk about the war. As 

Solicitor General of the United States, you represent the United 

States government before the Supreme Court, right? 

Ms. KAGAN. I do. 

141 

Senator GRAHAM. OK. Let’s shift gears here. And you had to get 

confirmed before this body for that job. Do you remember that confirmation process? 

Ms. KAGAN. I do. 

Senator GRAHAM. Do you remember me? 

Ms. KAGAN. I do remember you. 

Senator GRAHAM. OK. Good. Do you remember when I asked you, 

are we at war, and you said? 

Ms. KAGAN. Yes. 

Senator GRAHAM. OK. Now, that is a bold statement to make but 

an accurate statement. Who are we at war with and what does that 

mean in terms of this Nation’s legal policy? 

Ms. KAGAN. Well, we are at war with Al Qaeda and the Taliban 

and under the AUMF, the President has a wide range of authorities with respect to those groups. 

Senator GRAHAM. Now, under domestic criminal law as we know 

it today, is there any provisions in our domestic criminal law that 

would allow you to hold someone indefinitely without trial? 

Ms. KAGAN. Not that I know of, Senator Graham. 

Senator GRAHAM. And quite frankly there shouldn’t be, should 

there? 

Ms. KAGAN. No, sir. 

Senator GRAHAM. And under the law—— 

Ms. KAGAN. I feel as though we are doing this again. 

Senator GRAHAM. We are. 

Ms. KAGAN. We are sort of doing an instant replay. 

Senator GRAHAM. Yes, we are going to do this again and I hope 

we get the same answers. That will help you a lot if we do. If we 

don’t, we’ll have a problem. 

Under the law of armed conflict, is it permissible to hold an 

enemy combatant as long as the holding force deems them to be 

dangerous? 

Ms. KAGAN. Under the traditional law of war, it is permissible 

to hold an enemy combatant until the end of hostilities. The idea 

behind that is that the enemy combatant not be enabled to return 

to the battlefield. 

Senator GRAHAM. That’s a good summary. The problem with this 

war is there will never be a definable end to hostilities, will there? 

Ms. KAGAN. That is exactly the problem, Senator Graham. 

Hamdi very briefly discussed this problem, the court in Hamdi suggesting that perhaps if this war was so different from the traditional law of war that there might need to be alternative procedures to put in place. 

For example, one could imagine a system in which because of the 

duration of this war, it was necessary to ensure that enemy combatants continue in dangerousness. That is a question that I think 

has not been answered by the court. 

Senator GRAHAM. Do you believe it would serve this country well 

if the Congress tried to work with the executive branch to provide 

answers to that question and others? 

Ms. KAGAN. Senator Graham, let me take the question and make 

it into a legal question because I think it is directly relevant under 

the Youngstown analysis whether Congress and the Presidents do 

work together. 

142 

Senator GRAHAM. When the two are together, the courts find 

more power. 

Ms. KAGAN. That’s correct. 

Senator GRAHAM. Now, you are still Solicitor General of the 

United States. From that point of view, would you urge this Congress to work with the executive branch to create statutes to help 

the courts better answer these questions? 

Ms. KAGAN. Senator Graham, I think I don’t want to talk as Solicitor General as to legal policy here. 

Senator GRAHAM. OK. 

Ms. KAGAN. But I will say as to the legal matter that it makes 

a difference. Whether Congress and the President work together, 

that courts should take note of that, that courts should, when that 

occurs, the action is at, ought to be given the most deference and 

that there is a reason for that. It is because the courts are basically 

saying Congress and the President have come together, Congress 

and the President have agreed upon a policy jointly and there 

should be deference in those circumstances. 

Senator GRAHAM. Are you familiar with Judge Lamberth and 

Judge Hogan? 

Ms. KAGAN. I don’t know either of them. I know who they are. 

Senator GRAHAM. Fair enough. They are DC judges, Federal District Court judges who are hearing a habius of bills from GTMO 

detainees. I will provide you some of the comments they made. 

It is unfortunate, according to Judge Hogan, it is unfortunate in 

my view that the legislative branch of the government and the executive branch have not moved more strongly to provide uniform, 

clear rules and laws for handling these cases. 

I have got other quotes that I will provide you. What I’m trying 

to do here is lay the foundation for the idea that our laws that exist 

today do not recognize the dilemma the country faces. The administration has determined that 48 people held at GTMO are too dangerous to let go but are not going to be subject to normal criminal 

proceedings. 

In other words, we believe the evidence suggests they are members of Al Qaeda, they have all gone before a habius judge and the 

judge agreed, but they are never going to be tried in a traditional 

fashion. 

Is the administration’s decision in your opinion consistent with 

the power under the law of war to do that? 

Ms. KAGAN. Well, as Solicitor General, Senator Graham, I have 

argued the position that this is fully legal. 

Senator GRAHAM. And I think very well, very well. You have argued for the proposition that this President and all future Presidents has the ability to detain an enemy combatant with sufficient 

process if the executive branch believes that they are dangerous 

and not require them to go through a normal criminal trial. 

What we have to do is find out what that process would be, this 

hybrid system. You argued against expanding habius rights to detainees held in Afghanistan, is that correct? 

Ms. KAGAN. I did, Senator Graham. 

Senator GRAHAM. As a matter of fact, you won. 

Ms. KAGAN. In the—Circuit. 

143 

Senator GRAHAM. And you probably won’t be able to hear that 

case if it comes to the Supreme Court, will you? 

Ms. KAGAN. Well, that’s correct. 

Senator GRAHAM. Well, that’s good because we can talk openly 

about it. 

Ms. KAGAN. If I could just say, in general the Solicitor General 

only signs her name to briefs in the Supreme Court, authorizes appeal but does not sign appellate briefs. 

I determined that I should be the counsel of record on that brief 

because I thought that the United States’ interests were so strong 

in that case based on what the Department of Defense told our office. 

Senator GRAHAM. Right. I want every conservative legal scholar 

and commentator to know that you did an excellent job in my view 

of representing the United States when it came to that case. 

You said previously that the first person you have to convince 

when you submit a brief or take a case on is yourself, is that correct? 

Ms. KAGAN. Well, I said that in reference to the cases that I argued specifically. Of course when I write briefs, I write from, or 

when I sign briefs, when I am counsel of record on briefs, I am taking the position of the United States, that I am representing the 

position that I believe and that our office believes is most consistent with the long-term interests of the United States government. 

Senator GRAHAM. Have you convinced yourself as well as representing the United States government it would be a disaster for 

the war effort if Federal judges could intervene and require the release of people in detention in Afghanistan under military control? 

Ms. KAGAN. Senator Graham, I chose to put my name on that 

brief, as I said, which is a very, very rare thing in the appellate 

courts because I believe that they were very significant—— 

Senator GRAHAM. Well, let me read a quote. ‘‘The Federal court 

should be come the vehicle by which the executive is forced to 

choose between two intolerable options, submitting to intrusive and 

harmful discovery of releasing dangerous detainee.’’ Do you stand 

by that statement? 

Ms. KAGAN. Senator Graham, can I ask whether that statement 

comes from that brief? 

Senator GRAHAM. Yes, it does. 

Ms. KAGAN. That statement is my best understanding of the very 

significant interests of the United States government in that case 

which we tried forcefully to present to the court. As you said before, the DC circuit, a very mixed panel of the DC circuit upheld 

our argument. 

Senator GRAHAM. You also said the courts of the United States 

have never entertained habius lawsuits filed by enemy forces detained in war zones. If courts are ever to take that radical step, 

they should do so only with the explicit blessing by statute. Do you 

stand by that? 

Ms. KAGAN. Anything that is in that brief, I stand by as the appropriate position of the United States government. 

Senator GRAHAM. Fair enough. The brief needs to be read by 

your supporters and your critics because some of your supporters 

144 

are going to be on—and some of your critics may like what is in 

there. 

I am here to say from my point of view that this area of your 

legal life, you represented the United States well and I hope that 

Congress will rise to the occasion working with the executive to 

provide some clarity so that we will be able to find a way to fight 

this war within our value system and recognize the difference between fighting war and fighting crime. 

The battlefield you told me during our previous discussions that 

the battlefield in this war is the entire world, that if someone were 

caught in the Philippines who was a financier of Al Qaeda and they 

were captured in the Philippines, they would be subject to enemy 

combatant determination because the whole world is the battlefield. Do you still agree with that? 

Ms. KAGAN. Senator, I was speaking there as a legal policy matter representing the position of the Obama administration. That’s 

obviously a very different role as the advocate role that I play is 

also a different role. 

Senator GRAHAM. Let’s just stop there. When you were an advocate, you had no problem advocating that position. 

Ms. KAGAN. There are certain parts of that that I think that we 

have not addressed in the United States government. So the 

United States government has argued that the battlefield extends 

beyond Iraq and Afghanistan. 

Senator GRAHAM. Attorney General Holder said that the battlefield is the hearts, the minds and wherever Al Qaeda may reside. 

Do you believe that is a consistent statement with Obama policy? 

Ms. KAGAN. Senator Graham, when I was here before, you asked 

me if I agreed with the Attorney General and I said that it would 

be bad to disagree with the Attorney General given my position. I 

am still the Solicitor General and I still agree with the Attorney 

General. 

Senator GRAHAM. But you strike me as the kind of person that 

if you thought he was wrong you’d say so even though it may cost 

you your job. Am I right in assuming that? 

Ms. KAGAN. I certainly would tell him if I thought he was wrong. 

Senator GRAHAM. And I think you would tell me if you thought 

it was wrong, so I’m going to assume you thought he was right because that’s the kind of person you are. I quite frankly think he’s 

right. 

Now, as we move forward and deal with law of war issues, 

Christmas day bomber. Where are you at on Christmas Day? 

Ms. KAGAN. Senator Graham, that is an undecided legal issue. 

Well, I suppose I should ask exactly what you mean by that. I’m 

assuming that the question you mean is whether a person who is 

apprehended in the United States is—— 

Senator GRAHAM. No, I just asked you where you were at on 

Christmas. 

Ms. KAGAN. You know, like all Jews, I was probably at a Chinese 

restaurant. 

Senator GRAHAM. Great answer. Great answer. 

Chairman LEAHY. I could almost see that one coming. 

Senator GRAHAM. Me, too. So you were celebrating—— 

Chairman LEAHY. Senator Schumer explained this to me earlier. 

145 

Senator GRAHAM. Yes, he did. 

Senator SCHUMER. No other restaurants are open. 

Senator GRAHAM. Right. You were with your family on Christmas 

Day at a Chinese restaurant? 

Ms. KAGAN. Yes, sir. 

Senator GRAHAM. OK. That’s great. That’s what Hanukkah and 

Christmas is all about. 

Now, what happened in Detroit on Christmas Day? Can you recall? What was so unnerving about that day? 

Ms. KAGAN. Well, that there was a failed but only just failed terrorist incident. 

Senator GRAHAM. We were lucky as a nation that a bunch of people didn’t get killed on Christmas day or in the middle of Hanukkah or whatever holiday it may be. We are lucky that bomb didn’t 

go off. 

Ms. KAGAN. Senator Graham, it seemed a close thing. I don’t 

know more than I read in the newspapers about that incident. 

Senator GRAHAM. I understand. 

Ms. KAGAN. I was not involved in any of the discussions about 

what to do on that day. 

Senator GRAHAM. The Times Square incident, do you recall that, 

right? 

Ms. KAGAN. Yes, sir. 

Senator GRAHAM. We were lucky that van didn’t explode. 

Ms. KAGAN. Every time one of these things happens, it is extremely unnerving. It makes us aware of the need to take efforts 

to make sure that such a thing never happens. 

Senator GRAHAM. Tell me about Miranda warnings. Do we need 

to read soldiers, do soldiers need to read people their rights captured in the battlefield in Afghanistan? 

Ms. KAGAN. Senator, the way Miranda warnings would come up 

is of course only with respect to the admissibility of evidence in a 

criminal court. So to the extent that we are talking about a battlefield capture and not a criminal trial, an Article 3 criminal trial, 

the Miranda issue would never come up. 

Senator GRAHAM. So you agree with me that in war you don’t 

have to read the enemy their rights because you are not talking 

about fighting crime, you are talking about fighting a war, is that 

correct? 

Ms. KAGAN. Well, the Miranda issue is only applicable in Article 

3 courts as a matter of criminal law. 

Senator GRAHAM. OK. If you catch a person in Afghanistan—— 

Ms. KAGAN. I should correct that. I should correct that because 

I think that the question of whether Miranda is applicable in military commissions has not been decided. 

Senator GRAHAM. Right. Well, you have Article 31 rights which 

are the same thing, but that is yet to be decided. But under general 

rule of war, you don’t read the enemy the Article 31 rights when 

you’re in a fire fight. 

For these hearings to be meaningful and instructive, I think it 

is good for us to have an open discussion about when we are fighting a war and when we are fighting a crime, what is the consequences of criminalizing this war. 

146 

My fear is that if we criminalize this war, we’re going to get 

Americans killed for no higher purpose and that the idea that you 

would take someone off an airplane or in Times Square and start 

reading them their Miranda rights within a few hours is criminalizing the war because the reason we are capturing these people initially is to find out what they know about the enemy. 

Do you have any concerns that reading Miranda rights to suspected terrorists caught in the United States would impede our 

ability to collect intelligence? 

Ms. KAGAN. Senator Graham, I have never dealt with that question as Solicitor General. 

Senator GRAHAM. Just as Elena Kagan. 

Ms. KAGAN. Senator Graham, I feel as though—— 

Senator GRAHAM. Harvard Law School dean. 

Ms. KAGAN. I’m a part of this administration and I think that, 

you know, I should let the Attorney General—— 

Senator GRAHAM. Well, let me tell you the administration generally speaking has been pretty good to work with on this issue. 

We have had discussions about having exceptions to Mirandas so 

that we don’t lose intelligence gathering opportunities and not 

criminalize the war. 

What does the public safety exception mean when it comes to Miranda? What’s your understanding? 

Ms. KAGAN. The public safety exception which was, comes from 

the Quarrels case, it is right now I think a limited exception. It enables—— 

Senator GRAHAM. Very limited. 

Ms. KAGAN. That’s right. 

Senator GRAHAM. Very undefined. 

Ms. KAGAN. It enables the police essentially to be able to question to find the gun, you know, to find something that might pose 

an eminent risk of public safety. 

Senator GRAHAM. Now, let’s stop there. So the public safety exception is about protecting the law enforcement officers and maybe 

securing the crime scene. 

What I’m trying to illustrate is that the public safety exception 

I’m looking for would allow the intelligence community to find out 

about where this guy came from. Where did you train? Is there another attack coming? 

Right now the law is very, do you think it would be in the United 

States’ best interest to have clear guidance to the intelligence community, give them the tools and the flexibility when they capture 

one of these guys whether it be in Times Square or Detroit to find 

out without having to do anything else at the moment what is the 

next attack? What do you know about future attacks? Where did 

you train? 

Would that make us a more secure nation if our intelligence and 

law enforcement community had those tools? In your opinion. 

Ms. KAGAN. Well, of course it’s a question that might come before 

the court in some guise as to whether the public safety exception 

should apply. 

Senator GRAHAM. I’m just talking about being an American now. 

Forget about the courts. As an American, a patriotic American, liberal or conservative, don’t you believe that we would all be better 

147 

off if we had the opportunity within our values, humanely without 

torture, to hold a terror suspect and gather intelligence before we 

did anything else because another attack may be coming? 

Not that a gun is in the next room, but somebody else may be 

coming our way. Don’t you think as an average, everyday citizen 

that would make us a safer nation? 

Ms. KAGAN. I suppose on this one, Senator Graham, that I’m reluctant to say how I would think about the question as an average, 

everyday citizen because I might have to think about the question 

as a judge and that would be a different way of thinking about the 

question. 

Senator GRAHAM. OK. Let’s talk about what a judge may think 

about here. If we applied domestic criminal law to the war on terror without any hybrid mix, would that be a good thing? 

I mean, if we took the war on terror and just made it a crime, 

would we be limiting our ability to defend ourselves? 

Ms. KAGAN. Well, as we discussed before, Senator Graham, I 

mean, the administration of which I’m a part—— 

Senator GRAHAM. Here is what I don’t understand is because you 

said to me previously that you understand why this administration 

are holding 48 people without trial because they are enemy combatants and that makes sense to you. 

Ms. KAGAN. Yes. 

Senator GRAHAM. What I’m trying to extrapolate is if we took 

other parts of criminal law and applied it to the war on terror, 

would that create a problem for this country? 

Ms. KAGAN. I guess I feel—— 

Senator GRAHAM. Like Miranda warnings. 

Ms. KAGAN. Yes. I mean, the question of intention of enemy combatants is one that I have dealt with as Solicitor General, it is one 

that I have argued as Solicitor General. This is a question that I 

have not dealt with and I am hesitant to make any comments in 

a personal view or in a policy view given that these questions I 

think are likely to come before the court. 

The question of the good faith exception to Miranda, how it applies to terrorism cases is I think quite likely to get to the court. 

Senator GRAHAM. Is it fair to say that the letter you wrote to me 

about the Detainee Treatment Act Amendment, I think you call the 

Graham/Kyl proposal that it would lead to a dictatorship or something? 

Ms. KAGAN. No, I didn’t say that. 

Senator GRAHAM. What did you say? 

Ms. KAGAN. I—— 

Senator GRAHAM. I’m not easily offended. You could say that. It 

would probably help me in South Carolina. It wouldn’t hurt that 

the Harvard Law School dean was mad at Lindsey. 

But you did, you wrote a letter that was pretty challenging. 

What did you say in the letter? 

Ms. KAGAN. It was a challenging letter. I think I said that we 

hold dictatorships to high standards and we should hold ourselves 

to even higher ones. 

But I did criticize the initial Graham amendment for—— 

148 

Senator GRAHAM. And that is absolutely OK. It is absolutely OK. 

You did criticize the original Graham amendment and I didn’t take 

it personally. 

Ms. KAGAN. Well, I’m glad to hear that. 

Senator GRAHAM. But you did say that’s what dictatorships do 

and I thought that was a little over the top, but the difference between the Graham/Kyl amendment and the amendment that 

passed by 84 votes wasn’t a whole, what’s the difference between 

what I proposed and what passed? 

Ms. KAGAN. Right. Well, I think one difference was that military 

commission adjudications now receive DC circuit review. In fact, 

the letter we wrote was about that, was saying that military commission adjudication —— 

Senator GRAHAM. Now, did you assume that we precluded final 

verdicts in military commissions from Article 3 review? 

Ms. KAGAN. Well, my initial understanding of the initial Graham 

amendment—— 

Senator GRAHAM. We didn’t, but you could have had that understanding, but I can assure you that wasn’t my goal. 

The point I’m trying to make here is that the Military Commission Act of 2009 has been a work in progress for many, many 

years. We are trying to as a nation get this right. 

As Solicitor General, do you have confidence in our military commissions that we have set up? Do you find that they are a fair form 

to try people in? 

Ms. KAGAN. Senator Graham, I really haven’t had any exposure 

to the military commissions as yet. Of course there has been no 

military commission proceedings. 

Senator GRAHAM. Have you had exposure to military lawyers? 

Ms. KAGAN. I think that they are absolutely top notch. 

Senator GRAHAM. What if I told you that the same lawyers who 

will be doing the commissions are also the same lawyers, judges 

and jurors that would try our own troops. Would that make you 

feel better? 

Ms. KAGAN. Well, I do think that the military lawyers with 

whom I have had the pleasure and honor to work as Solicitor General are stunningly good. 

Senator GRAHAM. So is it fair to say that Elena Kagan, whatever 

day it is in 2010 doesn’t believe that military commissions are a 

miscarriage of justice or unconstitutional? Strike unconstitutional. 

Do you believe that this country submitting a suspected terrorist 

to military commission trial is within our value system? 

Ms. KAGAN. Senator Graham, on the part of an administration 

that clearly has stated that some people—— 

Senator GRAHAM. Do you personally feel comfortable with that? 

Ms. KAGAN. I do. I wouldn’t be in this administration if I didn’t. 

Senator GRAHAM. Thank you. Thank you. 

Chairman LEAHY. Thank you, Senator Graham. Before I go to 

Senator Schumer, I should know when Senator Schumer is finished 

his questions, we will have about a 10-minute break. 

Senator Schumer. 

Senator SCHUMER. Thank you, Mr. Chairman and thank you, Solicitor General. I think you’re doing just great. I think the hearings 

are showing the American people that you are the kind of person 

149 

many of us believe you to be, thoughtful and practical and moderate. You try to understand and appreciate many differing points 

of view but you have fidelity to law above all and I think they are 

learning too that you are a very nice person with a pretty good 

sense of humor. 

You know, there was a recent study I read that showed when he 

sits on the Supreme Court bench hearing cases, Justice Scalia gets 

the most laughs. 

Ms. KAGAN. He is a funny man. 

Senator SCHUMER. Yes. If you get there, and I believe you will, 

you are going to give him a run for his money. 

Anyway, I’d like to ask you a few questions first about modesty, 

something that we’ve talked about in this and other nominations. 

That is a very important quality to me and I was really pleased 

to see you speak about modesty in your opening statement. I 

thought you not only spoke eloquently about the importance of 

modesty, but you sort of embodied modesty in your whole demeanor and way and have done that today. So I think people don’t 

believe it is just talk. 

You said you believed it was critical for judges to be deferential 

to the decisions of the people and their elected representatives. I 

agree. While I think just about anyone can and everyone does pay 

lip service to the notion of judicial modesty, it can mean different 

things to different people. 

So just tell us in general a little bit about what you mean by the 

idea of judicial modesty. 

Ms. KAGAN. Senator Schumer, I think there are three components to it. The first is the one that you mentioned which is deference to the political branches. To Congress, to the President, to 

the states. An understanding that they are looking after the people’s business, that they are acting in good faith, that they too take 

constitutional oaths, that they ought to be the policymakers for the 

Nation and that the courts, the courts have an important role to 

play, but it is a limited role. It is essentially sort of policing the 

boundaries and making sure that Congress doesn’t overstep its 

role, doesn’t violate individual rights or interfere with other parts 

of the governmental system, but that even in doing that, even in 

policing those boundaries the courts should look at Congress and 

the President as, it should give them a lot of deference and should 

be hesitant and reluctant to interfere and should make sure that 

they understand what Congress is doing and why Congress is doing 

it before they do. 

So to sort of give Congress a good deal of the benefit of the doubt 

to look at those Congressional findings that Senator Specter was 

asking me about, to really explore what Congress thought it was 

doing. There will be some times, there will be some times where 

the courts will have to say no, Congress has overstepped. Congress 

has violated individual rights or Congress has somehow interfered 

with state prerogatives perhaps. 

But those times, the court ought to feel hesitant about doing that 

and ought to make sure that it has gotten it right. So that’s the 

first thing. 

The second thing is respect for precedent. I think precedent is extraordinarily important in our law. It is important because it leads 

150 

to predictability and stability in the law, but it is important also 

precedent itself is a kind of measure of humility. 

It is a way of current justices saying even if I think these past 

judges got it wrong, I’m going to be hesitant about saying that. I’m 

going to doubt myself. I’m going to think that this law that has 

built up over the years by prior judges has real wisdom to it. Even 

if I can’t quite see that wisdom right now, I’m going to be hesitant 

about saying that it doesn’t exist. So it is a doctrine really of humility, of judicial humility. 

It is also a doctrine of constraint. It constrains judges and makes 

sure that judges warrant doing, importing anything inappropriate 

into the decisionmaking process. So the judges aren’t taking their 

personal views and their personal commitments and their political 

commitments and using those in the decisionmaking process. 

If your precedent binds judges, and that is a very good thing for 

the legal system for that reason, too. 

I suppose the third part of judicial modesty is a set of rules really 

about deciding cases. It is making sure that you have a case before 

you that you’re not deciding an abstract legal issue. 

It is taking one case at a time, not really thinking down the road 

how this, if I decide this case this way, maybe another case can be 

decided that way. Really just focusing on the case before you and 

the question before you. 

It is avoiding constitutional questions if you can in favor of statutory questions. It is generally making sure that you are deciding 

questions on the narrowest possible grounds rather than on broader ones. So all of those techniques of judging, if you will, I mean, 

some people have called these passive virtues I think are very important. 

Senator SCHUMER. Well, I think that is a great answer. It is almost a textbook like answer and I hope the Supreme Court continues to follow it. Or follows it. 

Let me just ask you this. Would your own personal views ever 

play a part in interpreting the statute given your definition of modesty? 

Ms. KAGAN. It would not, Senator Schumer. I mean, with respect 

to a statute, the only question is Congress’ intent and that’s what 

the court should be looking at, what Congress wanted the statute 

to apply to, how Congress wanted the statute to apply. 

Now, sometimes that won’t be altogether clear. Sometimes Congress leaves ambiguities or uncertainties of various kinds and it is 

the court’s job to try to clarify those ambiguities and to try to remove those uncertainties, but it should all be done with a question 

of what is Congress intending here? 

To the extent that the text suggests that, all well and good. To 

the extent it doesn’t, I think a judge should look to other sources, 

should look to the structure of the statute, should look to the history of the statute in order to determine Congress’ will. 

Senator SCHUMER. Right. And just one final question. Let’s just 

posit for the moment the term activism, judicial activism is bandied 

around a lot. But it is sort of the opposite of modesty as you defined it and I think as most define it. 

Just let me, it is my view that activism so to speak which means 

beyond, going beyond the bounds of modesty that you have outlined 

151 

can come from the right or from the left. It can probably even come 

from the middle in certain ways. Do you agree with that? 

Ms. KAGAN. I think activism does not have a party. 

Senator SCHUMER. Or a philosophy. 

Ms. KAGAN. Or a philosophy. 

Senator SCHUMER. There can be liberal activists and conservative 

activists. 

Ms. KAGAN. I think that that’s right. 

Senator SCHUMER. OK. All right. Let’s go on now to pragmatism, 

a second quality that you exhibit and talked about. To me at least 

I find it refreshing about your nomination is that you don’t come 

straight from the judicial monastery, that you have real hands on 

practical experience because I think some of the times certainly 

speaking for me and I think most people think sometimes judges 

impose decisions from on high without any sort of thinking or not 

enough thinking as to the practical effects on either a business or 

a person or a government or whatever. 

To me, the practical experience you had is almost the best one 

can have in terms of being a good judge because you have had to 

deal with the law in a very practical way. What I mean there is 

your tenure as Dean of Harvard Law School. You managed a budget of over 160 million dollars, dealt with hundreds of employees, 

had a very fractious legal faculty who probably spanned the kind 

of judicial philosophies that you’ll find should you get to the Supreme Court. 

Your job as Dean, I’m not saying as Justice, was to sort of bring 

them together and create a better tone and better atmosphere 

which you did, which most observers found, you know, they were 

in awe almost of what you did there given how bad it was before 

and how smooth it was afterwards. 

Just tell us a little bit about the challenges that you had and 

what you learned from them as Dean. Practical stuff. 

Ms. KAGAN. Well, mostly I learned, Senator Schumer, that you 

can never do too much listening to people because it turns out you 

learn a lot by listening. You said that the faculty was fractious and 

you kind of portrayed them in a negative light, but in truth I loved 

my faculty and I thought that my faculty was sort of endlessly generous to me and good spirited in terms of the things that they did 

for the school. 

I think that that was so in part because people respected that 

I listened to people, that I was willing to change my mind if they 

could convince me that I was wrong, and sometimes I was wrong. 

I got a lot of good ideas from my faculty along the way. 

So I suppose the best thing I learned by being Dean of that 

school was just the value of listening hard and realizing that you 

don’t start by knowing everything. 

Senator SCHUMER. And how were you so successful in bringing 

people of different views who were pretty fractious when you 

walked in? Because I understand it was hard to get faculty appointments because one part of the faculty would always object to 

the other. 

How did you get to bring them together into a body that was at 

least from all reports, much more cohesive and happier as a result 

of your tenure there? 

152 

Ms. KAGAN. Well, Senator Schumer, I think everybody did it. I 

don’t think I did it. I think everybody did it. I think all I did was 

try to encourage people to work together and I think that once that 

started happening, people just understood that working together 

brought great benefits to the institution. It was a little bit of a kind 

of virtuous circle, you know, because once it started, it just kept on 

going. The ball kept on rolling because people saw some of the good 

things that it brought. 

Senator SCHUMER. This relates to something I have given a lot 

of thought about and still haven’t come to any firm conclusions. 

What is the role of pragmatism in judging in this sense? This is 

a key question I have wrestled with. What happens when the law 

seems to lead to a result that just doesn’t make any sense? I have 

occasionally read decisions at every level. They could be local level 

and individual stuff. 

The judge seems to be following the law and then the actual result just in the real world doesn’t make any sense. Do judges have 

a responsibility to interpret a statute in a way to make sense when 

it is actually applied? 

Ms. KAGAN. Well, Senator Schumer, I think that if the text of a 

statute is clear, it would be wrong for a court to say well, the text 

says X but I don’t think X makes sense, so I’ll choose Y. 

I don’t think that a court should do that. If the text says X, the 

text is the best evidence of Congress’ intent and the text might say 

X for a variety of reasons. Even if you think gee, what sense does 

that make and how is that consistent with the broad purposes of 

the statute? 

In fact, the legislative process is a messy thing and people make 

compromises along the way and a legislative text is the result of 

all that deliberation and all those compromises. 

To the extent that the text says something clear about a statute, 

the court should stick with that and stick with it even in the 

court’s view that is not what makes sense. 

Now, sometimes there is ambiguity in statutes and then the 

question is well, what do you do? How do you clarify that ambiguity? 

One of the things to do is to look to Congress’ purposes in enacting a statute and try to figure out, you know, if Congress knew 

that this result would happen, is that result consistent with Congress’ purpose or not? That’s a very sensible thing for a court to 

do because in the absence of textual guidance, and maybe in the 

absence of any structural guidance, one, you know, good and appropriate approach is to look to the purposes of the statute and to try 

to figure out which interpretation of the statute is more consistent 

with that Congressional purpose. 

One way to do that is to say well, what would that interpretation 

of the statue actually do in the world and is that consistent with 

what Congress thought ought to be done. 

Senator SCHUMER. Right. OK. Let me go to a couple of specific 

cases. One case, recent case was Gross versus FBL. There the court 

said that in an age discrimination case, the statute passed by Congress requires the plaintiff to prove that the employer’s only motive 

was discriminatory, even though for years courts have recognized 

153 

that only employers have access to the evidence of their own motivation. 

It almost said to a plaintiff who thought that he or she was discriminated against, we’re going to sort of put you in a Catch 22. 

You have got to prove that the only motive was discriminatory and 

you can’t, which seems to me just in line for what you said. Congress never would have intended that because it is impractical and 

the law had some I think latitude in terms of interpretation. 

I’m not going to ask you to comment because it is a specific case, 

but at least I’d like to throw that one out. 

The second one which I do want to talk about a little bit is Citizens United which has been talked about here before. It is a confounding and deeply troubling opinion for a whole lot of reasons. 

I’m going to start with some basics of First Amendment law. 

My colleagues and I may have some philosophical differences 

about campaign finance. While I disagree with Buckley v. Voleo, it 

certainly undertook a lengthy First Amendment analysis. Yet as 

we know, no amendment is absolute. The First Amendment isn’t 

absolute and there are countless cases related to liable, related to 

imminent danger, you can’t scream fire in a, falsely scream fire in 

a crowded theater. So there are limitations on the First Amendment like there are limitations on every amendment. 

The Heller case recently in a case that was decided yesterday 

certainly said there could be limitations on the Second Amendment 

even if it applied to the states in the way the courts did. 

Do you agree with that principle that no amendment is absolute 

and there are reasonable limitations, balance tests on every 

amendment? 

Ms. KAGAN. The First Amendment has not been thought to be 

absolute. I think that the last Justice who thought that was maybe 

Justice Black. I think almost all Justices have understood. 

Senator SCHUMER. Right. He wrote a lot of descents. 

Ms. KAGAN. You know, you yell fire in a crowded theater or you 

yell into a cardiac victim’s ear, nobody is going to protect that 

under the First Amendment. 

Senator SCHUMER. Right. So then the correct question is when is 

law tailored enough to address a specific action and how strong is 

the government interest behind that law? 

In the McCain/Feingold law, Congress as you talked about a little bit some of my colleagues here, studied and considered the effect that special interest money had on campaigns. Congress came 

to the common sense conclusion that these expenditures had a poisonous effect on our democracy. 

But the five Justice to majority ignored Congress’ judgment. We 

won’t go into the fact that they went out of their way to find the 

case, and undermined Congress’ powers to pass laws based on Congress’ collective judgments. 

I think some of my colleagues on the other side of the aisle 

missed the mark of what McCain/Feingold, what was at issue 

about McCain/Feingold in Citizens United. With respect to my good 

friend Orrin Hatch’s earlier points, it wasn’t about banning books 

or about restricting who can speak, it was about Congress making 

its best judgment on limits on how much can be spent and what 

are the appropriate limits to protect our electoral process. 

154 

Congress tried to tailor its approach with respect to speakers and 

speech and McCain/Feingold sets limits very high up. It’s not about 

publishing a pamphlet. It is about putting an ad on for the 4,111th 

time and is that the same right as saying it initially. 

Corporations, let’s remember, corporations always, could always 

spend money on politics. They had to do it through packs, Congress 

made the determination that unlimited spending by corporations 

could create corruption and the appearance of corruption. 

So I don’t agree with how this case has been characterized by 

some of my colleagues. In fact, the court many times has upheld 

Congress’ right to pass anti-corruption campaign finance laws. 

In 2003, the court said prevention corrupting activity clearly 

qualifies as an important governmental interest and yet just 7 

years later with the addition of Justices Roberts and Alito, the 

court completely reversed itself. 

The majority wrote this court now concludes that independent 

expenditures including those made by Corporations do not despite 

huge Congressional findings to the contrary in what seems to me 

to be common sense, do not give rise to corruption or the appearance of corruption. Those two holdings clearly are not consistent, 

right? 

Ms. KAGAN. Well, Senator Schumer, I argued the case before the 

court. I focused quite heavily on the Congressional record that had 

been put together before McCain/Feingold. I argued that the court 

should give deference to that Congressional record. 

Now, the court disagreed. The court said use the compelling interest standard which I think everybody agreed was the right 

standard but said that standard had not been met. 

Senator SCHUMER. And what about, what do you think if you 

could comment generally, I’m not asking about the Roberts concurrence in which he distinguished Austin as an abhorration. What do 

you think of that? 

Ms. KAGAN. Oh, I’m sorry. Senator Schumer, the government argued that it was not an abhorration and this was very much an 

issue in this case. This was certainly the theory of the other side 

and it was adopted by the court and specifically discussed in the 

Chief Justice’s opinion that the chief Justice said that Austin itself 

had been contrary to prior precedent. 

The government argued that it had not been. That it was consistent with a line of precedent and with a historic understanding 

of appropriate role of—— 

Senator SCHUMER. And there had been a broad line, the government argued that there had been a broad line of cases that had 

been consistent with Austin, isn’t that right? 

Ms. KAGAN. Yes. That’s correct. 

Senator SCHUMER. And the government argued that moving, you 

know, distinguishing, moving away from Austin was the 

abhorration, right? 

Ms. KAGAN. The government certainly argued that moving away 

from Austin would be a disruption of the system, especially given 

the reliance that Congress and that the states had placed on Austin. 

155 

Senator SCHUMER. Right. OK. I’d like to move on here. Just one 

little thing on these revered judges. This was about the Israeli justice Barak. I’d just like to ask you. 

You said you introduced a whole lot of people. You said you’d do 

a very nice introduction for any of us which we appreciate. 

Here is something you wrote about Judge Posner who clearly 

doesn’t have the same ideology, the same views as Justice Barak 

or of many, of me for sure. 

But you wrote Judge Posner is a prober. He is constantly asking 

why the problems before him have arisen. What features of the 

world are responsible for the party’s conflict and their inability to 

resolve them. He is always exploring why legal documents are the 

way they are, behind the boilerplate statements and string citations provided by the litigants, what purposes and goals the law is 

seeking to serve. 

Should I because you wrote something so nice about Judge 

Posner think that you have the same views that he does? 

Ms. KAGAN. I think that that’s a pretty good description of Judge 

Posner, but no I don’t think you should think that. 

Senator SCHUMER. The same as with Judge Barak, right? 

Ms. KAGAN. The same as with Judge Barak. 

Senator SCHUMER. OK. And we could probably find you wrote 

glowing tributes to all kinds of people of many different ideologies. 

So it would be impossible for you to agree with all of them, right? 

Ms. KAGAN. One of my greatest introductions was to Justice 

Scalia. 

Senator SCHUMER. There you go. Good. 

Ms. KAGAN. Whom I in fact have the greatest admiration for. 

Senator SCHUMER. Thank you for that. Let’s go a little to foreign 

law which came up a few times here. 

Some of your critics have implied that you will improperly consider foreign law and sources in cases before you. They cite your 

inclusion of international law into the first year curriculum, shame 

on you, as an indication that you don’t sufficiently respect the autonomy of the U.S. from foreign law. 

Just so the record is clear 100 percent, what do you believe is 

the appropriate role, if any, of foreign law in U.S. courts? 

Ms. KAGAN. Senator Schumer, the American constitution is an 

American document with an American history with American precedence. The fundamental way in which courts should approach interpretation of that document is by looking at that document and 

the American sources that interpret it. 

Now, there may be instances such as some of the ones that I suggested where international law or foreign law is relevant, you 

know, the meaning of Embassador, the interpretation of the authorization for the use of military force were two instances I gave. 

But in general, this is an American constitution which needs to 

be interpreted by American judges using American sources. 

Senator SCHUMER. All right. Just tell us why you put international law into the curriculum at Harvard. Is it because as some 

of the critics I have seen in some of the blogs and other places, is 

it as some of these critics suggested because you believe it is more 

important than U.S. constitutional law? 

156 

Ms. KAGAN. No, Senator Schumer. It is what I said to Senator 

Grassley. U.S. constitutional law is basic, it is fundamental, but I 

do believe that law graduates in our world today need to have some 

understanding of the laws beyond American shores to do international litigation, to do international transactions. 

We live in an interconnected world, we live in a competitive 

world and if our lawyers don’t understand that world, quite honestly we are going to be at a competitive disadvantage. 

Senator SCHUMER. Do you know any law school that doesn’t have 

some kind of international law course in its curriculum? 

Ms. KAGAN. I think that that would be unthinkable. 

Senator SCHUMER. OK. And of course when an American judge 

considers, they consider many non-binding sources when they reach 

a determination. 

I asked this of Judge Sotomayor because it came up then. Judge 

Roberts’ prominent citation in a voting rights act case decided last 

year, Justice Roberts, he cited an article by NYU Professor Samuel 

Isacaroff published in the Columbia Law Review. 

Would you agree that Law Review articles are not binding on 

American judges even though they might be cited by some? 

Ms. KAGAN. Some law professors would like them to be binding, 

but no. I agree, Senator Schumer, that the way they are cited in 

these decisions are just, this isn’t binding, this isn’t precedent, but 

this is a person who had a good idea and the decision in some 

sense cites or reflects that. 

Senator SCHUMER. And it sure wasn’t improper of the Chief Justice to consider such sources in reaching his decision, was it? 

Ms. KAGAN. Absolutely not. 

Senator SCHUMER. And how about Justice Scalia? He has a well 

known regard for dictionary definitions in determining the meaning 

of words or phrases and statutes being interpreted by the court. 

In one case, MCI versus AT&T, Justice Scalia cited not one but 

five different dictionaries to establish the meaning of the word 

‘‘modify’’ in a statute. Would you agree that dictionaries are not 

binding on American judges? 

Ms. KAGAN. That’s correct. 

Senator SCHUMER. OK. But was it improper for Justice Scalia to 

consider dictionary definitions? 

Ms. KAGAN. Of course not. 

Senator SCHUMER. Right. So in conclusion, wouldn’t you agree 

that American judges of all ideological stripes keep their minds 

open to sources and ideas other than those that are directly binding on them under the constitution and the laws of the United 

States? 

Ms. KAGAN. I do think that that’s right, Senator Schumer, that 

judges should keep their minds open, should learn from a variety 

of sources that are not binding, that do not have precedential force. 

Senator SCHUMER. Thank you. Mr. Chairman, I will yield back 

my remaining time. 

Chairman LEAHY. Thank you very much. Of course I encourage 

any Senators who want to do that. We will stand in recess for approximately 10 minutes. Everybody will get a break. How are you 

doing? 

Ms. KAGAN. I’m good. 

157 

Chairman LEAHY. I’m enjoying some of the ethnic humor here. 

Wait until I talk about the Italian side and the Irish side of my 

family and the French Canadian side of my wife’s family. We will 

have something going. We stand recessed. 

[Recess 4:35 p.m. to 5 p.m.] 

Chairman LEAHY. The only reason I don’t stop the photographers 

immediately, they have the one job that I wish I had if I wasn’t 

in the U.S. Senate, and that’s being a photographer. So out of sheer 

envy, I can’t stop them. 

We’re going to see how far we can go. Senator Cornyn, you’ve 

been waiting patiently here for a day and a half. Please go ahead. 

Senator CORNYN. Thank you, Mr. Chairman. 

Ms. Kagan, you had an interesting and refreshing exchange with 

Senator Graham a little earlier about Miguel Estrada, who as you 

know was nominated to the D.C. Circuit Court of Appeals. I would 

say that your friendship and mutual admiration is apparent. But 

I’m curious. During the time that he was nominated to the Circuit 

Court of Appeals, did you ever speak out publicly or talk to him 

privately about his nomination and the fact that he was filibustered seven times? 

Ms. KAGAN. You know, I—I—I don’t think that we—we—we’ve 

sort of been in and out of touch during those years. I’m not actually 

sure that we talked during that time. We might have, I’m just not 

sure. 

Senator CORNYN. And I gather you did not have any public comment about the filibuster of his nomination? 

Ms. KAGAN. Senator Cornyn, I would have done whatever he 

asked me to do because I think he’s a great lawyer, as I said, and 

a great human being. I don’t think he ever asked me. There was 

a time when I was dean when I didn’t do any letters of that kind. 

Before I was dean, I wrote letters of that kind for Michael McConnell and for Peter Keissler. I think if I didn’t with Miguel, it’s because he never asked me to do so. 

Senator CORNYN. You’ve had a very interesting questions-and-answers session with Senator Specter, who asked you about cameras 

in the courtroom. I happen to agree with him, and you, that that 

would be a great educational opportunity for the American people. 

I know from experience that cameras can be placed unobtrusively 

in an appellate court and no one really pays any attention to them, 

but it’s a great opportunity for people to watch and learn, just as 

I hope they are watching and learning something about our judiciary and the Supreme Court as a result of these hearings. 

While I agree with you on that point, I confess to be troubled still 

about the exchange that you had with Senator Sessions over banning military recruiters at Harvard, and I expect we’ll come back 

to that at a later point. 

But I’d like to go back to where I started in my opening statement, talking about the traditional concept of the role of a judge 

as opposed to the role of an activist, as I try to define it. Traditionalists who feel bound to a written Constitution and written laws 

and precedent as opposed to judges who believe that there is—that 

there—whether it’s their empathy, as the President has talked 

about it, or a living Constitution which has no fixed meaning, 

that’s what I mean by the activist role. 

158 

In an earlier exchange with Senator Leahy, you stated that there 

are two ways to change the Constitution. Obviously by Article 5. 

You said, secondly, by court decision, and I want to ask you a little 

bit about that. You cited Brown v. Board of Education as an example of a court decision that changed the Constitution, stating that 

the Framers of the Fourteenth Amendment believed it allowed segregation in schools. 

I believe, and I think a number of prominent legal scholars 

agree, that Brown did not change the Constitution. Rather, I believe Brown affirmed and restored the original meaning of the 

Fourteenth Amendment by overturning the repugnant and unconstitutional separate but equal regime sanctioned by Plessy v. Ferguson. So I support Brown on originalist grounds. 

I would just refer you to Senator Charles Sumner, a leading 

framer of the Fourteenth Amendment, who said, ‘‘It’s easy to see 

that the separate school, founded on an odious discrimination and 

sometimes offered as an equivalent for the common school, is an illdisguised violation of the principle of equality.’’ 

Between 1870 and 1875, both Houses of the U.S. Congress voted 

repeatedly, by significant majorities, in favor of legislation premised on the theory that segregation in the public schools is unconstitutional. 

So in light of this history, I believe that Brown did not change 

the Constitution, but rather realigned the interpretation of the 

Fourteenth Amendment with the intentions of the Framers of the 

Fourteenth Amendment. 

So on this, you and I may disagree, but let me—— 

Ms. KAGAN. If I could, Senator Cornyn. 

Senator CORNYN. Sure. 

Ms. KAGAN. I think I didn’t say that Brown changed the Constitution. I think I said that Brown interpreted the Constitution in 

a different way than it had been interpreted theretofore. I do think 

it’s hard to make the case that school desegregation was thought 

of as commanded by the Fourteenth Amendment in 1868, and I 

think that there are a variety of other practices that similarly were 

countenanced in 1868 that are not now. That doesn’t mean that the 

Constitution has changed. 

In fact, the Constitution’s Equal Protection Clause is a quite general provision. It speaks in broad terms. It lays down a general 

principle of equality. And in writing the provision that way, I think 

that the drafters of the Constitution knew exactly what they were 

doing. They didn’t mean to constitutionalize all of their practices in 

1868. They meant to set forth a principle of equality that would be 

applied over time to new situations and new conditions, and I think 

that that’s exactly what has occurred. 

Senator CORNYN. I appreciate your answer. What I’m trying to 

figure out is whether you and I agree or disagree about how the 

American people can change their Constitution. Do you think the 

courts can change the Constitution or do you agree with me that 

Article 5 has the sole means by which the Constitution can be 

modified—that is either by Congress proposing a constitutional 

amendment or by a constitutional convention proposing constitutional amendments which are later ratified by three-quarters of the 

States? 

159 

Ms. KAGAN. I think the Constitution is a timeless document, setting forth certain timeless principles. It’s the genius of the Constitution that not everything was set forth in specific terms, but 

that instead certain provisions were phrased in very general terms 

that enabled people, that enabled the courts over time to apply the 

principle to new conditions and to new circumstances. 

I think that that’s the continuing obligation of the Court to do 

that, to ensure that the Constitution does apply appropriately and 

that the timeless principles set forth in the Constitution do apply 

appropriately for our posterity. 

Senator CORNYN. Do you believe in the idea of a living Constitution, that the Constitution itself has no fixed meaning? 

Ms. KAGAN. You know, I think that—I—I don’t particularly think 

that the term is apt, and I especially don’t like what people associate with it. I think people associate with it a kind of loosey-goosey 

style of interpretation in which anything goes, in which there are 

no constraints, in which judges can import their own personal 

views and preferences. And I most certainly do not agree with that. 

I think of the job of constitutional interpretation the courts carry 

on as a highly constrained one, as constrained by text, by history, 

by precedent, and the principles imbedded in that precedent. So the 

courts are—are—are limited to specifically legal sources. It’s a 

highly constrained role, a circumscribed role. 

So to the extent that that term is used in such a way as to suggest that that’s not the case, I don’t agree with that. But I do 

think, as I just indicated, that the Constitution, and specifically— 

not the entire Constitution, but the general provisions of the Constitution, that the genius of the drafters was—was to draft those 

so that they could be applied to new conditions, to new circumstances, to changes in the world. 

Senator CORNYN. So I’m clear, do you agree or disagree that the 

Supreme Court of the United States can change the Constitution? 

Ms. KAGAN. The Constitution does not change. The Constitution 

is a—you know, unless by amendment. The Constitution is a document that—that—that does not change, that is timeless, and—and 

timeless in the principles that it embodies. But it of course is applied to new situations, to new facts, to new circumstances all the 

time. In that process of being applied to new facts and new circumstances and new situations, development of our constitutional 

law does indeed occur. 

Senator CORNYN. And so do you agree that honoring the Constitution means respecting the ability of only the people to change 

it through constitutional amendment under Article 5? 

Ms. KAGAN. Senator Cornyn, Article 5 gives the—the only way 

to actually amend the text of the Constitution. That is the only way 

to amend the text of the Constitution. But I also want to say again 

the sort of second half of this, that the text of the Constitution has 

to be applied to new circumstances, to new conditions, to new developments in the world, and that it’s the job of the courts to do 

that. 

Senator CORNYN. And I can’t disagree with what you just said. 

But to me, when you interpret the Constitution, and how it applies 

to a given set of facts, that does not, to my way of thinking, imply 

160 

that you’re changing the Constitution, but rather interpreting and 

applying the Constitution to that set of facts. Do we agree? 

Ms. KAGAN. I think that’s right. The Constitution is the Constitution, but it is interpreted and it applies to new facts as they come 

up, new cases as they come up, new circumstances as they come 

up. 

Senator CORNYN. As I’ve—— 

Ms. KAGAN. Just to, you know, give a concrete example of this, 

and it goes to—— 

Senator CORNYN. Let’s—let’s move on, because I think you and 

I agree so far. But let me challenge it a little bit more. As I’ve defined the term ‘‘judicial activism,’’ it is the belief that there is no 

such thing as a fixed meaning of the Constitution and laws, but 

rather that judges possess some sort of power to—to create constitutional rights out of whole cloth. Do you believe that that kind 

of judicial activism, as I’ve tried to define it, is ever justified? 

Ms. KAGAN. I think that judges are always constrained by the 

law. They’re constrained by—you know, I mean, sometimes the text 

speaks clearly and then they’re constrained by the text alone. 

Where the text doesn’t speak clearly, they look to other sources of 

law. They look to original intent, they look to continuing history 

and traditions, they look to precedent and the principles embodied 

in those precedents. But they’re always constrained by the law. It’s 

law all the way down. 

Senator CORNYN. Let’s change the topic slightly and talk a little 

bit about Federalism. Millions of Americans believe that the Federal Government is simply out of control today because they were 

taught, as perhaps all of us were taught, that the Federal Government is one of enumerated powers and that all powers not delegated to the Federal Government are retained by the people and 

by the States. That’s paraphrasing the Tenth Amendment, of 

course. 

Under the Framer’s Constitution, the Supreme Court has an important role in limiting the reach of the Congress, which in my experience, and by my observation, knows no limits to its own power. 

The only way Congress is going to be restrained is by one of two 

ways. Either the Court is going to say ‘‘you’ve gone too far,’’ which 

occasionally they’ve done, or the people will amend the Constitution, either through the Congressionally proposed constitutional 

amendment process or through the constitutional convention process, proposing amendments which are then ratified. 

But do you agree with me that Supreme Court cases in recent 

decades have largely eliminated the important role of the Supreme 

Court in checking the size and scope of the Federal Government? 

Ms. KAGAN. Senator Cornyn, I guess I actually think that in recent decades the Court has suggested that there are some limits on 

the scope of the Federal Government, so if you go back to the earliest days, Chief Justice Marshall and Gibbons v. Ogden, that was 

the first case that—at least the first important case that interpreted the scope of the Commerce Clause, and there Justice Marshall wrote a fairly expansive opinion, talking about the interconnectedness of the United States and the need for the Nation to 

function as a Nation. 

161 

Now, over time the Court imposed very significant limits on Congress’ power. This was basically until about 1935, imposed very significant powers—limits on Congress’ power under the Commerce 

Clause. At that point, a switch took place and—and the Supreme 

Court determined that the old jurisprudence really wasn’t working, 

that the distinctions that the Court had set up between direct and 

indirect effects on Congress wasn’t working, that the distinction 

that the Court had set up between manufacture and commerce 

wasn’t working. And the Court also, I think, realized—and this was 

really the great recognition of those New Deal years—was that deference to Congress was appropriate in this area. 

Senator CORNYN. How about—how about today? You talked 

about some legal history that I’m vaguely familiar with. But 

today—let me give you an example. I’m not going to ask you to tell 

us how you would decide the case, but, for example, many Americans are concerned by the fact that the Federal Government, in the 

recent health care legislation that was passed, has imposed an individual mandate on health coverage and imposed a penalty, a financial penalty, if you don’t purchase government-approved health 

insurance. To my knowledge, that would represent an unprecedented reach of Congress’ authority to legislate under the Interstate Commerce Clause, under the guise of regulating interstate 

commerce. 

But again, the Tenth Amendment, which I think most people sort 

of popularly view as an expression of our Federal system and the 

fact that the States and individuals retain power that’s not been 

delegated to the Federal Government, has largely, in my opinion, 

been rendered a dead letter by Supreme Court decisions. 

Now, I grant you that the Rehnquist court, in the Lopez case and 

others, did begin to work a little bit around the edges, but if Congress can force people who are sitting on their couch at home to 

purchase a product and penalize them if they don’t purchase the 

government-approved product, it seems to me there is no limit to 

the Federal Government’s authority, and we’ve come a long, long 

way from what our Founders intended. Do you agree? 

Ms. KAGAN. Well, I think the current state of the law is to grant 

broad deference to Congress in this area, to assume that Congress 

knows what’s necessary in terms of the regulation of the country’s 

economy, but to have some limits. The limits are the ones that 

were set forth in the cases that you mentioned, the Lopez case and 

the Morrison case, which are where the activity that’s being regulated is not itself economic in nature and is activity that’s traditionally been regulated by the States. 

But to the extent that Congress regulates the channels of commerce, the instrumentalities of commerce, and also to the extent 

that Congress is regulating things that substantially affect interstate commerce, there the Court has given Congress broad discretion. 

Senator CORNYN. And would you agree with me that if the Supreme Court of the United States is not going to constrain the 

power grabs of the Federal Government and constrain Congress in 

terms of its reach down to people’s everyday lives, that there remain only two constitutional options available: one is either to pass 

a constitutional amendment, for Congress to propose it, and then 

162 

to have that ratified by three-quarters of the States, or for a constitutional convention to be convened for purposes of proposing constitutional limits on Congress, which would then have to be ratified 

by three-quarters of the States. Do you agree with me, that’s the 

only recourse of the people to a limitless reach of the Federal Government, assuming the Supreme Court won’t do it? 

Ms. KAGAN. Well, I do think that there are limits on Congress’ 

commerce power. They’re the limits that were set forth in Lopez 

and Morrison, and they’re basically limits saying that Congress 

can’t regulate under the Commerce Clause where the activity in 

question is non-economic in nature. I think that that’s the limit 

that the Court has set. But within that, you’re quite right that 

Congress has broad authority under the Commerce Clause to act. 

To the extent that you or anybody else thinks that Congress ought 

not to have that authority under the Commerce Clause to act, an 

amendment to the Commerce Clause would be a perfectly appropriate way of changing the situation. 

Senator CORNYN. Under Article 5 of the Constitution? 

Ms. KAGAN. Under—— 

Senator CORNYN. In other words, the amendment process? 

Ms. KAGAN. Yes, yes, yes. 

Senator CORNYN. Either through—— 

Ms. KAGAN. I mean, any—any—— 

Senator CORNYN.—a constitutional amendment proposed by Congress—— 

Ms. KAGAN. You know, any part of it. 

Senator CORNYN.—or a constitutional convention—— 

Ms. KAGAN. Any part of the—— 

Senator CORNYN.—proposed by the States. 

Ms. KAGAN. Any part of the Constitution can be amended 

through Article 5. 

Senator CORNYN. I was—I was pleased to hear you say that, once 

decided by the Supreme Court, even by a 5–4 margin, that cases 

like Heller, McDonald, and Citizens United are—are the law of the 

land and entitled to—entitled to deference by succeeding Courts, 

even if you may disagree with the outcome. Did I state that correctly? 

Ms. KAGAN. Yes. Surely. The entire idea of precedent is that you 

can think a decision is wrong, you can have decided it differently 

if you had been on the Court when that decision was made, and 

nonetheless you are bound by that decision. That’s the—if—if—if— 

if the doctrine of precedent enabled you to overturn every decision 

that you thought was wrong, it wouldn’t be much of a doctrine. 

Senator CORNYN. I would just distinguish that from Congress. 

The rules, I guess, dating back to Parliament in England, that no 

Congress, no Parliament, could bind a succeeding Parliament. So 

this Congress can pass a law and the next Congress can essentially 

repeal that act. That’s entirely appropriate, should Congress decide 

to do that. Correct? 

Ms. KAGAN. That’s quite right, Senator Cornyn. It’s a really fundamental difference between the legislative process and the judicial 

process. The reason that the doctrine of precedent has developed— 

or I suppose many reasons. One is just the incredible importance 

of stability in the system, but also just a notion of humility, that 

163 

no judge should look at a case and say, oh, I would have decided 

it differently, I’m going to decide it differently, that a judge 

should—should view prior decisions with a great deal of humility 

and deference. 

Senator CORNYN. Well, it would be—it would be a strange system 

indeed if succeeding Supreme Courts—in other words, once you’re 

confirmed to the Supreme Court and you’re sitting there it would 

be a strange situation if then the litigants could bring the same 

case back that was decided in McDonald or Heller and, because you 

happen to disagree with it, that you could change the meaning of 

the Constitution more or less at will. That would not be a good system of jurisprudence, would it? 

Ms. KAGAN. I do believe that, Senator Cornyn. I think when— 

when the Court looks as though it’s flipping around and changing 

sides just because the justices have changed, that that’s bad for the 

credibility of the institution and it’s bad for the system of law. 

Senator CORNYN. Let me talk a little bit more about guns. I 

was—I was—I kind of chuckled when I saw a notation in some of 

the records we got from the Clinton archives, that you referred to 

some of the gun—gun advocates as ‘‘gunners.’’ But I really didn’t 

take that too seriously. I just thought it was kind of—it made me 

chuckle a little bit. 

Ms. KAGAN. You know, I just don’t know what you’re referring 

to, Senator Cornyn. I’ve not seen that ever. 

Senator CORNYN. OK. Well, maybe I’ll show that to you sometime. 

But I just want to—— 

Ms. KAGAN. You know, gunners is a kind of law school term of 

art. 

Senator CORNYN. Well, basketball, law school, whatever, you 

know. 

But let me just ask you, isn’t it true that in the McDonald case, 

as in the Heller case, that the Court did not touch a number of permissible prohibitions on gun ownership and gun possession? For 

example, concealed weapon prohibitions, prohibitions on possession 

of firearms by felons or persons who are mentally ill, carrying guns 

in government buildings, and the like. In other words, just by recognizing that individual right to bear and keep arms, the Supreme 

Court didn’t touch those prohibitions on gun ownership under a 

number of those circumstances, wouldn’t you agree? 

Ms. KAGAN. Senator Cornyn, I’ve not yet had a chance to read 

the McDonald opinion that came out yesterday, but I know that in 

Heller the Court specifically says that nothing in the opinion is 

meant to suggest the unconstitutionality of a number of kinds of 

provisions. I think the kinds of provisions listed in Heller are felon 

and possession laws, are laws regulating the possession of guns in 

certain sensitive places, and I think that there’s one dealing with 

various commercial activities regarding guns. 

Senator CORNYN. Right. 

Ms. KAGAN. So the Court said that really nothing, in its opinion, 

is meant to in any way cast doubt on the constitutionality of those 

longstanding laws. 

Senator CORNYN. I would just—and in McDonald v. Chicago, 

Justice Alito, on page 39 and 40 of the slip opinion, reiterated the 

164 

same assurances that you just talked about in Heller that they 

would apply after the McDonald case was decided as well. 

Ms. Kagan, one of the things that you’ve heard a lot of us talk 

about, is obviously you’ve had a very distinguished career and we 

all congratulate you for the great honor of being nominated to the 

United States Supreme Court. But since you haven’t been a 

judge—and no, that’s not a disqualifier, we all know that—we don’t 

have a judicial record, for example, like we had with Judge 

Sotomayor by which to sort of see what her track record looked like 

when it came to deciding cases. And so we’ve been trying to get everything we can to understand where you’re coming from, how you 

would perform your duties as a judge. I congratulate you on your 

testimony here today. I think you’ve done a good job of explaining 

from the witness chair how you would decide cases. 

But one of the things that—that makes me a little skeptical 

sometimes is, for example, during the confirmation hearings of 

Judge Sotomayor, she said—we were talking about the right to 

keep and bear arms—She said: ‘‘I understand how important the 

right to bear arms is to many, many Americans. In fact, one of my 

godchildren is a member of the NRA, and I have friends who hunt. 

I understand the individual right fully that the Supreme Court recognized in Heller.’’ Let me read that last sentence again: she said, 

‘‘I understand the individual right that the Supreme Court recognized in Heller.’’ 

But on Monday, in the dissenting opinion filed by Justice 

Sotomayor, along with Justices Breyer and Ginsburg, that dissenting opinion said: ‘‘The Framers did not write the Second 

Amendment in order to protect a private right of armed self-defense.’’ 

I don’t know how you reconcile those two statements, that there 

is an individual right, and then to conclude later, in the context of 

McDonald, that the Framers did not write the Second Amendment 

in order to protect a private right of armed self-defense. 

Justice Sotomayor went on and said, ‘‘I can find nothing in the 

Second Amendment’s text, history, or underlying rationale that 

would warrant characterizing it as fundamental insofar as it seeks 

to protect the keeping and bearing of arms for private self-defense 

purposes.’’ 

Now, it is disconcerting, to say the least, where what appears to 

me—I think, and in fairness, does appear to be—a direct contradiction of what Judge Sotomayor said in her confirmation hearings 

with what she has decided in the first opportunity to decide a case 

on that same subject. 

And so you understand why members of the Committee are careful to understand not just a nominee’s qualifications, background, 

and experience, but also the judicial philosophy and approach of 

the nominee, so that we can have some reasonable assurance that 

the way the nominee testifies is—not in deciding individual cases, 

but generally speaking—going to be honored and respected once 

they receive a lifetime appointment. 

Let me just ask you, do you believe that the Second Amendment 

guarantees a fundamental individual right to keep and bear arms 

for law-abiding Americans? 

165 

Ms. KAGAN. Senator Cornyn, I think that Heller is settled law, 

and Heller has decided that the First—excuse me, that the Second 

Amendment confers such an individual right to keep and bear 

arms. 

Senator CORNYN. And do you believe like the majority in McDonald—do you agree with that decision that the Second Amendment 

is fully applicable to the States, has full stare decisis effect? And 

is there any reason that you know of why it would not be controlling? 

Ms. KAGAN. There is no reason I know of, that McDonald, as well 

as Heller, as settled law and entitled to all the weight that precedent usually gets. 

Senator CORNYN. OK. Well, in the minute and 35 seconds we 

have remaining for this round, let me just ask you, take you back 

again to Citizens United. I think a number—in the opening statements you heard a number of differences of opinion on the part of 

this Committee about—about the decision. 

But I would ask, something you said that the Court would look 

at in determining the constitutionality of restrictions on free political speech, that I think I heard you say that the Court could look 

at the motives of the people advocating for those restrictions. Did 

I understand that correctly? 

Ms. KAGAN. I don’t think so. I’m not sure what I—what I said 

that you might have gleaned that from. I actually did write an article about this during my years as a law professor at the University 

of Chicago. It was not that the Court should look to the motives 

of the legislature, it was really that First Amendment doctrine— 

a lot—quite a number of the rules of First Amendment doctrine 

were understood as reflecting a concern about governmental motive, but that the rules were set up so that the court never had to 

make that underlying inquiry about governmental motive. 

Senator CORNYN. Let me ask you one last question in the few 

seconds we have. Assuming that a majority party, let’s say Democrats who enjoy a very large majority in both Houses of the legislature, decide to suppress the speech of political supporters of the minority because they have the votes in order to do so, in effect trying 

to put a thumb on the—on the scales in terms of political speech. 

Do you think a court can look at those kinds of motives—seeking 

advantage, picking winners and losers in the course of restricting 

political speech? 

Ms. KAGAN. Senator Cornyn, I think that the Court does it, but 

not by looking directly at motive. The—the most—one of the most 

important doctrines of the First Amendment is the near-complete 

ban on viewpoint discrimination, that viewpoint discrimination is 

held to the highest constitutional standard. 

And that’s because of a concern that the majority is attempting 

to suppress the speech of a minority, and the classic example is 

very much along the lines that you gave, is a legislature saying 

there will be no speech by Republicans or there will be no speech 

by Democrats. And the way that the Court would view that is that 

that’s a classic example of a viewpoint discrimination and is pretty 

much presumptively prohibited. 

Chairman LEAHY. Thank you. 

Senator Durbin. 

166 

Senator DURBIN. Thank you, Mr. Chairman. 

Ms. Kagan, welcome. You are probably aware of the fact that 

about 12 years ago, then-Majority Leader Tom Daschle began a 

tradition—thank goodness, it became a tradition—that every 2 

years the Senate would join the justices of the Supreme Court for 

a dinner at the Supreme Court building. It’s one night out of 2 

years and the only time when we come into direct contact with justices on the Supreme Court in a social setting. And most of us look 

forward to it and wonder which Supreme Court justice we’ll draw 

at our table to have a chance for conversation. 

And this last time that we got together I was sitting with Justice 

Kennedy, and we talked about a lot of things. And I said to him 

at one point, it appears that I’m going to be chairing the Crime 

Subcommittee of the Senate Judiciary Committee, and what kind 

of issues do you think I ought to consider? And he said, well, I’ll 

tell you what I think and I’ll tell you, most Supreme Court justices 

would probably agree with me. He mentioned an issue which has 

not been raised during the course of this hearing. It related to the 

system of incarceration and corrections in the United States. 

He felt—and I agree—that our system is broken, badly broken. 

Today in the United States, more than 2.3 million people are in 

prison. We have the most prisoners of any country in the world, as 

well as the highest per capita rate of prisoners in the world, and 

African-Americans are incarcerated at nearly six times the rate of 

white Americans. 

One of the highlights of Justice Sotomayor’s confirmation hearing 

last year was Senator Sessions, who told Wade Henderson of the 

Leadership Conference on Civil Rights, ‘‘We’re going to do that 

crack cocaine thing.’’ Many people joked about Senator Sessions’ 

choice of words, but I heard him and followed up on it because I 

was glad to hear that he shared my interest in this important 

issue. 

He was referring to the crack/powder disparity in sentencing in 

the United States, which is one significant cause for our record levels of incarceration and racial disparity in our system. It takes 

100—under current law, it takes 100 times more powder cocaine 

than crack cocaine to trigger the same mandatory minimum sentences. Possessing 5 grams of crack cocaine carries the same 5-year 

mandatory minimum sentence as selling 500 grams of powder cocaine. 

Senator Sessions is a man of his word. Earlier this year, the 

Committee unanimously passed legislation to reduce the crack/ 

power disparity from 100:1 to 18:1. Some of us had hoped for 1:1 

or some other configuration, but this was, in fact, a wholesome, bipartisan agreement that was reported favorably with an overwhelming vote from this committee, and then passed on the floor 

with a voice vote, now sitting in the House, which I hope they’ll 

soon address. 

You were involved with this issue during your time in the Clinton White House. In 1997, you and your colleague Bruce Reid, who 

I believe was with you yesterday, recommended that President 

Clinton support a 10:1 crack/powder ratio, and you wrote, ‘‘Precisely because it takes a middle position . . . this recommendation 

offers the best hope of achieving progress.’’ Perhaps if you’d been 

167 

advising this Committee we could have taken action on the issue 

even earlier. 

Some have argued that you demonstrated your far left political 

views during your time in the Clinton White House, but I think 

this example, and many others, prove them wrong. Can you give 

me your views on this crack/powder ratio disparity, why you 

thought 10:1 was a reasonable alternative? And if you could, address this general question that Justice Kennedy raised about 

what’s happening in America when it comes to our prisons and corrections system. 

Ms. KAGAN. Senator Durbin, the crack cocaine ratio is the part 

of our sentencing system that I’ve had most to do with as a policy 

matter. When I was in the Clinton White House and when I was 

serving as a policy aide to the President, we did deal with this 

issue and suggested that the ratio be reduced to 10:1. I think at 

that point some of us felt that it might go down even further, but 

thought that 10:1 was the practical approach to take, that it was 

conceivable. 

Now, in the end it wasn’t. That was—that—that—that—the Clinton administration did not manage to make progress on that issue. 

I know that the Attorney General whom I serve, and the President, 

President Obama, has stated that their view is that it should go 

down all the way to 1:1, that in fact there’s no real rational distinction between crack and powder cocaine for—for sentencing purposes. 

The—and that—and that that—the distinction that does exist is 

a distinction that has a great deal of racially disproportionate impact. I know that Congress has—has struggled with this issue. It 

is a policy issue, quintessentially. It’s one, you know, that Justice 

Kennedy—he could have said, well, this is a good idea, or that’s a 

good idea, but it really is one for Congress. There’s—there’s nothing that the Supreme Court, or that any court, can do about it. 

It’s really one that Congress has to decide, what the sentencing 

rules ought to be with respect to—to crack and power cocaine. As 

a policy aide to President Clinton, and President Clinton felt 

strongly that it should go down. I tried to the best of my ability 

to implement his policy view on that question. President Obama 

believes the same. But as a judge—as a judge, the only thing that 

would matter would be the actual statute and—and unless and 

until Congress changes that statute, the—the current sentencing 

system would be the system that any judge should apply. 

Senator DURBIN. So go to the broader issue for a moment. And 

I understand what you’re saying. We write the laws and, as a 

judge, you need to follow those laws. As you step back, looking at 

this system, I mean, in light of your training in the law and all 

you’ve done, when you look at our system of corrections and incarceration in this country and you see the dramatic incarceration of 

minorities in our country, for example, does it suggest to you that 

we truly have equality under the law? 

Ms. KAGAN. Senator Durbin, the crack/powder distinction is the 

one that I’ve dealt with most. There—there are many that I have 

not dealt with as a policy matter. I have seen some sentencing 

issues with—in my time as Solicitor General, but I have tried very 

hard during that time to apply the law that exists and to take apVerDate Nov 24 2008 12:24 Aug 23, 2011 Jkt 067622 PO 00000 Frm 00177 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\67622.TXT SJUD1 PsN: CMORC
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peals in the way that—that—that appropriately implements that 

law. 

So, you know, I think this—I think justices of the Supreme Court 

are appropriately interested in these kinds of questions. I know 

Justice Kennedy has taken a deep interest in sentencing issues. I 

think that that’s much to his credit, but it’s a kind of interest that 

I think has to be advanced in conversations of the kind that he had 

with you, because when a justice sits on the bench the justice can 

only apply the law that Congress is—that Congress gives him or 

her, and it really is up to Congress to decide whether the system 

that we have is the correct one or whether to change it. 

Senator DURBIN. I’d like to take this line of questioning to the 

next level, the ultimate criminal penalty: the death penalty. Because what I found interesting—I’m such a fan of John Paul Stevens. If you look back at his political origins, we came out of different branches of the Illinois political tree, that’s for sure. But in 

the time that he served on the court, I’ve really come to respect 

him so much and the role that he plays, the important role that 

he plays there. 

And what I find interesting is a parallel outcome in judicial careers. The first was from Justice Harry Blackmun. Linda Greenhouse wrote this book that I’ve quoted from before. And Justice 

Blackmun, at the end of his career, near the time of his retirement, 

made an observation about the death penalty which he had supported throughout his term on the Supreme Court. 

A case came along and he had this famous sentence, oft-quoted: 

‘‘From this day forward,’’ Justice Blackmun wrote, ‘‘I no longer 

shall tinker with the machinery of death.’’ He basically had reversed his position on the death penalty after more than 30 years 

of service on the bench, when he concluded that it could not be applied fairly based on his experience in all the cases that had come 

before him. 

Justice Stevens had a similar epiphany in the case of Baze v. 

Rees. He went through this long analysis of the death penalty and 

concluded as well that it was cruel and unusual and he basically 

said, though, it wouldn’t affect the ruling in this particular case, 

that he believed that at this point in his career he could no longer 

support the death penalty. 

You’ve had questions asked of you from this Judiciary Committee, when you came before us for Solicitor General, about your 

position on the death penalty. I think I know what your answer’s 

going to be, and I’m going to give you a chance to put it on the 

record again. But then I would like to ask a follow-up question 

about Justices Stevens and Blackmun at the end of their judicial 

careers. 

For the record, would you state your position on the death penalty? 

Ms. KAGAN. Well, you’re exactly right, Senator Durbin, that this 

was asked me during my Solicitor General hearing and in the written questions that followed, and I said then what I will repeat 

today, which is that the constitutionality of the death penalty generally is established law and entitled to precedential weight. 

Senator DURBIN. You—— 

169 

Ms. KAGAN. I think somebody also asked me whether I had 

moral qualms about imposing the death penalty. This was in connection with my Solicitor General nomination, so I think that the 

concern was whether, in any work as Solicitor General, I could appropriately make decisions. And I said that I had no such moral 

qualms and that I could conscientiously apply the law as it was 

written. 

Senator DURBIN. Now I’ll ask you to reflect on what happened at 

the end of the judicial careers of Justices Blackman and Stevens, 

where, after considering all of these death penalty cases throughout their time on the bench they came to the conclusion that we 

could not apply this law in a fair way without creating an unfair 

result. What do you think led them to that at that point in their 

careers? 

Ms. KAGAN. I don’t know, Senator Durbin, and I would be reluctant to speak for either one of them. This is obviously a difficult 

area of the law, an area in which there are great stakes and where 

people and judges feel their responsibilities is very heavy, and appropriately so. As I suggested to you, I do think that the constitutionality of the death penalty generally is settled precedent. I think 

even Justice Stevens agreed with that. He—in those comments that 

he made, he suggested that he did not think it was appropriate to 

do what Justice Brennan and Justice Marshall had done, which 

was to dissent in every death penalty case. He thought that that 

was inappropriate because of the weight of the doctrine of precedent. 

Senator DURBIN. When you clerked for Justice Marshall, his 

views on the death penalty were well-known. Can you recall conversations with him on the subject when you were his clerk? 

Ms. KAGAN. Well, they were well-known and Justice Marshall’s 

clerks had, as a kind of special responsibility, and Justice Brennan’s clerks as well—clerks carry out the vision of the people 

whom—with—for whom they work, and Justice Marshall and Justice Brennan did believe that the death penalty was unconstitutional in all its applications, but more specifically, I think, viewed 

themselves as having a special role in each death penalty case to 

make sure that there were no special problems in the imposition 

of a death penalty, and if there were, to bring those problems to 

the attention of the rest of the court to make sure that those issues 

would not be—would not be missed or overlooked. And the clerks 

for Justice Marshall and Justice Brennan, of whom I was one, that 

was a significant part of the job. 

Senator DURBIN. And for the record, I mean, your position as you 

view this issue, if you are confirmed and become the Supreme 

Court justice, would be different than that of Justice Marshall? 

Ms. KAGAN. Senator Durbin, it would be because I do believe 

that the constitutionality of the death penalty is settled precedent 

going forward and—and—and Justice Marshall did not believe 

that. 

Senator DURBIN. General Kagan, you’ve been nominated to replace Justice Stevens, who led the Supreme Court’s efforts to reign 

in the Bush administration’s claims of executive power. The American people, I think, need to have confidence that you, too, will 

170 

stand up for our basic constitutional rights if you come to conclude 

that the President has overreached. 

The Bush administration took the position that the President has 

constitutional authority as Commander-in-Chief to indefinitely detain an individual who provides support to a terrorist organization, 

even if the person didn’t know or intend to support terrorism. The 

administration infamously argued that a little old lady in Switzerland can be held indefinitely without trial for innocently making a 

donation to a charitable organization that she did not know was actually a front for a terrorist organization. 

You discussed at length with Senator Graham earlier, and Senator Feinstein as well, as Solicitor General you’ve argued the 

Obama administration position, that the AUMF, Authorization for 

Use of Military Force, permits the detention of someone who provided substantial support to the Taliban, Al Qaeda, or associated 

forces, even if this individual is not on the battlefield and has not 

directly participated in hostilities. 

This is obviously a change or improvement on the Bush administration position because it’s based on constitutional authorization, 

not Presidential dictate. But I am still concerned that it is inconsistent with some of our treaty obligations, which only permit the 

military detention of battlefield combatants. 

A non-battlefield combatant who provides support for terrorism 

should be prosecuted and not subject to military detention. You 

have argued the Obama administration’s position on detention authority as Solicitor General, but does this necessarily represent 

your personal opinion or how you would rule on its legality as a 

Supreme Court justice? 

Ms. KAGAN. Senator Durbin, I think in general the positions that 

I’ve taken as Solicitor General do not necessarily represent positions that I would take as a justice, and I appreciate your actually 

suggesting that point in case I haven’t emphasized it enough. The 

positions that I’ve taken as Solicitor General are positions for the 

U.S. Government. 

Senator DURBIN. Advocacy. 

Ms. KAGAN. And—and are—I have a client and I’m the best advocate I possibly can be for that client. And the role of a judge is— 

is different from the role of an advocate, and it’s important to recognize that. 

Senator DURBIN. And in this particular area, the Supreme Court 

has not ruled on the legality of detaining an individual for providing material support to terrorism. Is that not right? 

Ms. KAGAN. The Supreme Court, in Hamdi, discussed only the 

detention of enemy belligerants who are picked up on the battlefield. 

Senator DURBIN. And in Hamdi, Justice O’Connor famously said 

that a ‘‘state of war is not a blank check for the President’’, and 

the Supreme Court held that, with certain due process protections, 

the U.S. may detain individuals who fought against the United 

States in Afghanistan as part of the Taliban. The Supreme Court 

has not upheld military detention in the war on terrorism for anyone other than this narrow class of battlefield detainees, as I understand it. Is that the way you understand it? 

171 

Ms. KAGAN. Yes. Your understanding is mine, that Hamdi talked 

only about enemy belligerants who are picked up on the battlefield. 

Senator DURBIN. That was one of the concerns I had with the 

nominations of Justices Roberts and Alito in terms of their interpretation of the law in this particular area. As an appellate court 

judge, in Hamdan v. Rumsfeld, John Roberts held that President 

Bush’s military commissions were legal, even though they were created without congressional authorization, and allowed the use of 

evidence obtained by torture. The Supreme Court reversed Judge 

Roberts—then—Judge Roberts, holding that the military commissions violated the law. Incidentally, Justice Stevens was the author 

of that opinion. 

The Hamdan case, while it was pending, there was an extraordinary effort in Congress to force the Supreme Court to dismiss the 

case by retroactively stripping the right to habeas corpus from 

Guanta ́namo detainees. As dean of Harvard Law School, you, along 

with the deans of Georgetown, Stanford, and Yale Law Schools 

wrote a letter opposing that legislation. Could you tell me about 

that position and why you took it at that point? 

Ms. KAGAN. Senator Durbin, I did write that letter and it was 

a letter that urged Congress to—really the principle point that 

were making in that letter was that the adjudications made by 

military commissions ought to be reviewed in Article 3 courts. And 

as Senator Graham and I discussed earlier, Congress did indeed do 

exactly that, that the initial amendment was re-crafted into the 

Graham-Kyl-Levin amendment, and it was really an extraordinary 

act of bipartisanship that occurred to—I think it was—the vote was 

85:14. 

And one of the things that that piece of legislation did was exactly what—I’m not—I’m not remotely suggesting cause and effect, 

but the letter urged that there be Article 3 review, and the KylGraham-Levin amendment provided Article 3 review of military 

commission determinations. 

Senator DURBIN. I bring this up because it’s come up during the 

course of this hearing, raised by Senator Kyl, and then in your discussion with Senator Graham. And there’s one other element that 

should be mentioned. In Boumediene v. Bush, the Supreme Court 

agreed with your conclusion in that letter. It held that it violates 

the U.S. Constitution to deny Guanta ́namo detainees the right to 

habeas. 

Justice Kennedy wrote for the majority and said ‘‘the laws and 

Constitution are designed to survive, and remain in force in extraordinary times.’’ Justice Stevens was the fifth vote in the cases; 

no surprise, Chief Justice Roberts and Justice Alito dissented. So, 

even before the passage of this legislation by 84:14, the Supreme 

Court had agreed with the conclusion in that letter that you sent, 

which I think is pretty good validation of the point that you were 

making. 

I’d like to ask about one other area that’s come up here a couple 

of times. My friend Senator Cornyn has left, but I know that his 

position is shared by many others on the other side of the table, 

on this whole question that comes up at virtually every hearing 

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tion. And it strikes me, there’s something missing in this conversation. This notion of a mechanical court and robot judges just 

doesn’t seem to me to reflect the reality of our system of justice and 

our history on the court. 

I will acknowledge, and I certainly wouldn’t question, Justice 

Cornyn’s conclusion that he thinks Brown v. Board of Education 

had been well hidden in the Fourteenth Amendment for a long 

time and was discovered in 1954, that it really was the original intention. But for at least 60 years, or close to 60 years, Plessy was 

the controlling case on this and said separate versus equal was acceptable in the United States when it came to our schools. 

I listened carefully to your answers, and it sounds as if you agree 

with the concept that we have to stick within the Constitution, but 

you understand that within that Constitution different conclusions 

could be reached. Certainly that’s what Brown teaches us, that in 

that same Fourteenth Amendment they came to the opposite conclusion of Plessy. So can you—for my sake, could you clarify the 

questioning of Senator Cornyn in light of that precedential case in 

Brown? 

Ms. KAGAN. Well, Senator Durbin, I think I guess I would like 

to make two points and insist that they’re not inconsistent with 

each other. The first point is that judges are always constrained by 

law and that the only sources that judges can appropriately look 

to are legal sources, that judges can’t import their own personal 

preferences or their political preferences or their moral values, that 

it would be inappropriate to do so. The role of a judge is to determine, as best that person can, what the law requires and then to 

do that thing. That’s the first proposition. 

But the second proposition is that there are hard legal cases 

where people struggle with these issues, where people struggle 

with what the text, and the structure, and the history of the Constitution, and the precedents that apply that the Constitution requires in a given case. And—and that can happen in—in cases of 

the kind that you suggested in Brown, but it happens really all 

over the place. It happens—it happens not infrequently, I would 

say, at the Supreme Court level. Just because the Supreme Court 

is dealing with cases in which lower courts have disagreed, so usually the cases the Supreme Court hears are the hardest cases. 

Now, sometimes the lower courts disagree, and in fact the case 

is not so hard, the Supreme Court decides 9:0, and it’s all easy. But 

there are some very difficult cases which involve clashes of constitutional principles. 

Senator DURBIN. So if I could follow through on one that I’ve not 

been able to raise, and don’t know how often it’s come up here: the 

Griswold case. Griswold v. Connecticut, in the 1960s, when the 

State of Connecticut was basically regulating the availability of 

family planning and birth control. This case challenged that law as 

to whether Connecticut had that right. 

Basically, the Supreme Court found a word in this Constitution 

which we can’t find, privacy, and said that we have a right to privacy in our homes and families. Some who have analyzed it took 

a look at Justice Douglas’ opinion, writing for the court. We’re kind 

of stunned to see that he even went to the Third Amendment, to 

say that that guaranteed a right to privacy, the right to privacy in 

173 

our homes. The Third Amendment talks about quartering soldiers, 

but he referred to it during the course of that opinion. 

So could you put that decision of Griswold and privacy in the 

context of this explanation you’re giving me? 

Ms. KAGAN. Well, Senator Durbin, I actually think that the—that 

Griswold and that the holding in Griswold does have grounding in 

the constitutional text, and the way most justices have thought 

about this is that the Fourteenth Amendment, the Due Process 

Clause of the Fourteenth Amendment guarantees liberty and that 

it guarantees—when it guarantees such liberty it means more than 

freedom from physical constraints, and it also guarantees more 

than procedural protections, that there is some substantive protection of liberty that’s incorporated within the Fourteenth Amendment of the Constitution, and I think most justices on the Supreme 

Court believe that to be the case. 

Now, there are still very hard questions about what that liberty 

consists of. I think most justices of the Supreme Court do, at this 

point, fully accept the Griswold holding, which suggested that a 

couple’s ability to use contraceptives ought to be up to that couple, 

that the government could not appropriately interfere with that decision, consistent with the Fourteenth Amendment’s protection of 

liberty. But the Liberty Clause of the Fourteenth Amendment surely does give rise to some real disagreement in other cases, the extent to which that sphere extends. Those are one, but not the only 

kind of cases in which there are hard questions to be determined 

by the court. 

Just another very different kind of case which raised this to me 

recently—I mean, it shows the varying contexts in which these difficult questions involving constitutional principles can occur—is a 

case that I argued recently called Holder v. The Humanitarian Law 

Project, which involved this question of the application of the material support statute that Congress passed to combat terrorism as 

to certain kinds of expressive activities, certain kinds of—assistance to terrorist organizations that took the form of speech. 

And when I was arguing that case I was subject to questions, 

and the opposing lawyer also was subject to questions from all the 

justices, that all the justices clearly thought that this was an incredibly hard case because it involved very hard, but competing, 

legal values: the value of free speech on the one hand and the 

value, really, of protecting and defending our country on the other. 

And, you know, that’s a case in which the—this clash of constitutional principles can occur, in which—in which reasonable judges 

could reasonably disagree about the results. So—so to say that 

something is law all the way down, which is absolutely the case, 

that it would be completely improper for a judge to import personal, or moral, or political preferences into the occasion. But that’s 

not to say that law is robotic. It’s not to say that everything is easy 

in the world of constitutional law, or indeed of statutory law. 

Senator DURBIN. Thank you very much, Ms. Kagan. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you very much. 

Senator Coburn. 

Senator COBURN. Thank you. Am I next-to-last, Mr. Chairman, 

or last? What’s our plans? 

174 

Chairman LEAHY. Well, let’s see how we go. 

Senator COBURN. All right. Thank you. 

Well, it’s been a long day for you. Thanks for being here. 

Chairman LEAHY. And I’m concerned about the witness and her 

stamina. Mine is—— 

Senator COBURN. Her reputation says she’s tough as nails. She 

can make it. 

[Laughter.] 

Ms. KAGAN. If you say so. 

Senator COBURN. First of all, you do get the Arthur Murray 

award. You are dancing a little bit, much to my chagrin. I would 

rather you not win. Maybe you should be on ‘‘Dancing With the 

Stars’’, or something. I want to go, first, to a couple of areas. 

One of the people that I respect most in the Senate is somebody 

that’s a polar opposite of me. His name is Russ Feingold, and he 

unabashedly stands for his liberal positions, defends them, doesn’t 

run away from them, talks about them, and stands up and beats 

his chest because he thinks he’s right. And I’ve never walked away 

from my conservative positions. I don’t apologize for my social 

conservativism or my fiscal conservatism. 

One of the things I told you, I want America to know who you 

are. You’ve kind of not allowed us—you know, I don’t know what 

a liberal progressive is. I know what a liberal is, and I think you’re 

a liberal. I think you’re proud enough to defend that. And as Senator Graham said, there’s nothing wrong with that. 

But the point is, is you have a very different belief system than 

most of the people who come from where I come from. And it’s not 

wrong to have that belief system. It doesn’t mean mine’s right and 

yours is wrong. But it is wrong for us not to know what you believe 

about a lot of things. You’re very pro-Choice. You believe in a woman’s right to choose. You believe in gender-mixed marriages, or gay 

marriage. You believe that States ought to recognize those throughout. If I say something that is inappropriate, please tell me. 

Ms. KAGAN. Well, Senator Coburn, I suppose what I would want 

to say at this point is that the way I would vote as a legislator with 

respect to any or all of those issues is—— 

Senator COBURN. I’m not trying to—I’m not trying to label as a 

judge. I’m just saying it’s important. I’m not saying you are not 

going to have the capability to separate those positions. I’m not 

saying that. But it is important. I mean, you’ve told this Committee 

that you think it’s—that there is appropriate time to use foreign 

law. You told this Committee that in your Solicitor General testimony in terms of answers to questions. 

Ms. KAGAN. Can I interrupt you on that one, too? 

Senator COBURN. Well, I’ll give you a chance. 

You’re for—you—you—you have made statements for assisted 

suicide, in terms of that being an appropriate thing. So I’m not saying that that will limit your ability to make great decisions as a 

jurist, and I want to separate that right now. But I don’t want us 

to—the American people have a right to know, what makes up 

Elena Kagan? There’s all these other characteristics, too: smart as 

all get-out, super-accomplished, tough as nails. 

I believe you’re tough as nails. I would not want to be a Supreme 

Court justice with you. I think I’d get run over. You know, I believe 

175 

you have the intellect—superior intellect—and ability to reason, 

and I’ve listened to a lot of it here. But—and again, there’s nothing 

wrong. I love Ross Feingold to death, but we’re totally different. 

That’s one of the things that makes our country great. But it’s not 

something that I—I don’t want you to run away from that. 

That’s who you are. That’s what you—you’ve fought for a lot of 

causes in your life and—and those are a part of who you are. And 

a part of who you are will, in some small instances, influence 

your—I don’t know one judge that can 100 percent separate themselves from who they are as they make a decision, and I don’t think 

anybody knows a judge that can do that. So it’s not unfair to say 

who you are. And it’s not a slam at all, it’s just, you’re different 

than me and you’re different than many of the people that I represent. 

So I wanted to established that and I wanted to give you a 

chance. If you want to say something in response to that, I’ll be 

happy to give you that chance right now. But, you know, I’m a 

proud conservative. I’ll fight anybody on the—you know, I’m for it. 

I’ll debate anybody about what I believe and why I believe it, and 

I think you would do the same, and that’s one of the reasons I have 

admiration for you. 

Do you have a comment about what I’ve said? 

Ms. KAGAN. Well, I suppose a few comments, Senator Coburn. 

Let me take on just a couple of the particulars, and then maybe 

make a more general comment. You said, as Solicitor General, I advocated the use of—of foreign law in some circumstances. I do just 

want to make clear that what I said in those—those questions—— 

Senator COBURN. Here’s your quote exactly. 

Ms. KAGAN—[continuing]. Was—was that, because there are justices on the Supreme Court who believe in the use of foreign law 

in some circumstances, that I would think it was appropriate, as 

an advocate, to argue from foreign law or to cite foreign law in any 

circumstance—— 

Senator COBURN. Well, but that isn’t what you said here. 

Ms. KAGAN. Well, I think, Senator Coburn, with all respect, that 

if you look at the question and you look at the answer, I was 

speaking in my role as an advocate, saying that the primary consideration of an advocate is to count to five and to try to do the 

best the advocate can to ensure that the position that the advocate 

has taken will prevail. 

Senator COBURN. But it’s not your position, because some other 

justices are using foreign law, you have the authority to do that as 

well. 

Ms. KAGAN. As an advocate, to the extent that I think that foreign law arguments will help the government’s case, then I will use 

those foreign law arguments, is what I—— 

Senator COBURN. All right. Let me read something to you. As is 

obvious, I’m not a lawyer. OK. It’s pretty obvious. But Article 3, 

Section 2 says this: ‘‘The judicial power shall extend to all cases in 

law and equity arising under this Constitution, the laws of the 

United States, and the treaties made.’’ 

Nowhere—nowhere—in our Constitution does it give the authority for any judge, chief justice of the Supreme Court, any jurist on 

the Supreme Court, or any other court, to reference foreign law in 

176 

determining the interpretation of what our statutes or our Constitution will be. So this is an area where we have grasp, where 

our judicial majority, much like the Israeli judge, we start reaching 

beyond the Constitution. You said it was all law. You said the determination will always be law. It’s down to law, law, law, the earliest questions that you were asked in this hearing. Well, this is 

the founding document of what the law is. Nowhere that I can find, 

in this writing or in these guys’ writing, says anything about using 

foreign law. 

So please explain to me why it’s OK sometime to use foreign law 

to interpret our Constitution, our statutes, and our treaties. 

Ms. KAGAN. Senator Coburn, I think for the most part I wouldn’t 

try to convince you of that because I don’t think that foreign law 

is appropriate as precedent or as an independent basis if support, 

you know, in the vast majority of legal questions. Now, I suggested 

to you a few that specifically might reference international considerations, such as, you know, the right to receive Ambassadors or 

something like that. Even there, I think the citations would not be 

a precedent. They would not have binding weight of any kind. But 

they might be relevant to interpretation of—— 

Senator COBURN. Relevance is about getting knowledge and gaining knowledge, but you have a different guide. The oath that you’ll 

take as a justice of the Supreme Court is to uphold the Constitution and our statutes. 

Ms. KAGAN. Well, I think I agree with you on that, Justice—Senator Coburn. 

[Laughter.] 

Senator COBURN. Don’t worry, I will never get there. 

[Laughter.] 

Senator COBURN. All right. Let me move on then, if I—if I may, 

if I can keep playing. 

One of the things that you said today really concerned me, and 

let’s see if I’ve got the—you were being asked a question. You said, 

‘‘But in other cases, original intent is unlikely to solve the question, 

and that might be because the original intent is unknowable or 

might be because we live in a world that’s very different from the 

world in which the Framers lived. In many circumstances, precedent is the most important thing.’’ Is this precedent more important than original intent? 

Ms. KAGAN. Well, Senator Coburn, let me give you an example. 

I’m not sure if it was an example I used before or not, but in the 

First Amendment context, which is a context I’ve—I’ve—I’ve written about a good deal, it’s fairly clear that the First Amendment 

doctrine that’s been established over 100 years departs significantly from the original intent of the Framers. And here’s one example, is that I think that the Framers would never have dreamed 

that the First Amendment would in any way protect people against 

libel suits, that the First Amendment had anything to do with libel. 

So when the court said, in New York Times v. Sullivan, that a 

public figure could not sue the New York Times and claim damages 

for libel without meeting a very high bar, without meeting the so 

called ‘‘actual malice’’ standard, I think that was something that 

the Framers would not have understood. 

177 

Senator COBURN. Why don’t you think they wouldn’t have understood that? I mean—— 

Ms. KAGAN. Well, I think that their—— 

Senator COBURN. I mean, they had—they had print back then. 

I mean, we didn’t start that early in terms of formation of our 

country. 

Ms. KAGAN. I think the—I’m sorry for interrupting. I think that 

the historic evidence is very clear that the Framers didn’t think 

that the First Amendment at all interfered with libel suits. Now, 

over time, as—as—as courts have applied the First Amendment to 

different contexts, to different circumstances, have seen different 

factual problems, have had to consider different cases, I think that 

the court sensibly thought that the principles that are embodied in 

the First Amendment could not be protected unless the decision in 

New York Times v. Sullivan was issued, unless the—— 

Senator COBURN. So—so let me go forward with that. Who can 

change precedent? 

Ms. KAGAN. Well—— 

Senator COBURN. Let’s have a little law lesson here. Who can 

change precedent? 

Ms. KAGAN. Well, the court can, but it’s a very high bar. 

Senator COBURN. OK. I know, but they can, right? 

Ms. KAGAN. It—the court can change, can overturn a ruling, but 

it’s a very high bar. The precedent—— 

Senator COBURN. What does the high bar mean to the average 

person watching this hearing today? 

Ms. KAGAN. Well, that—that—that it has to be a very extraordinary circumstance or a very unusual circumstance for a court to 

overturn a precedent, and the usual circumstances that are mentioned are where the precedent has become completely unworkable, 

where it’s clear that the precedent just is producing massively inconsistent results or—— 

Senator COBURN. So, for example, Brown v. Board of Education. That upset precedent, Plessy v. Ferguson, on its ear, didn’t it? 

Ms. KAGAN. It did, Senator Coburn. I think that—— 

Senator COBURN. So what was the purpose in changing the 

precedent? 

Ms. KAGAN. You know—— 

Senator COBURN. Was it to change Plessy v. Ferguson or was it 

to go back to original intent? That’s—that’s—that’s why I’m having 

trouble with what you said, because, you know, I know our Framers weren’t perfect, but I think their motivations were really pure. 

And for us to have a justice that says precedent is more important 

than original intent is going to give a lot of people in this country 

heartburn, because what it says is our intellectual capabilities are 

better than what our original founding documents were, and so 

we’re so much smarter as we’ve matured that they couldn’t have 

been right. That’s dangerous territory for confidence in the court. 

Ms. KAGAN. Senator Coburn, I think what I’m trying to say is 

that courts appropriately look to both kinds, both keys to constitutional interpretation, that courts appropriately look to original intent, that courts appropriately look to precedent, and that it depends on the provision of the Constitution, it depends on the case, 

it depends on the issue as to whether—which—as to which one of 

178 

those is most helpful, and that it’s a pragmatic approach, looking 

case by case, to try to figure that question out. 

And I think what I’m saying—I would say two things about it: 

it’s both extremely descriptive of what the court has done, that the 

court in—— 

Senator COBURN. Historically speaking. 

Ms. KAGAN. Historically speaking and currently. The second 

point I would make is that, in fact, when the chief justice was sitting here, Chief Justice Roberts, he stated the same thing, the 

same principle that I’m trying to state, is that one should approach 

the question of constitutional interpretation pragmatically, without 

a single, over-arching theory, without something that says you always look to the specific original intent, or you always look to 

something else, that sometimes the original intent controls and 

other times it may be unknowable or it may be far removed from 

the current problems we face. 

Senator COBURN. But that’s a—but that’s a judgmental decision, 

correct? You’re going to—you’re going to make a judgment about 

whether original intent doesn’t apply or is unknowable, and what 

may seem to be unknowable to you may seem to be knowable to 

another judge. Correct? 

Ms. KAGAN. Senator Coburn, I don’t disagree with you that judging requires judgment. 

Senator COBURN. Yes. 

Ms. KAGAN. And—— 

Senator COBURN. Well, that’s the whole basis of why we’re having this hearing, is where’s the judgment going to come from, because it takes me to the next thing that you said that I have heartburn with. ‘‘I have great difficulty in the ability to take off my advocate hat and put on my judge’s hat.’’ And my question to you is, 

I would have the same problem. I will tell you, how are you going 

to take off your political hat? 

What are the processes with which Elena Kagan is going to take 

off this advocacy of a liberal position in this country as she becomes 

a justice of the Supreme Court so that that advocacy hat is gone 

and only the judgment hat is left? How are you going to do that? 

You’ve already admitted you’re going to—you have trouble doing 

that now just from a Solicitor General standpoint. 

Ms. KAGAN. Senator Coburn, my—the advocate’s hat that I was 

referring to was not a political hat, it was the hat that I wear as 

Solicitor General of the United States, representing the interests of 

the United States. That has nothing to do with my own political 

views. It has to do with a long and historic tradition that the Solicitor General’s Office has of representing the long-term interests of 

the U.S. Government. 

Senator COBURN. Then let’s move back to your political hat. How 

are you going to take that off? 

Ms. KAGAN. Senator Coburn, that hat has not been on for many 

years. 

[Laughter.] 

Ms. KAGAN. Senator Coburn, I know that, you know, some people 

have said, oh, she’s a political person. I’ve had a 25-year career in 

the law. Of that 25-year career, 4 were spent in the Clinton White 

House. This was a period of time that I am proud of and that I feel 

179 

as though, you know, I helped to serve the American people for 

President Clinton. 

But this is by no means the major part of my legal career. The 

major part of my legal career has been as a scholar and teacher 

of constitutional and administrative law, has been, you know, 

teaching, by this point, many thousands of students, has been writing about constitutional and administrative law issues. 

Senator COBURN. Let me ask you another question, then, on it. 

This is to inquire—this is softball. OK. What do you say—— 

Ms. KAGAN. You promise? 

Senator COBURN. I promise. 

[Laughter.] 

Ms. KAGAN. Because it’s getting late. 

Senator COBURN. I told you, you’re terrific. What do you say to 

people who are worried that your political positions would influence 

your judicial opinions? What do you say to the average American 

that’s sitting here watching this right now? What assurance, other 

than knowing Elena Kagan, that we know who you are, we’ve met 

you, we’ve read about you, both positive and negative? What are 

the assurances that you would tell the American people, that you 

can trust me to make a pure jurist decision, that I’m not going to 

be biased? What is it that you would tell them? 

Ms. KAGAN. Well, I hope that they would listen to this hearing 

and come away with that view, come away with a person who believes that it’s—it’s all about law when you put on a judge’s robe. 

It’s not about politics, it’s not about policy, it’s all about law and 

making your best judgments about what the law require. 

And that is the pledge that I said was the only pledge that I 

would make yesterday and—and—and I’ll make it again now. But 

I think it’s consistent with—with—with the way I’ve approached 

my life, in a fashion that respects the rule of law, in a fashion 

that’s temperate and respectful of other people’s views, and, you 

know, with respect, which I don’t think is partisan in the kinds of 

ways that a few people have suggested. 

Senator COBURN. You can understand why some of us, when Justice Sotomayer told us—I mean, her words were, ‘‘I think I agree 

with you, Senator Coburn, we shouldn’t use foreign law,’’ and then 

in one of her opinions she’s embracing the use of foreign law in a 

decision. You know, we become skeptical because—and as I said 

earlier and as I said on the floor speech about these hearings, is, 

you know, it really isn’t going to matter what you said, because 

once you’re there you’re there and we have very little ability to 

change it. 

So when we see histories and then we see statements that don’t 

coincide, and quite frankly, you haven’t done that to us that I know 

of yet today, but you can understand the skepticism we might 

have, and especially in the fact that many on the other side of the 

aisle, the implication has been that the same thing by Aleto and 

Roberts, that they weren’t straightforward, that in fact they didn’t 

keep their word on stare decisis. 

So you understand what we’re battling with, and that’s why I’m 

not even sure the hearings are a great thing. I think we ought to 

do it the way we used to do it, is sit down and talk and spend a 

lot of time with you and get a comfort level to where we feel like 

180 

we really get to know you and what you believe and what your actions will be. 

Let me go to one other thing. Senator Cornyn attempted to ask 

this, and I think it’s a really important question. If I wanted to 

sponsor a bill and it said, Americans, you have to eat three vegetables and three fruits every day, and I got it through Congress and 

it’s now the law of the land, you’ve got to do it, does that violate 

the Commerce Clause? 

Ms. KAGAN. Sounds like a dumb law. 

[Laughter.] 

Senator COBURN. Yes. I’ve got one that’s real similar to it I think 

it equally dumb. I’m not going to mention which it is. 

Ms. KAGAN. But I think the question of whether it’s a dumb law 

is different from whether the question of whether it’s constitutional, and—and—and I think that courts would be wrong to strike 

down laws that they think are—are senseless just because they’re 

senseless. 

Senator COBURN. Well, I guess the question I’m asking you is, do 

we have the power to tell people what they have to eat every day? 

Ms. KAGAN. Senator Coburn, I think—— 

Senator COBURN. I mean, what is the extent of the Commerce 

Clause? We have this wide embrace of the Commerce Clause, 

which these guys who wrote this never, ever fathomed we would 

be so stupid to take our liberties away by expanding the Commerce 

Clause this way. Matter of fact, let me spend just—I’ve got a little 

time. Let me just read you what they said, because they actually 

said if the executive branch and the judiciary branch wouldn’t enforce their limited view of the Commerce Clause, that in fact we 

needed to change the Members of the Congress so that they would. 

And let me read it to you: ‘‘If it be asked, what is to be the consequence of the——’’ 

Ms. KAGAN. I’m sorry, Senator. Where is this from that you’re 

reading? I’m sorry. 

Senator COBURN. This is the Federalist Papers. 

Ms. KAGAN. OK. 

Senator COBURN. OK. This is number 44. I presume you’ve read 

this book? 

Ms. KAGAN. I have. 

Senator COBURN. I thought you might have. 

Ms. KAGAN. It’s a great book. 

Senator COBURN. It is. Actually, I hope you’ll read it a lot as a 

justice, if you become one. ‘‘Constitution exercise powers not warranted by its true meaning.’’ They’re sitting there warning us to 

not do things. ‘‘What are you going to do about it? And I answer, 

the same as if they should misconstrue or enlarge any other power 

vested in them as if the general power had been reduced to particulars and any one of these were to be violated. The same, in short, 

as if the State legislature should violate their respective constitutional authorities. In the first instance, the success of the 

usurptation will depend on the executive and judiciary departments.’’ In other words, you become complicit in not slamming it 

down and saying, Congress, you’re going the wrong way. 

I would make the case today that we find ourselves in trouble 

as a Nation because the judiciary and the executive branch has not 

181 

slapped Congress down on the massive expansion of the Commerce 

Clause. ‘‘Which are to expound and give effect to the legislative 

acts, and in the last resort a remedy must be obtained from the 

people, who can, by the election of more faithful representatives, 

annul the act of the usurpers.’’ 

So I go back to my original question to you: is it within the Constitution for me to write a bill, having been duly elected by the people of Oklahoma, to say, and get it signed by the President, that 

you have to eat three fruits and three vegetables every day? 

Ms. KAGAN. Well, Senator, first, let me say about the Federalist 

Paper quote that you read, that it is absolutely the case that the 

judiciary’s job is to, you know, in Marbury v. Madison’s famous 

phrase, to say what the law is and to make sure—I think I’ve— 

I’ve talked about it as policing the constitutional boundaries as— 

and making sure that Congress doesn’t go further than the Constitution says it can go. It doesn’t violate individual rights and also 

doesn’t act outside its enumerated authorities. We live in a—in a— 

in a government in which Congress—Congress’ authorities are enumerated in Article 1 of the Constitution, and Congress can’t act except under one of those heads of authority. 

Now, as I talked about with Senator Cornyn, the Commerce 

Clause has been interpreted broadly. It’s been interpreted to apply 

to regulation of any instruments or instrumentalities or channels 

of commerce, but it’s also been applied to anything that would substantially affect interstate commerce. 

It has not been applied to non-economic activities, and that’s the 

teaching of Lopez and Morrison, that the court—that the Congress 

can’t regulate non-economic activities, especially to the extent that 

those activities have traditionally been regulated by the States, 

and I think that that would be the question that the court would 

ask with respect to any case of this kind. 

But—but I do want to sort of say again, you know, we can come 

up with sort of, you know, just ridiculous-sounding laws, and the— 

and the—and the principle protector against bad laws is the political branches themselves. And I would go back, I think, to Oliver 

Wendell Holmes on this. He was this judge who lived, you know, 

in the—in the early 20th century. Hated a lot of the legislation that 

was being enacted during those—those years, but insisted that if 

the—if the people wanted it, it was their right to go hang themselves. 

Senator COBURN. OK. 

Ms. KAGAN. Now, that’s not always the case, but—but—but there 

is substantial deference due to political—— 

Senator COBURN. I’m running out of time. I want to give you another condition. What if I said that eating three fruits and three 

vegetables a day would cut health care costs 20 percent? Now we’re 

into commerce. And since the government pays 65 percent of all 

the health care costs, why isn’t that constitutional? 

Ms. KAGAN. Well, Senator Coburn, I—I feel as though the principles that I’ve given you are the principles that the court should 

apply with—— 

Senator COBURN. Well, I have a little problem with that because 

if we’re going to hang ourselves, as our founders—three of the critical authors of our Constitution thought the judiciary had a—had 

182 

a reason to smack us down. And as Oliver Wendell Holmes, if we 

want to be doing stupid stuff we can do stupid stuff. I disagree. 

I think—you know, and that’s not activism, that’s looking at the 

Constitution and saying, well, we’re going to ignore it even if it 

does expand the Commerce Clause, because the Commerce Clause 

is what has gotten us into a place where we’ll have a $1.6 trillion 

deficit that our kids’ future has been mortgaged, that we may 

never recover from. That’s not an understatement at all. In 25 

years, each of our kids are going to owe $1.113 million and pay interest on that before they do anything for themselves or their kids. 

So the fact is that we have this expansive clause and we have 

to have some limit on it. And if the courts aren’t going to limit it 

within the original intent, instead of continuing to rely on precedent of this vast expansion of it, the only hope is, is that we have 

to throw out most of the Congress. 

But the point is, the original intent is that you wouldn’t ignore 

their original intent. What we found ourselves today on the Commerce Clause is that, through a period of precedent-setting decisions, we have allowed the Federal Government to become something that it was never entitled to become, and with that a diminishment of the liberties of the people of this country, both financially and in terms of their own liberty. 

Ms. KAGAN. Well, Senator Coburn, I—I guess, a few points. The 

first, is I think that there are limits on the Commerce Clause of 

the ones I suggested, which are the ones that are articulated, were 

articulated by the court in Morrison and in Lopez, which are primarily about non-economic activity and Congress not being able to 

regulate non-economic activity. 

I guess the second point I would make, is I do think that very 

early in our history, and especially I would look to Gibbons v. 

Ogden, where Chief Justice Marshall did, in the first case about 

these issues, essentially read that clause broadly and provide real 

deference to legislatures and provide real deference to Congress 

about the scope of that clause. Not that the clause doesn’t have any 

limits, but that deference should be provided to Congress with respect to matters affecting interstate commerce. 

And I guess the third point is just to say that I think the reason 

for that is—is that $1.6 trillion deficit may be an enormous problem. It may be an enormous problem, but I don’t think it’s a problem for courts to solve. I think it’s a problem for the political process to solve. 

Senator COBURN. You missed my whole point. We’re here because the courts didn’t do their job in limiting our ability to go outside of original intent on what the Commerce Clause was supposed 

to be. Sure, you can’t solve the problem now, but you help create 

it as a court because you allowed something other than what our 

original founders thought was a legitimate role for the Federal 

Government. 

Chairman LEAHY. If the—if the—— 

Senator COBURN. I thank the Chairman. I will yield back and I’ll 

follow up on the next round. 

Chairman LEAHY. You will yield back. Your time is up. I didn’t 

know if you wanted to respond to that. 

183 

Did you want to take a break before we go to some of the others, 

or—— 

Ms. KAGAN. Some of the others? 

[Laughter.] 

If it is some of the others, I definitely want to take a break. If 

it is one of the others, we can do that. 

Chairman LEAHY. I’ll tell you what, let’s go one of the others and 

see where we stand after that. Senator Cardin. You’re doing such 

a great job, we don’t want you to leave. 

[Laughter.] 

Senator CARDIN. Solicitor General Kagan, I’m one of the others. 

Let me welcome you to the Committee. 

I have been amazed and disappointed as to how the brilliant 

trail-blazing legal career of Thurgood Marshall has been portrayed 

by several of my colleagues. Justice Marshall came from Baltimore, 

Maryland, the city where I was born, in the State of Maryland that 

I have the honor of representing in the U.S. Senate. Justice Marshall was one of the great Americans that have come from Maryland. We are very proud of what he’s meant to this country. 

It’s interesting that this week on July 2nd we’ll celebrate his 

92nd birthday. And I must tell you, we’ve had a great deal of discussion about background. As you know Justice Marshall was the 

great grandson of a slave. And he grew up in a segregated country. 

I talked during my opening statements about how I remember 

attending segregated public schools in Baltimore City. I also remember swimming pools and theaters and amusement parks that 

were restricted as to who could attend, who could be there. So we 

talk a lot about empathy, we talk a lot about background, we talk 

about how important that is, but on behalf of the millions of Americans who have benefited from Thurgood Marshall’s public service, 

I’m glad he brought his real world experiences to public service. He 

helped make a more perfect union and made a real difference in 

the lives of Americans. 

I agree with the NAACP Legal Defense Fund in their release 

where they say, simply put, Thurgood Marshall helped make our 

union more perfect. And the legacy illuminates the highest possibilities for all Americans, yesterday, today and tomorrow. 

Yesterday I talked about how we can assure that the public understands how important the decisions of the Supreme Court are 

in their lives. And how I want American citizens to understand just 

how important your role will be on the Supreme Court of the 

United States. I just one more time express this concern about following legal precedent and activism. I listened to Senator Coburn 

and I must tell you, I think his definition of original intent reminds 

me of some of my colleagues’ definition of activism. They use it for 

a particular purpose. Judicial activism is OK if you agree with the 

results. And I think it’s the same thing with original intent. It’s OK 

if that’s the result that you want. 

But I want a Justice who is going to follow legal precedent. I 

want a Justice who believes that it’s up to Congress to legislate, 

not the courts. I want a Justice that is going to follow in the best 

traditions of protecting individuals against the abuses of government and special corporate interests. That’s what I’m looking for. 

184 

It’s very difficult for us to legislate—to pass legislation to expand 

rights. It’s extremely frustrating when we finally get it done and 

then see the courts reverse legal precedent, reverse our Congressional intent and take away those rights that affect people of our 

nation. 

So, when we look at our Constitution and when it was created, 

citizens were defined very differently than they are today. Women 

and African-Americans were excluded from the definition of ‘‘we 

the people.’’ But the real triumph of our Constitution is that we’ve 

overcome these faults. 

Chief Justice Roberts said, ‘‘I think the Framers, when they used 

broad language like ‘liberty’, like ‘due process’, like ‘unreasonable’ 

with respect to search and seizures, they were crafting a document 

that they intended to apply in a meaningful way down through the 

ages.’’ This is the same point that you have raised before this Committee about how times change and how does the Constitution 

apply to current circumstances. 

The strength of our Constitution and the Supreme Court is that 

it advances rights envisioned by the Framers to current times. 

Now, it’s been a bumpy road on Civil Rights. We’ve made 

progress and we have moved in the wrong direction. We’ve talked 

a lot about Plessy v. Ferguson. It might have been a pragmatic decision by the Court in its time, but it was fundamentally flawed. 

There is nothing equal by separate and we know that today. 

Then came Brown v. Board of Education, one of the proudest moments in the history of the Supreme Court and indeed one of the 

proudest moments in the history of the United States. The Supreme Court decision had real impact on real people’s lives. 

Your opening statement gives me comfort that you will follow in 

the best traditions of the Supreme Court in meeting the challenges 

of change. You talked about a fair shake for every American. I’m 

going to mention that a couple times during our questioning. You 

also talked about the Supreme Court, of course, which has the responsibility of ensuring that our government never oversteps its 

proper bounds or violates the rights of individuals. The fundamental opportunities of America depend upon those goals. Your 

grandparents and mine came to this country because of the opportunities this country enshrined in our Constitution. 

In preparation for this hearing I came across a Supreme Court 

case involving educational opportunity that you happened to be the 

clerk for the Justice who wrote the dissenting opinion, Justice Marshall. In Kadrmas v. Dickinson Public Schools, Justice Marshall 

said—and I’m quoting, ‘‘Today the Court continues to retreat from 

the promise of equal educational opportunity by holding that a 

school district’s refusal to allow an indigent child who lives 16 

miles from the nearest school to use a school bus without paying 

a fee does not violate the Fourteenth Amendment’s equal protection 

clause.’’ 

Now, I mention that because I think Justice Marshall was looking at factual circumstances that were not present 10, 15, 20 years 

ago. But he was trying to use current circumstances under our law 

to advance what we all believe was the Framers’ intent of ‘‘we the 

people.’’ How do you believe the Framers intended the Constitution 

185 

to provide for the protection of people against abuses of government 

or special corporate interests? 

Ms. KAGAN. Well, Senator Cardin, I think that the Constitution 

is a kind of genius document in that while certain of its provisions 

are quite specific and, you know, it just doesn’t matter how times 

and circumstances change. We still have a Senate and we still have 

a House of Representatives and they’re still elected the same way 

and all manner of things like that that the Framers and then in 

subsequent amendments and especially with respect to the Civil 

War amendments, the Fourteenth—Thirteenth and Fourteenth and 

Fifteenth Amendments wrote some provisions broadly, generally. 

And this goes back to what Chief Justice Roberts said in that quote 

that you mentioned. 

And I think actually if I remember it correctly, Chief Justice 

Roberts said, ‘‘it would be wrong to give general provisions a 

crabbed interpretation.’’ That the point of these general provisions 

is to ensure that the principles that the Framers held so dear or 

that the ratifiers of the Fourteenth Amendment held so dear, that 

those principles would continue to apply throughout the ages for 

our posterity. 

And that’s so with respect to, you know, a number of ways in 

which the government can deprive people of equal protection of the 

laws or violate people’s liberty. 

Senator CARDIN. Well, I agree with that comment. Last year the 

Supreme Court chipped away at the existing precedent in Brown 

v. Board of Education. So these are real concerns. I think the 

Framers of our Constitution would have been proud of Brown v. 

Board of Education even though at that time, as you know, African-Americans were not included in the Constitution in the full 

sense. But in that case of Parents v. Seattle School District, the 

Court held that voluntary integration programs were unconstitutional. Chipping away at Brown v. Board of Education, Justice 

Breyer writing the dissent said, ‘‘what has happened to stare decisis? .’’ 

I noted Senator Cornyn talked about following legal precedent. 

Well, Justice Breyer was concerned about that. He said, ‘‘to invalidate the plans under review is to threaten the promise of Brown. 

The plurality position, I fear, would break that promise. This is a 

decision that the Court and nation will come to regret.’’ 

Do you believe that decisions like Brown v. Board of Education 

are still relevant today, and are precedent for the Court to carry 

out what that Court did in advancing we the people for all? 

Ms. KAGAN. Senator, I hope and I know that Brown v. Board of 

Education and the principles that Brown v. Board of Education set 

forth are still relevant today and they’re the principles that the 

Equal Protection Clause has set forth. And the idea of equality 

under law is a fundamental American ideal, a fundamental American value or fundamental American constitutional value. And one 

of the Court’s most important missions is to ensure that that value 

remains strong over time. 

Senator CARDIN. Well, let me move on from education to voting 

rights on the Civil Rights agenda. It took a long time. A lot of people worked hard, people gave up their lives in order that we have 

the right to vote and expanded the right to vote. It took constituVerDate Nov 24 2008 12:24 Aug 23, 2011 Jkt 067622 PO 00000 Frm 00195 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\67622.TXT SJUD1 PsN: CMORC
186 

tional amendments and even the Civil Rights Act of 1964 failed to 

address the hurdles that people used to exclude black voters and 

poor white voters, but Congress passed the Voting Rights Act of 

1965. So it was difficult for us to expand voting rights. And we 

have challenges today as to whether we can do what we have done. 

There was just recently a Supreme Court decision of Northwest 

Austin Mud that didn’t directly deal with the issue of whether Congress has the right to continue the covered jurisdictions with 

preclearance. But it raises the question as to whether Congress has 

the constitutional power to protect minority voting rights. 

So my question to you is, you have said several times without 

reference to this specific issue, that you will give due deference to 

Congress. I want to put it in context to where we believe there is 

need to expand protection under our Constitution. And will you 

give due deference to Congressional actions where Congress is pretty clear. This is not where Congress is saying X, and you know 

what X, this is not substituting a Y for an X, which I heard you 

say you don’t believe is right. Will you give due deference to Congress where we are expanding protections under the Constitution? 

Ms. KAGAN. Senator Cardin, you raised the question of the scope 

of Congress’s Section 5 power; Section 5 of the Fourteenth Amendment which gives Congress the ability to enforcement the Fourteenth Amendment. And the scope of that power has been an issue 

in several recent cases. In the case of Bernie, which I believe Senator Specter referred to earlier, the Court said that it wanted to 

distinguish between Congress’s ability to enforce—to remedy Fourteenth Amendment violations and also to prevent Fourteenth 

Amendment violations on the one hand, which was appropriate, 

and on the other hand what the Court found in Bernie was not appropriate, was that Court acting under that Section Five power to 

change that constitutional rights that had been found by the Court. 

So that’s the line that the Court has developed in Bernie and subsequent cases which is, Congress clearly has the authority to remedy and to prevent Fourteenth Amendment violations, but doesn’t 

have the authority essentially on its own to change the meaning of 

the Fourteenth Amendment. 

Senator CARDIN. And I understand the point that was before the 

Court. I guess my point is that voting restrictions today still exist. 

And we who are involved in the political system understand that 

directly. 

Ms. KAGAN. And I should say, of course, the Fifteenth Amendment has its own enforcement provision and the Voting Rights Act 

was passed under that enforcement provision. I think it’s undeniable that the Voting Rights Act has been a major historic achievement for this nation. 

There, of course, may be a case that will come before the Court 

on the question of the constitutionality of certain provisions or the 

Voting Rights Act generally. That case—that issue was potentially 

before the Court last year. The Court did avoid it and resolved the 

case on statutory grounds. It was a case that the Solicitor General’s 

Office filed a brief on in strong support of the Voting Rights Act. 

But it’s not likely to be the last time that the Court will consider 

those issues. And Congress clearly has an important role in this 

187 

area and the exact scope of that role is going to be addressed in 

future cases. 

Senator CARDIN. Thank you for that response. I find that comforting. I’d just point out that we live through the election procedures and we see obstacles in the way of voters. And my own election in 2006, it was undeniable that the lines in the predominantly 

African American voting places were three, four, five times as long 

as other communities. That there was targeted information sent 

out to tell voters in minority districts to vote on Wednesday rather 

than Tuesday. There were direct efforts made to diminish minority 

voting. It exists today. And Congress is trying to take action in this 

area. I just urge you, because voting is so fundamental to our system, that when Congress acts to try to expand rights, the statements you’ve made about deference to the Congressional branch, I 

think are particularly important. 

Let me move to—I just want to cover very quickly because I 

know Citizens United has been covered over and over again here. 

But to me it’s a fundamental question because voting doesn’t mean 

much unless you have fair and open elections. And President Lincoln said, over 100 years ago, ‘‘I see in the near future a crisis approaching that unnerves me. It causes me to tremble for the safety 

of my country. Corporations have been enthroned and an era of corruption in high places will follow. And the money power of the 

country will endeavor to prolong its reign by working upon the 

prejudices of people until the wealth is aggregated in a few hands 

and the republic is destroyed.’’ 

So I do worry about the impact of corporate contributions to the 

integrity of our election system. I chair the Helsinki Commission 

which monitors human rights internationally. One of our principal 

objectives is to make sure we have free and fair elections in Europe, North America, and Central Asia, while my colleagues are 

now monitoring U.S. elections. They want to make sure, as we 

have signed on to the accords, that our elections are free and fair. 

My point is that Citizens United to many of us is a step backwards. 

And once again Congress has acted in this area and there’s legal 

precedent. And I know this is a case that’s already been decided 

and we’re taking action, but I just want to weigh in to say that I 

think it’s critically important that we—that you follow, when you 

can, legal precedent and Congressional dictate. 

Let me just change to a different subject that is on everyone’s 

mind today and that’s what’s happening in the Gulf of Mexico. As 

a Senator from a coastal state of Maryland, I am deeply concerned 

about the damages that have been caused to our environment, to 

business, individuals, the loss of life in the Gulf of Mexico. Congress has passed environmental laws. Again, they weren’t easy. We 

passed the Clean Air Act, the Clean Water Act, the National Environmental Policy Act, the Endangered Species Act, the Safe Drinking Water Act, and SuperFund. 

Senator Feinstein questioned you as to the legislative intent to 

have certain areas covered in our wetlands, in which the Rapanos 

Supreme Court case was a huge step backwards, again, rejecting 

Congressional intent. 

Then in Exxon v. Baker we saw a restriction on the full coverage 

of damages in the Exxon Valdez matter. In my view the Court has 

188 

weakened environmental protections that were hard fought here in 

Congress. 

Do you agree that the Federal Government working with the 

states has a unique role in protecting our environment and that 

the government must hold public lands and waters in trust for future generations? And will you give deference to Congress as we attempt to carry out that mandate? 

Ms. KAGAN. Well, Congress certainly has as broad authority 

under the Constitution to enact legislation involving protection of 

the environment. And I think that when Congress enacts such legislation the job of the Courts is to construe it consistent with Congressional intent. 

Senator CARDIN. Thank you. I also want to cover some employment cases because I think, again, we’re seeing a chipping away of 

the rights. A couple of my colleagues have talked about the Gross 

case which the Court rejected the long-standing tests to deal with 

age discrimination in the workplace. I could also talk about the 

Ledbetter case in which the Court on gender discrimination took 

the test, which I find incredible to believe, that Lilly Ledbetter was 

supposed to know about her discrimination even though it was impossible to discover it and she was barred by Statute of Limitations. 

Now, we’ve corrected the Lilly Ledbetter case by further Congressional action. But you talk about how we can make sure that every 

American gets a fair shake. How do I explain to a 50-some year old 

woman with a couple children who is fired after 25 years in the 

workforce because the employer wants to hire someone half her age 

and pay one-third the salary? How is she getting a fair shake when 

the Supreme Court changes the tests in order to avoid the current 

protections we thought we had in law against age discrimination? 

Ms. KAGAN. Well, Senator Cardin, I’ve pretty consistently said 

that I don’t want to, you know, grade, or give a thumbs-up or a 

thumbs-down on particular Supreme Court cases. I do think that 

with respect to any statute, discrimination statutes, or any other, 

that the job of the Court is to construe the legislation as Congress 

meant for the legislation to be construed. And that’s difficult sometimes, but that’s the goal is to make sure that the Court is not 

doing, you know, deciding a case in a way in which, you know, it 

would like the statute to read, that the Court is deciding the case 

according to the way Congress wanted the statute to be applied. 

Senator CARDIN. Well, thank you. I think that was a pretty complete answer. And, by the way, I just really want to thank you for 

the complete answers you’re giving us. In response to Senator Graham, you gave us high grade, I want to give you high grades on 

being responsive to the questions. I think you’ve been very direct 

where you can be and I thank you for that openness to the committee. 

I want to cover one other area of inclusion on ‘‘we the people’’ including all. Right now in 30 states an individual can still be fired 

for their sexual orientation where he or she has no recourse. An 

alarming 39 percent of the self-identified LGBT workers in American have reported some form of workplace harassment or discrimination. And yet they have no legal recourse in nearly two-thirds of 

our states. This is contrary to the legal expectation of fairness, or 

189 

as you say, a fair shake for all Americans. And Congress has an 

obligation to stop this discrimination. 

The state of Maryland has taken action and I congratulate our 

legislature and Governor for acting in this area. We have a similar 

effort pending in the Congress of the United States and it has the 

support of 202 cosponsors in the House of Representatives and 45 

cosponsors in the Senate and I’m proud to be an original cosponsor 

that would provide protection in the workplace for LGBT. 

My reason for bringing this up is that we expect to pass this bill. 

It’s not going to be easy, but we expect to get this protection 

passed. I am certain there will be a legal challenge. We usually 

find that the case. Once, again, do you believe that to clarify the 

definition of ‘‘we the people’’ so that all Americans are included in 

that and have protection of law and, again, will you give deference 

to Congress as we try to create a more perfect union? 

Ms. KAGAN. Well, the policy decision, Senator Cardin, is up to 

Congress. And the questions that might come before the Court are 

questions if they’re statutory in nature, they would be appropriately addressed by the Court asking what Congress intended. 

Senator CARDIN. Thank you. I wanted to save about 5 minutes 

at the end for somewhat easier rounds of questions so you can 

catch your breath a little bit. You’ve been going all day. So I want 

to talk about pro bono. 

And I want to congratulate you for your work at Harvard in expanding clinical experiences for your students. But I want to tell 

you the challenges that we have. According to recent Legal Service 

Corporation studies, each legal aid attorney serves over 6,800 people. There is one private attorney for every 525 people in the nation. This is not equal justice under the law. 

Recent studies have shown that for every person who receives 

free legal assistance at least one person is turned away due to lack 

of resources at the agencies. And this has only gotten worse as our 

economy has gotten worse. Many of the resources which legal aide 

bureaus depend upon are the IOLTA funds which, as you know, 

have become much more difficult for legal service agencies to get. 

So unfortunately today many low-income individuals are denied the 

opportunity for legal services, which is hardly equal justice under 

the law, which is what I think we all want to achieve. 

And the type of cases they handle are like pregnant women who 

are being battered by their husbands, helping homeowners facing 

foreclosure by allowing them to stay in their homes, helping employees who are discriminated against in the workplace due to race 

or gender or religious preference, helping people with disabilities 

and those types of cases. 

During my years I chaired the Maryland Legal Services Corporation and I helped to establish the clinical programs at Maryland 

Law School which I found to be very helpful in training new lawyers who are sensitive to public service but also providing a great 

deal of services for people who needed help. So now looking around 

the country, 36 law schools have pro bono or public service requirements. 

As Dean Kagan, I know that you instituted major improvements 

of expansion in the law school clinics while at Harvard. Harvard 

law students must perform at least 40 hours of law-related public 

190 

interest work including working on behalf of people who cannot afford to pay for legal services. Can you tell us just briefly a little 

bit about your experiences at Harvard Law School to expand the 

number of students participating in clinical programs and what impact that had on providing help to people who otherwise would not 

have received adequate representation? 

Ms. KAGAN. Senator Cardin, this is one of the things I worked 

hardest on at Harvard along with a great many other people. And 

I think we had some significant successes which is good because 

the need is so vast in this area that there is so much need for legal 

services, you know, of all different kinds. Of people who have housing problems or have employment problems, or who have problems 

accessing health care in ways that they need it, in all kinds of ways 

in which a lawyer can help them and, you know, in which this 

country should be able to work out a system in which such help 

can be provided. 

And as you said, we very much expanded the clinical programs 

at Harvard during the time of my deanships. We also expanded the 

other kinds of pro bono opportunities open to Harvard Law School 

students. I think the numbers are more than double the number 

of clinical placements during the time that I was dean. And the pro 

bono work that was done by Harvard Law School students more 

than doubled during that time as well. So that 40-hour a week requirement that you mentioned—40-hour by graduation requirement that you mentioned, we had students who had performed 

2,000 hours of pro bono by the time they graduated. And I think 

that the average amount of pro bono that was done by our students 

by the time they graduated was something like 500 hours, sort of 

ten times the amount that we required of them. 

And I think that that’s because what they discovered was this incredibly meaningful part of being a lawyer that you can provide 

real services to people who need them that you can make a difference in the world, that you can make a difference in the lives 

of ordinary human beings. And I think, you know, sometimes you 

can sit in the law school classroom and not know exactly how it all 

matters in the world. And then you get into one of these clinics and 

you do this kind of work and you see how it matters and you see 

how lawyers can truly benefit people. 

Senator CARDIN. The University of Maryland, I believe, is attracting a much higher-level student today because of its clinical 

programs. Students want these opportunities. And I’m proud that 

you—I’m proud that we’ve instituted it in Maryland and I think 

what you have instituted at Harvard also gives you a better diversity of student body that will help in the mission at the law school. 

One last question, just very briefly, the ABA requires, as part of 

our legal ethics, to participate in pro bono. How well do you think 

that we’re doing as a legal profession on pro bono work and what 

can you do as a Justice to help advance these issues? 

Ms. KAGAN. Well, we can surely do better. And I think the Justices—you know, the question of what the Justices say, and how 

the Justices approach these big questions about the legal profession 

is something that I would want to talk with my colleagues about 

if the Senate sees fit to confirm me. But I think that there’s got 

to be a role for Supreme Court Justices given the positions that 

191 

they have, given the visibility that they have to try to work for appropriate—to try to make sure that the practice of law, the legal 

profession really lives up to the ideals that it has. 

Senator Leahy. Thank you. Thank you, Senator Cardin. 

Solicitor General Kagan, I’ve been involved in hearings either as 

a member or conducting them for 35 years of various judicial nominees. I can’t remember when anybody’s been asked such a wide variety of questions or answered them as forthrightly as you have. 

And I know it’s been a long and tiring day. I think the best thing 

to do for us is to break now, come back—unless you want to override that? 

Ms. KAGAN. No, that’s good. 

[Laughter.] 

Senator Leahy. I was looking there, I was going to say, don’t call 

my bluff right now, I want to go home too. 

[Laughter.] 

Senator Leahy. We will come back in here at 9 tomorrow morning. I’ve had a lot of discussions with Senator Sessions who is actually wonderful to work with. I mean, he has to protect, on his side, 

but we really do try to work on schedules. We, because of the death 

of Senator Byrd and the changes that’s made, it’s also making in 

changes in what we might do. It’s one of the reasons why we went 

as late as we did. And I thank my colleagues on both sides of the 

aisle for being responsive to that. 

So, please get a good night’s rest. I’m going to try to do the same. 

Senator Sessions, I hope you can too. And we stand in recess. 

[Whereupon, at 7:05 p.m., the Committee was recessed.] 

(193) 

THE NOMINATION OF ELENA KAGAN TO BE 

AN ASSOCIATE JUSTICE OF THE SUPREME 

COURT OF THE UNITED STATES 

WEDNESDAY, JUNE 30, 2010 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 9 a.m., in room SH– 

216, Hart Senate Office Building, Hon. Patrick J. Leahy, Chairman 

of the Committee, presiding. 

Present: Senators Leahy, Kohl, Feinstein, Feingold, Specter, 

Schumer, Durbin, Cardin, Whitehouse, Klobuchar, Kaufman, 

Franken, Sessions, Hatch, Grassley, Kyl, Graham, Cornyn, and 

Coburn. 

Chairman LEAHY. All right. Back to my day job. 

[Laughter.] 

Chairman LEAHY. Yesterday the nominee answered our questions over the course of 10 hours. This morning we will complete 

the first extended round of questioning in which all 19 members of 

the Committee, Republicans and Democrats, ask questions for 30 

minutes each, and I would hope after that Senators and the American people have a better sense of the nominee. I know I do. 

Yesterday we saw her demonstrate her knowledge of the law as 

well as her patience and good humor. She consistently spoke of judicial restraint, her respect for our democratic institutions, and deference showed to Congress and judicial precedent. So I urge Senators to consider what additional questions they may feel they need 

to do in a second round. I have had several Senators tell me they 

will not need their whole time, and I do appreciate that because 

we have a lot to do if we want to complete the nominee’s testimony 

today. And I realize I have been pushing the schedule very hard. 

I appreciate the nominee’s forbearance, but I also appreciate my 

good friend Jeff Sessions and his willingness to work on this, because we have the memorial services for Senator Byrd that are 

scheduled on Thursday, Friday, and Saturday, and we have to figure out how we take those into account. 

Jeff, did you want to add anything? 

Senator SESSIONS. Well, I know that you do have some challenges in working through the schedule. I want to work with you. 

We do not want to and cannot in any way curtail the essence of 

this hearing. But we will definitely do what we can to be accommodating, and I hope we can complete a full day about this in an effective way. 

194 

I do hope that we can learn more about the nominee. We see her 

gifts and graces in many different ways. Those are revealed, and 

her humor and her knowledge. But I think some of the critics who 

are saying, ‘‘Who is this nominee? Exactly what do you believe? ’’ 

might find it from the testimony difficult to know, Ms. Kagan, 

whether you would be more like John Roberts or more like Ruth 

Bader Ginsburg. 

So I think we need to know a little bit more what we can expect 

of you as a judge, and I hope today as we go forward maybe that 

will come through a little clearer. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you very much. 

Senator Whitehouse, you are recognized for 30 minutes. 

Senator WHITEHOUSE. Thank you, Mr. Chairman. 

Ms. Kagan, good morning. 

STATEMENT OF ELENA KAGAN, TO BE AN ASSOCIATE JUSTICE 

OF THE SUPREME COURT OF THE UNITED STATES 

Ms. KAGAN. Good morning. 

Senator WHITEHOUSE. Welcome back. 

Ms. KAGAN. Thank you. 

Senator WHITEHOUSE. The questions that we ask judicial candidates usually begin with a description of what I view as the role 

of the judge, and I would ask you to agree or disagree, if you 

would. I think that a Justice of the Supreme Court, for instance, 

must decide cases on the law and the facts before them; that they 

must respect the role of Congress as the representative body representing the American people; that they must not prejudge any 

case but listen to every party that comes before them; and that 

they must respect precedent and limit themselves to the issues 

that the Court must decide. 

Do you agree that those are the proper roles of a Justice of the 

Supreme Court? 

Ms. KAGAN. I do agree with that, Senator Whitehouse. It is what 

I tried to express in my opening statement on Monday and in much 

of my testimony yesterday. 

Senator WHITEHOUSE. And on this matter of precedent, does 

precedent have an institutional role in the Court in terms of the 

separation of powers and the balance of power in the Constitution? 

Is it a means by which the Court restricts itself from taking steps 

outside of proper bounds in areas best left to the more political 

branches of Government? 

Ms. KAGAN. Senator Whitehouse, I think that is said very well. 

The doctrine of precedent is in large part a doctrine of constraint 

that ensures that improper considerations, improper factors will 

not come into judicial decisionmaking, that ensures that courts will 

decide every case on the law. It is also a doctrine of humility. It 

says that even if a particular Justice might think that a particular 

result is wrong, that that Justice actually should say to herself, 

‘‘Maybe I am wrong,’’ and maybe the greater wisdom is the one 

that has been built up through the years by many judges in many 

cases. 

195 

So precedent is a doctrine of humility, and it is very much what 

you said it is, a doctrine of constraint, a doctrine that binds courts 

and judges to the law. 

Senator WHITEHOUSE. And important within our notion of separated powers, since the other branches operate under the check of 

the United States Supreme Court, that the United States Supreme 

Court as a court of final appeal has no check on itself. And the 

question who watches the watchman is very much pertinent to the 

Supreme Court or to any court of final appeal. And it is in that 

context, is it not, that respect for precedent takes on this limiting, 

separated powers, constraining function in the very structure of our 

democracy? 

Ms. KAGAN. Senator Whitehouse, that is correct. Respect for 

precedent and judicial restraint more generally are necessary for 

the reason you said, that the courts themselves have not been 

elected by anybody. There is no political accountability from the 

American citizenry. And there are precious few ways in which the 

legislature and the President can or should interfere with their 

function. They ought to be independent. But that places on them 

a responsibility which is also to be restrained. 

Senator WHITEHOUSE. So if you look at some of the big decisions 

that have been controversial and contentious—and I suppose one of 

the first would be Brown v. Board of Education, which created 

massive change across the country in our education system, directed to take place with all deliberate speed, long overdue by 

many measures, but certainly a massively important decision in 

the lives of people across the country, that was decided by a Court 

that was unanimous. Roe v. Wade has perhaps been the most controversial decision the Court has ever rendered. That was decided 

by a 7–2 Court. In both of those cases, Republican appointees and 

Democrat appointees joined the majority and supported the decision. 

And yet when you get to the recent Court, you see a different 

posture emerging. If you look at the Leegin decision as an example 

of a statutory case, that was the one you talked about yesterday 

where the antitrust laws were changed by the Court. The law did 

not change at the time, nor did the precedent. Correct? 

Ms. KAGAN. As far as I know, the precedent had not changed 

under Leegin, but, Senator Whitehouse, you will excuse me, I am 

not an antitrust expert, so I do not know whether there was any 

lead-up to Leegin. Senator WHITEHOUSE. But your testimony was that a new economic theory yesterday—— 

Ms. KAGAN. I think that that is mostly—— 

Senator WHITEHOUSE.—had driven the change. 

Ms. KAGAN.—what Leegin was based on. 

Senator WHITEHOUSE. And I agree with that. I do not contest 

that. What is interesting, though, is that it threw out 96 years of 

precedent, and it did so 5–4 with that group of five Republican-appointed judges driving the 5–4. And, again, if you look at Heller, the Second Amendment had not changed. The precedent by definition had not changed. Heller changed the law, creating for the first 

time in 220 years a private right to bear arms that no previous Supreme Court had ever noticed. And, again, that decision was done 

196 

5–4 with Republican appointees only driving the law in a different 

direction by the narrowest possible margin. 

So I guess I want to ask you what you think about all these 5– 

4 decisions and what effort the Court should make to return to a 

collegial environment at the Court where even these highly contentious decisions, like Brown v. Board of Education and Roe v. Wade, are driven either by unanimous or massive majorities of the Court 

rather than the slenderest possible majority and to try to reach 

across the partisan divide on the Court so it is not just Republican 

appointees acting together. Should there be any desire or motivation on the part of that group of five to reach their scope a little 

bit more broadly for the sake of the Court, for the sake of the country, for the sake of stability in the law, and not be so content with 

5–4 decisions? 

Ms. KAGAN. Senator Whitehouse, it is a hard question you pose 

because, on the one hand, every judge, every Justice has to do what 

he or she thinks is right on the law. You would not want the judicial process to become in any way a bargaining process or a logrolling process. You would not want people to trade with each 

other, you know, ‘‘You vote this way, and I will vote that way, and 

then we can get some unanimous decisions.’’ 

Senator WHITEHOUSE. But on the other hand—— 

Ms. KAGAN. Every judge has to do what he or she thinks the law 

requires. But, on the other hand, there is no question, I think, that 

the Court is served best and our country is served best when people trust the Court as an entirely non-political body, when people 

look to the Court as doing what we know it ought to be doing, 

which is deciding cases that come before it on the best possible 

reading of the law. And I think—— 

Senator WHITEHOUSE. And the Court is capable of framing the 

decision that it makes in a narrower or more incremental way to 

attract a broader base of support on the Court without necessarily 

engaging in log-rolling or any of the behaviors that you think are 

inappropriate, and I do not contest that. But there are ways to get 

to a larger majority without engaging in those, are there not? 

Ms. KAGAN. Well, one of the benefits of narrow decisions generally—and there are a number of them, but one of the benefits of 

narrow decisions is that they enable consensus to a greater degree 

than broad, far-reaching decisions. And that is generally a benefit 

for the judicial process and for the country as a whole to try to 

reach consensus on what it is possible to reach consensus on consistent with the law. 

Senator WHITEHOUSE. By definition, if the Court were to reach 

beyond the group of five that has driven so many of these recent 

decisions, they would be less able to move the law as dramatically 

as they have. That is just obvious, is it not? 

Ms. KAGAN. Senator Whitehouse, I want to make it clear that I 

am not agreeing to your characterizations of the current Court. I 

think that that would be inappropriate for me to do. 

Senator WHITEHOUSE. I understand that. 

Ms. KAGAN. And I am sure that everybody up there is acting in 

good faith. I do believe that one of the benefits of narrow decisions, 

of approaching one case at a time and in each case trying to think 

of the narrowest way to decide the case, is to enable consensus. 

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And consensus is in general a very good thing for the judicial process and for the country. 

Senator WHITEHOUSE. And the reverse of that is also true, which 

is that if you reach for a larger base of support in the Court, you 

constrain yourself a little bit in how rapidly you are able to move 

the law in a particular direction. Correct? 

Ms. KAGAN. And I think what a judge should do is not to think 

about—you know, ‘‘Over the long haul, I want the law to move in 

this direction.’’ I think what a judge should do is to take one case 

at a time and—— 

Senator WHITEHOUSE. I know that is what you think. 

Ms. KAGAN. Well, I can only tell you what I think. 

Senator WHITEHOUSE. That is right. But if you were looking for 

a signal from the Court over what its intentions are, one very practical signal is that over and over again it is a Court that is willing 

to make very important decisions by a 5–4 majority rather than 

roll its decisions back, be a little bit more modest in the way it goes 

in its direction, and reach for a broader consensus on the Court. 

That is simply factually true, isn’t it? 

Ms. KAGAN. Senator Whitehouse, I am going to insist again, I am 

not characterizing the Court or any of the Justices on the Court, 

and just to say what I think is the right approach to judicial decisionmaking. And I think it is—the right approach is to take one 

case at a time, to not be looking down the road and trying to figure 

out in what direction the law generally should go and how that 

case is going to lead to another case or—— 

Senator WHITEHOUSE. But, hypothetically, if judges were there 

with a larger purpose or on a mission to direct the law in a particular direction, clearly one of the indications of that—or at least 

it would be consistent with that if there were a lot of 5–4 decisions, 

wouldn’t it? Just as a matter of logic. 

Ms. KAGAN. Well, I do not think that—what I am most trying to 

make clear is that I do not think that any such agendas are the 

way anybody should conduct their business. 

Senator WHITEHOUSE. And I agree. 

Ms. KAGAN. And—— 

Senator WHITEHOUSE. Let me change the topic a little bit. What 

is the proper role of a court of appeal, a court of final appeal in 

particular, with respect to making findings of fact? Whose province 

is making findings of fact? 

Ms. KAGAN. Well, findings of fact are usually made in the district 

court, in the trial court, or with respect to other kinds of cases, of 

course, fact finding can be done by Congress. But appellate courts 

do not make findings of fact, do not have the competence to make 

findings of fact, so for the most part rely on the findings of fact 

made in other institutions. 

Senator WHITEHOUSE. That was my thought as well. I have spent 

some time doing appellate work, and my understanding was that 

particularly appellate courts do not do and particularly Supreme 

Courts do not do findings of fact. They have a record before them, 

and that is the record that they have to follow, and it is the courts 

below that make the findings of fact. So I was surprised in the Citizens United decision when the Court concluded that—and this is a 

quote—‘‘independent expenditures, including those made by corVerDate Nov 24 2008 12:24 Aug 23, 2011 Jkt 067622 PO 00000 Frm 00207 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\67622.TXT SJUD1 PsN: CMORC
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porations, do not give rise to corruption or the appearance of corruption.’’ And why do you suppose the Court was willing to engage 

in that finding of fact, which I think all of us who have had any 

political experience at all, not only find to be odd in the sense of 

it is a finding of fact being made by a Supreme Court, but also it 

is a finding of fact that in everybody’s experience who has been 

near an election is actually wrong? 

Ms. KAGAN. Well, I talked before about my argument in Citizens 

United, and, of course, I approached that argument as an advocate 

for the U.S. Government, defending that statute and trying to defend it as vigorously as I possibly could. And certainly a large part 

of my argument was to urge the Court to defer to Congress’ very 

extensive fact finding on this subject. And it was extensive. It occurred over many years, and—— 

Senator WHITEHOUSE. And it ran exactly contrary to this particular finding of fact made by the Supreme Court, did it not? 

Ms. KAGAN. I think that what the Court was saying on the other 

hand was that this was a case in which political speech, paramount 

speech entitled to paramount First Amendment protection was involved, and that the Government had failed to show that there was 

a compelling state interest that was narrowly tailored to the restriction—— 

Senator WHITEHOUSE. I understand that. That was the holding 

of the Court. But my focus is on this particular finding of fact that 

they made, which was, A, unusual and I think peculiar from a Supreme Court; B, factually wrong in everybody’s experience who has 

been around an election; and, C, actually, as you pointed out, directly contrary to the findings of fact that Congress had made in 

the 100,000-plus-page record that had been developed in prior 

cases. 

So it is just interesting that they would make that finding of fact. 

Clearly it is the core—analytically the core finding of fact necessary 

to take the step that they made to say that Congress has no business limiting corporate spending in elections and corporations can 

spend as much as they please. If you want to go that way, this is 

the kind of finding of fact one would have to make. 

So it concerns me that it is there, and I would hope that if you 

get to the Court you are more restrained in terms of making findings of fact at the Supreme Court level, particularly those that appear to diverge from the actual facts and from the Congressional 

record that is the ordinary way in which these facts get to the 

Court. And I assume that you would agree that to be modest with 

respect to findings of fact as well. 

Ms. KAGAN. Senator Whitehouse, I do think Congressional fact 

finding is very important and that courts should defer to it. It does 

not mean that fact finding is either necessary or sufficient. Sometimes Congress can make no findings of fact at all, and the Court 

should still defer to Congress. And, on the other hand, sometimes 

Congressional fact finding cannot save a statute, but in very significant measure, the courts should defer to Congressional fact 

finding, and they should do so because they should realize that it 

is Congress rather than courts that has the competence to engage 

in that kind of fact finding, to develop evidence, to call witnesses—— 

199 

Senator WHITEHOUSE. The rule, in fact, is nearly absolute. I 

mean, really the only time when it is OK for a court to make a 

finding of fact is when it goes to the point where a court can take 

judicial notice of something as a completely uncontested baseline 

fact. Isn’t that the law on this? 

Ms. KAGAN. Courts in general have neither the competence nor 

the legitimacy to do fact finding in the way that Congress can do 

fact finding. 

Senator WHITEHOUSE. So to go back to my premise, which you 

do not accept—and, you know, I understand that that is the frame 

of our discussion—that there may be judges on the Court who have 

a particular mission right now and are selectively knocking out 

precedent that does not coincide with their ideological views, if one 

wished to continue to do that—assuming my premise to be true. I 

know you do not accept it, but assuming my premise to be true, if 

there were judges who had that point of view and were on a mission to move the law in a particular direction and wanted to continue to do it, it strikes me that one way that they would try to 

continue to do that would be to try to create an analytical method 

or analytical machinery that supported the continuing effort. And 

in that regard, I was interested in Chief Justice Roberts’ concurring opinion in Citizens United where he talks about precedent that 

actually impedes—this is his quote—’’actually impedes the stable 

and orderly adjudication of future cases.’’ 

I think through the whole hearing we have had sort of a baseline 

premise in our discussions with you that precedent is what precedent is. It has been decided. You do not have an opinion as to 

whether you like it or not. It is the precedent and you are bound 

by it. But here is the Chief Justice saying that some precedent ‘‘actually impedes the stable and orderly adjudication of future cases.’’ 

And here is how you find out what that precedent is, according to 

the Chief Justice in his concurring opinion: when the precedent’s 

validity is so hotly contested that it cannot reliably function as a 

basis for a decision in future cases. 

Now, if that is a theory of precedent, does that not allow a determined group of judges on the Court to hotly contest precedent that 

they do not like and gradually undermine it until it reaches the 

point that it is so hotly contested that it cannot reliably function 

as a basis for a decision and they can now topple that precedent 

as impeding the stable and orderly adjudication of future cases? 

Analytically, setting aside the fact that you disagree with my 

premise, analytically isn’t that the way that works? 

Ms. KAGAN. Senator Whitehouse, I think that the Chief Justice 

was not the first in that opinion to make the argument that if a 

precedent is hotly contested, in his words, has been subject to very 

continuing disagreement and dispute, that that weakens it as a 

precedent. 

Now, other courts at other times have said the opposite, that 

that should not function as a reason to weaken the precedent. So 

I think that there is—even prior to the Chief Justice’s statements, 

I think that there are competing statements, competing views on 

this question. 

I think—— 

200 

Senator WHITEHOUSE. I understand that, but my point is that if 

you were a judge who wished to go out and selectively undermine 

and topple precedent that you did not agree with because you had 

a particular point that you wished to drive the law toward, isn’t 

this a very useful doctrine because you are now in a position to 

hotly contest the precedent that you do not like and use your own 

disagreement with it to undermine it and take it down? Isn’t it in 

that sense a doctrine that we should regard with some caution, 

given the role of precedent as a limiting factor in the separation 

of powers and the very balance of power of our Government? 

Ms. KAGAN. I do believe, Senator Whitehouse, that it should be 

regarded with some caution. I think that the stronger reasons and 

the reasons that the Court more frequently relies upon to reverse 

precedent has to do with its workability and has to do with whether either legal doctrine or empirical facts have eroded the precedent. I do think that the Chief Justice made some points with respect to those issues as well in his concurring opinion. But in any 

event, I think that those are the two—the two more standard bases 

for deciding that a precedent really does have to be reversed. 

Senator WHITEHOUSE. I think it was Senator Cornyn on the 

other side who said that, to use his words, ‘‘I think it would be a 

strange system indeed if our system allowed for precedent to be 

disrespected and become not binding any longer.’’ And it strikes me 

that this system where judges on the Court can continue to hotly 

contest precedent they do not like, undermine it, and topple it 

meets that ‘‘strange system indeed’’ standard. 

Let me turn to the question of the jury. I spoke about that in my 

opening remarks briefly. Again, back to the Constitution, if you set 

up the various institutions of Government, here we are the Senate, 

one of the institutions of Government, engaged in our advice and 

consent to a nomination by the President of the United States, another institution of Government, for a nominee to the Supreme 

Court, a third institution of Government. Another institution that 

is repeatedly referenced in the Constitution and Bill of Rights, 

three times total, is the jury. 

Could you comment on the extent to which the jury was seen by 

the Founders as an institution of Government, as what de 

Tocqueville called a mode of the sovereignty of the people? 

Ms. KAGAN. I think it was, Senator Whitehouse. You know, we 

learn about the separation of powers system and how the three 

branches of Government are designed to check each other. But the 

Framers also had a very strong view that there was another check 

in the system, and that check was the people and that the institution that the people often functioned as part of was the jury. And 

to the Framers, the jury was an extremely important mechanism 

in checking the other branches of Government. 

Senator WHITEHOUSE. Because they had seen corrupt colonial 

Governors and were suspicious of executive power, were they not? 

Ms. KAGAN. That is my understanding, Senator Whitehouse. 

Senator WHITEHOUSE. And they had seen the power of the early 

legislatures. I think Thomas Jefferson said, ‘‘We have traded in one 

tyrant for 237,’’ once he saw the Virginia Assembly begin to act, 

and that is why they had to go back and design the balanced system of powers. And they were sympathetic to press attacks, so they 

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could imagine an individual who the Governor was predisposed 

against, who was in the pockets of the enemy of this individual. 

They could imagine the individual being on the wrong side of the 

General Assembly or the legislature. They could imagine an individual who the owners of the paper had turned on and were marshalling public opinion against. And I believe that they wanted to 

create one last sanctuary where all of that money, power, influence, 

and public opinion would not hold sway. And that is why they established the jury, with regular citizens, and we protect it with 

laws that make tampering with a jury a crime. Do you agree? 

Ms. KAGAN. I think, Senator Whitehouse, that the jury was an 

extremely important mechanism to the Framers, and it was a 

mechanism designed to check other institutions of Government. 

Senator WHITEHOUSE. As sort of a last—when everybody else is 

gone, you can still get a fair hearing in court before the jury. 

Ms. KAGAN. I think certainly the Framers believed in an independent judiciary generally, and there is no question that within 

the judicial branch they thought that the jury played a very significant role. 

Senator WHITEHOUSE. So when the Supreme Court threw out the 

Exxon punitive damages award of $5 billion, just 1 year’s profits for 

Exxon, when they ran the tanker aground in Prince William 

Sound, and did so on the basis, in part, of predictability for corporations, there was a clear value judgment there with considerable history and constitutional law and original intent surrounding 

the jury on the one side of that equation and the convenience and 

predictability for corporations on the other side of that equation. 

Correct? 

Ms. KAGAN. Well, I do think the Court in Exxon was struggling 

with values on both sides. I would agree with that. 

Senator WHITEHOUSE. And in that particular case, the institution 

of the jury lost, and the predictability for corporations won. 

Ms. KAGAN. In that particular case, the Court held under a kind 

of maritime common law that punitive damages could go—— 

Senator WHITEHOUSE. No higher than compensatory damages. 

Ms. KAGAN—[continuing]. No higher than compensatory damages. 

Senator WHITEHOUSE. Because, otherwise, it became unpredictable for corporations. 

Ms. KAGAN. It became unpredictable that there was no civility in 

the system. 

Senator WHITEHOUSE. Correct. Thank you for our time together. 

I wish you well. And I appreciate how well and with what good 

humor and how openly you have answered all of our questions 

through this long ordeal. 

Ms. KAGAN. Thank you, Senator. 

Senator WHITEHOUSE. Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you, Senator Whitehouse, and thank 

you for the time you have spent on this. 

Senator KLOBUCHAR. Senator KLOBUCHAR. Thank you very much, Mr. Chairman. 

Solicitor General Kagan, you had an incredibly grueling day yesterday and did incredibly well, but I guess it means you missed the 

midnight debut of the third ‘‘Twilight’’ movie last night. We did not 

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miss it in our household, and it culminated in three 15-year-old 

girls sleeping over at 3 a.m. So I have this urge to ask you about 

the famous—— 

Ms. KAGAN. I did not see that. 

Senator KLOBUCHAR. I just had a feeling. I keep wanting to ask 

you about the famous case of Edward versus Jacob or the vampire 

versus the werewolf. 

Ms. KAGAN. I wish you wouldn’t. 

Senator KLOBUCHAR. I will refrain—well, I know you cannot comment on future cases, so I will leave that alone. 

I read a few weeks ago this article that I thought was good in 

the Washington Post by Donald Ayer, who is the former Deputy Solicitor General in the Reagan administration, and he talks a lot 

about what he thinks these hearings should be about, but he also 

makes some references to the balls and strikes analogy. And as you 

know, when Chief Justice Roberts was nominated to the Supreme 

Court and sat in the seat you are currently in, he famously told 

this Committee that judges are like umpires. Umpires do not make 

the rules. They apply them. He said that it was his job to call balls 

and strikes. And I was wondering if you could just talk about that 

metaphor. Do you think the balls and strikes analogy is a useful 

one? And does it have its limits? 

Ms. KAGAN. Senator Klobuchar, I think it is correct in several 

important respects, but like all metaphors, it does have its limits. 

So let me start with the ways in which I think it is an apt metaphor. 

The first is kind of the most obvious, which is that you expect 

that the judge, as you expect the umpire not to have a team in the 

game—in other words, not to come onto the field rooting for one 

team or another. You know, if the umpire comes on and says, you 

know, I want every call to go to the Phillies, that is a bad umpire. 

Is that your team? 

[Laughter.] 

Senator KLOBUCHAR. Not exactly. The Twins. 

Ms. KAGAN. I was pointing to Senator Kaufman. I am sorry. 

And the same for the judge. So, you know, to the extent that 

what the umpire suggests that there has got to be neutrality, that 

there has got to be fairness to both parties, of course, that is right. 

The second thing that I think is right about the metaphor—and 

I think that this is what the Chief Justice most had in mind, if I 

remember his testimony correctly—is that judges should realize 

that they are not the most important people in our democratic system of Government. They have an important role. Of course, they 

do. We live in a constitutional democracy, not a pure democracy. 

And judges have an important role in policing the constitutional 

boundaries of our system and ensuring that governmental actors, 

other governmental actors do not overstep their proper role. But 

judges should recognize that that is a limited role and that the policymakers of this country and the people who make the fundamental decisions for this country are the people and their elected 

representatives, whether in Congress or in the executive branch. 

And I think that that is right, too, as I have tried to say on many 

occasions throughout these hearings. 

203 

I suppose the way in which I think that the metaphor does have 

its limits—and I believe that this is in line with what Mr. Ayer was 

talking about—was that the metaphor might suggest to some people that law is a kind of robotic enterprise, that there is a kind of 

automatic quality to it, that it is easy, that we just sort of stand 

there and, you know, we go ‘‘ball’’ and ‘‘strike’’ and everything is 

clear-cut and that there is no judgment in the process. And I do 

think that that is not right, and it is especially not right at the Supreme Court level, where the hardest cases go and the cases that 

have been the subject of most disputes go. 

As to that, I think that there is—judges do in many of these 

cases have to exercise judgment. They are not easy calls. That does 

not mean that they are doing anything other than applying the 

law. I said yesterday on a couple of different occasions it is law all 

the way down. You know, you are looking at the text, you are looking at structure, you are looking at history, you are looking at 

precedent. You are looking at law and only at law, not your political preferences, not your personal preferences. But we do know 

that not every case is decided 9–0, and that is not because anybody 

is acting in bad faith. It is because those legal judgments are ones 

in which reasonable people can reasonably disagree sometimes. So 

in that sense, law does require a kind of judgment, a kind of wisdom, and there are frequently clashes of constitutional values. Senator White House talked about one such clash, but there are many 

of them. And judges have to, you know, listen to both sides and 

cast each argument in the best possible light, but sometimes they 

are not going to agree. 

Senator KLOBUCHAR. And one of the things he says in this article, he makes that point and talks about how these hearings should 

actually focus not on what he calls the simple cleverness and ability to score debater’s points, but of greater relevance when you look 

at the whole universe of trying to make decisions between plausible 

alternatives on different cases. He said, ‘‘The greatest relevance for 

a nominee is a demonstrated history of good judgment and prudence in life as in legal work.’’ And he makes the argument that 

that should be the focus of those hearings. 

So along these lines, I am going to just ask some of your work 

experiences and how you think that they help you to be a better 

judge and what you bring to the bench because of that. 

Senator Schumer had asked you about your work as Dean of 

Harvard Law School, and you said the thing you learned most from 

that was listening. And I wondered how will that experience beyond listening even—what will you bring from that experience to 

the bench? And what lessons have you learned that will make you 

a good Justice? 

Ms. KAGAN. Senator Klobuchar, I guess I will start by just saying 

that that listening was the most important lesson. I was so struck 

when I read this statement by Justice Stevens about understanding before disagreeing, and he had said that about the Justice 

whom he clerked for. And I thought, you know, that is about the 

best thing that you can say about a person, that the person does 

listen and try to understand things from the other point of view before deciding to disagree, and, you know, maybe deciding not to disagree because of the listening and the understanding that has 

204 

taken place. So that is, I hope, something that I had to learn a little bit during my time as dean. 

But I guess otherwise—you know, Mr. Ayer said prudence and 

judgment. I do think that when you run an institution with, you 

know, many, many employees, with a big budget, with just, you 

know, lots of the kinds of problems that—any person who runs a 

business or runs an organization just knows the wide variety of 

things that come across your plate every day, and, you know, you 

exercise a lot of muscles when you do something like that, and they 

are muscles that I had never exercised before, and it gave me 

grounding in a lot of things that I otherwise would not have had 

grounding in. And it made me, I think, you know, very aware of 

other people, I think, in a way that maybe I would not have been 

had I been just a professor all my life, because so many people 

come to your office with just life problems, and you get exposure 

to, you know, so many different sorts of issues that people are 

struggling with and that people are confronting in their lives, and 

it becomes a little bit your life, too. And, you know, I hope that that 

made me a better person. 

Senator KLOBUCHAR. You know, as the Solicitor General, you got 

to actually argue cases before the Supreme Court. How has that experience informed your appreciation for oral argument and what 

you think are good oral arguments, bad, what techniques do you 

think work? 

Ms. KAGAN. Well, first I will say that it has very much deepened 

my appreciation of the Court itself, and I hope that this was something that I conveyed in my opening statement, is that you go up 

there and you get to the podium, and there are nine people, and 

every single one of them is so prepared to talk about the case, so 

into the case, so engaged, obviously so smart, and so, I think, trying to get it right. And so I have developed a real appreciation for 

the Court through those oral arguments. 

What do I think is a good oral argument? I think you have to 

answer the judge’s questions. I think they are impatient when people try to give speeches or when people go up to the podium and 

just try to make their points. I have four points I want to make; 

I am going to make those points again and again and again. And 

the Justices, I think, they have your briefs, they have read your 

briefs, and, you know, the striking thing is that they really have 

read your briefs. They know your briefs. So they do not want to 

hear you repeat your briefs. What they want to hear you do is respond to their questions, and I think good advocates know that, 

and they know that even if it means going down a road that—you 

know, their great points are in some other direction, but it makes 

sense to go down the road that the Court wants you to go down, 

because that is what the Court is interested in, and it is only if you 

address the Justices’ real concerns that you are going to win your 

case. 

Senator KLOBUCHAR. So if you are confirmed, then we will consider those tips for those that go before you. 

The other thing I wanted to get to, back to this judicial philosophy piece of what we are talking about here, and that is this back 

to the master’s thesis you wrote—know it was before you were in 

law school—that you and Senator Grassley discussed. But in that 

205 

thesis, you wrote that, ‘‘Supreme Court Justices live in the knowledge that they have the authority either to command or to block 

great social, political, and economic change. At times, the temptation to wield this power becomes irresistible.’’ 

What in your character or your experience will help you deal 

with this temptation when you are on the bench? 

Ms. KAGAN. Well, I again want to say what I said yesterday, is 

that let us just throw that piece of work in the trash, why don’t 

we? You know, that it was something that I wrote before I went 

to law school and did not know much, did not understand much 

about law, and certainly about the way judges should work. 

I just think every judge just has to be committed to the kind of 

principles of restraint that I have tried to talk about in this hearing, and every judge has to realize that the people of this country 

get to make the fundamental decisions about this country. And I 

do think that my experience working in other branches of Government, in the executive, and working a good deal with Congress, will 

remind me of that if anything were needed to remind me of that, 

because what I did take away from those experiences was really a 

profound respect for the political process and for how policy decisions are made. And not every single one of them looks pretty, and, 

of course, no single person is going to agree with every result that 

comes out of Congress or any other political institution. But I do 

believe that there is real wisdom in the American people, and that 

wisdom gets channeled through institutions like this one, and that 

in the main we are well served by our political institutions, and 

that even when we are not, it is just not up to courts to correct 

that. 

So, you know, I think that the experiences that I have had in 

government are good reminders of just the importance of the democratic branches of our Government in making the fundamental policy decisions that affect our country. 

Senator KLOBUCHAR. Very good. The other part of your job will 

be to write opinions, and in a 1996 article on the First Amendment 

you discussed a case actually from my State, RAV v. City of St. 

Paul, and you noted that Justice Stevens criticized part of the Supreme Court’s approach in that case, characterizing it as ‘‘an adventure in a doctrinal wonderland.’’ 

How as Justice Stevens’ successor would you work to make sure 

the Supreme Court’s opinions are both well grounded and accessible to the general public? 

Ms. KAGAN. Senator Klobuchar, I should say it is an important 

question, but I will just say I think in the end I disagreed with Justice Stevens more than I agreed with him in that opinion. 

Senator KLOBUCHAR. Right. 

Ms. KAGAN. But I do think it is sometimes a fair criticism, the 

criticism that Justice Stevens made, and it suggests something 

about maybe some decisions’ lack of connectedness to sort of facts 

on the ground. And I would say two things about that. 

The first is that courts have to be really attentive to the facts of 

a case, that courts cannot be sort of spinning legal doctrine irrespective of the facts in a case that have been presented to them, 

because the whole idea of courts in our system is that the courts 

are not deciding abstract legal questions. They are not just sort of 

206 

philosophizing about proper legal approaches. They are deciding actual cases and controversies. And what it means to decide an actual case or controversy is to think about the application of law to 

facts, and what that requires is that you really understand the 

facts, that you really—that you delve through the record, that you 

get your absolute best sense of what the actual conditions and circumstances of the parties are. So that would be the first point I 

would make. 

I guess the second thing is actually that even going beyond that, 

that it is often an important part of principled judicial decisionmaking to take into account the actual consequences of a legal rule. 

And this appears in a number of different areas. I will give you 

one, which is procedural due process, the 14th Amendment. We are 

more used to talking in these hearings about the substantive due 

process aspect of the 14th Amendment, but the procedural due 

process aspect is very important. It is the set of requirements that 

say when an individual comes and challenges the Government, 

says the Government has denied me some benefit that the Government owes me. The question is what procedures is that person entitled to to make that challenge. And the test the Court uses is a 

very practical one. It says, well, if we gave you more procedures, 

how much would that increase the accuracy of our determinations? 

And, also, if you were wrongly deprived of some benefit, how much 

would that hurt you? And, also, what is the burden that these procedures are likely to impose on the Government? What is the actual cost that the Government is going to have to incur? And it balances those things, and that is an example of how in some areas 

the Court has, and I think appropriately, looked to the real world, 

the practical effects of a particular legal rule. 

Senator KLOBUCHAR. All right. So you are not talking about driving a result; you are talking about how the results, knowing what 

the results could be, should be considered. 

Ms. KAGAN. Yes. You are totally not talking about driving the results. This is anything but a results orientation in the way people 

sort of think, oh, I want this side rather than that side to win. That 

is inappropriate in every and all circumstance. But there are places 

in which the legal doctrine and even the constitutional doctrine 

does take into account practical effects. 

Just another quick example is Fourth Amendment search and 

seizure cases, where the Constitution speaks of unreasonable 

searches and seizures. And one of the things that the Court takes 

into account in deciding what is a reasonable search and seizure 

and what is an unreasonable search and seizure is some practical 

impacts on the people who are searched, but also very much on the 

police. You know, how can we create a set of—you know, how can 

we create a doctrine that the police will find to be workable so that 

they will know when to search and when not to search, when they 

have to get a warrant and when they do not have to get a warrant. 

Senator KLOBUCHAR. Well, along those lines, last year the Supreme Court decided, as you know, Melendez-Diaz v. Massachusetts, a case about the Confrontation Clause in the Sixth Amendment. And the Court held that it violated the Confrontation Clause 

for a prosecutor to submit a chemical drug test report without the 

testimony of a forensic scientist. It was a 5–4 decision. It did not 

207 

split along ideological lines. And I was concerned about the decision 

just because, again, of the practicality of how all this would work 

for prosecutors, and, actually, this year the Supreme Court had another case, Briscoe v. Virginia, which raised the same question. 

And I was hopeful that the Court might limit Melendez-Diaz. Twenty-six Attorneys General, including the Attorney General of 

Minnesota, chimed in, explaining that it was already negatively affecting drug prosecutions in some States. And actually as Solicitor 

General in the Briscoe case, you submitted an amicus brief that 

supported the position of the State. And I thought you could discuss this, elaborate on the position and why you think it is important, if you look—because I figure you are not going to be able to 

get involved in this case if you are a Justice, but just if you could 

talk about the results and what could happen with a case like this. 

Ms. KAGAN. Well, I will not be able to get involved in this case. 

I am sure that there are other issues that will be coming down the 

road about the Confrontation Clause. I will try to steer clear of 

that. 

As you say, Senator Klobuchar, the U.S. Government did file a 

brief in that case, and it supported, whatever it was, 26 or 27 

States which were concerned about the effects of the Court’s prior 

ruling on law enforcement and particularly were concerned about 

the ability of governments to present evidence—this was evidence 

of drug testing—without going to great expense and burden to get 

every lab analyst into the courtroom. 

Senator KLOBUCHAR. Right. I think in Virginia the statute said 

they could bring them in if there was a question, if it was disputed. 

But if it was not disputed, they did not have to bring the lab analyst in. And the Supreme Court decided not even to go into that 

and say, well, that would be fine. 

Ms. KAGAN. Yes. I think the Court just remanded the case back 

to the lower courts to decide it, and decided, you know, not to say 

anything more about this issue in that case. The Government had 

urged them to do so because of the kinds of practical issues you 

raise. 

I think the Court’s analysis now in this area does not focus on 

those practical questions. The Court’s analysis simply asks, says, 

Is the evidence in question testimonial, which an affidavit from a 

drug analyst would be? And if it is testimonial, the only way in 

which it can be admitted in court is if the person who has made 

the affidavit, who has written the affidavit is unavailable and was 

previously subject to cross-examination. So it is a pretty bright-line 

rule, and it has had the effects on States that you mentioned. But 

it is—the approach is now settled law, and I will say—I will say 

one thing about this. I think it sort of suggests something different 

about the judicial process that is a point I have been trying to emphasize. 

I think that the Justice who has been primarily responsible for 

this understanding of the Confrontation Clause. And it is an understanding of the Confrontation Clause, you know, that works well 

for criminal defendants. 

Senator KLOBUCHAR. That is a nice way of saying it. 

Ms. KAGAN. Criminal defendants love this rule. Prosecutors do 

not like this rule. 

208 

The person who has been most responsible for this approach is, 

I think, Justice Scalia, and I do not think that Justice Scalia is any 

great fan of—you know, if you gave him a criminal defendant and 

gave him a prosecutor and said, ‘‘Choose,’’ I do not—you know, I 

think we would know which way he would choose. It is actually a 

good example of where a person’s view of the law comes out a different way from, you know, which party they might want to have 

win. And that is a great thing for a judge to do. All judges, that 

should happen in their lives, that their view of the law leads them 

in a direction which, you know, if they were a legislator or if they— 

you know, they would not come out that way. 

Senator KLOBUCHAR. Well, I just hope you will take to heart one 

of the comments written about Justice O’Connor when she retired. 

Someone said, ‘‘On an attentive reading, many of the Justice’s opinions were infused with a keen sense of what it felt like to live inside the shoes of affected litigants and ordinary citizens and with 

an almost urgent need to make certain that the outcome of the 

case, while doctrinally sound, was also workable.’’ And they went 

on to talk about her approach and a focus on pragmatism. 

And when I think about this Melendez-Diaz case and some of the 

other ones before the Court, in addition to some of the other issues 

my colleagues have raised—and this is not an ideological argument. It is just a practical argument of having someone that will 

go in there and think about the effect that some of these decisions 

have on ordinary citizens. So I hope you will take that to heart. 

The last thing I wanted to ask as the daughter of a former reporter is just about—there has been a lot of talk about the First 

Amendment as it relates to political speech, but I just want to talk 

for a minute on New York Times v. Sullivan. And in 1993, you 

wrote a book review and you discussed the Supreme Court’s decision in that case, which, as you know, was a critically important 

decision for libel law and for the First Amendment specifically. And 

your 1993 piece recognized how important the Sullivan decision 

was for First Amendment jurisprudence, but discussed the fact that 

the actual malice standard had been applied in libel cases that differed a great deal from those facts in Sullivan back in the 1960s 

with the civil rights movement. 

You wrote in that review, ‘‘The obvious dark side of the Sullivan 

standard is that it allows grievous reputational injury to occur 

without monetary compensation or any other effective remedy.’’ 

And you wondered, ‘‘Is an uninhibited defamatory comment an unambiguous social good? That is, does it truly enhance public discourse? ’’ you asked. And I wondered if you agreed with your past 

comments on Sullivan and whether or not your last few months 

going through the media focus with your confirmation hearing has 

changed your opinion or strengthened it in any way, Solicitor General? 

Ms. KAGAN. OK. I think people should be able to write anything 

that they want about me, and I do not think that I should be able 

to sue them for libel. 

[Laughter.] 

Senator KLOBUCHAR. Very good. But how about the case itself 

and with the changing Internet and other, you know, more social 

media and bloggers? I mean, does that affect anything? And how 

209 

about your past comments? Do you want to add to those from the 

book review? 

Ms. KAGAN. It has been a long time since I read that book review, but I think that the point that the book review was making 

was, on the one hand, what an iconic decision New York Times v. 

Sullivan is, how important it has been to the development of our 

First Amendment law, how vital it is to a system of free expression 

to have newspapers and other people who speak—it is not just 

newspapers, as you suggest. I mean, given the way the media has 

developed, there are so many different ways to express thoughts in 

our world now. And to have these speakers insulated from libel 

suits by people who are in this public sphere, who are public officials or who are public figures, and to have an extremely, extremely high bar before those people can recover for any libel that 

may have been done them. 

I guess the question that I was asking in that review—and I continue to think it is a real question—is how far should that go in 

the sense of—we should understand that libel can harm people, 

that reputational harm is real harm, and that people can suffer 

great damage from their reputations being inaccurately besmirched 

through utterly false statements. 

And I guess the question that I asked was whether there were 

some contexts where the person had not put themselves into the 

public sphere in any real way, where the person was, you know, 

a private actor trying to mind his or her own business and sort of 

became dragged into the spotlight and something terrible was said 

about that person in a way that had harmed that person. The law 

actually does treat that person somewhat differently in libel law, 

but the question I was asking was whether the balance had been 

struck appropriately in that sort of case, where the values of the 

First Amendment in uninhibited political speech are not so much 

evident, and where the personal harm can be great. 

It has been so many years since I read that article, I am not exactly sure how I came out on that question. But I think it is a real 

question, and even as we understand the absolute necessity for a 

kind of New York Times v. Sullivan sort of rule and for protection 

of speakers from libel suits, from defamation suits, even as we understand that, you know, we should also appreciate that people 

who did nothing to ask for trouble, who did not put themselves into 

the public sphere, can be greatly harmed by—when something goes 

around the Internet and everybody believes something false about 

a person, that is a real harm, and the legal system should not pretend that it is not. 

Senator KLOBUCHAR. Well, thank you very much, and thank you 

for putting yourself in the public sphere today. And as I said at the 

beginning, you have done a very good job. I appreciate it. 

Ms. KAGAN. Thank you. 

Chairman LEAHY. Thank you very much, Senator Klobuchar. 

Senator Kaufman, thank you for being here. 

Senator KAUFMAN. Thank you, Mr. Chairman. 

Good news. When you get to Senator Franken and me, you are 

at the end of the road. 

Ms. KAGAN. That is not what they tell me, you know. 

Chairman LEAHY. On the first round. 

210 

Senator KAUFMAN. The first round. 

Some of my colleagues have suggested that you are too political 

because of your service on the Domestic Policy Council. Can you 

talk a little bit about the difference between serving on the Domestic Policy Council as opposed to serving on the Supreme Court? 

Ms. KAGAN. There is a huge difference, Senator Kaufman. In the 

Domestic Policy Council, I was an aide to President Clinton. I was 

carrying out—helping President Clinton to carry out his domestic 

policy goals and objectives. As you know, I worked on a variety of 

issues. I worked on education. I worked on public health, particularly tobacco. I worked on anti-crime measures. I worked on the 

measures involved in ending the old welfare system. I worked on 

a number of things. I am very proud of my service there. I think 

I contributed to doing some good things for people across this country. But it is an entirely different role. I was, you know, not primarily looking—there was a period of time in the White House 

where I was also a lawyer, but when I was a policy aide, I was not 

primarily looking at things as a lawyer. And even as a White 

House lawyer, you are a lawyer for a particular administration’s 

perspective and a lawyer for a President who is trying to achieve 

a certain set of goals. 

As a judge, you are on nobody’s team. As a judge, you are an 

independent actor, and your job is simply to evaluate the law and 

evaluate the facts and apply the one to the other as best, as most 

prudently, as most wisely as you can. 

You know, the greatness of our judicial system lies in its independence, and that means when you get on the bench, when you 

put on the robe, your only master is the rule of law. And, you 

know, regardless what political administration you might have 

worked for in the past—and there are many Justices on the Court 

who have worked for—either for Congress or for the Executive, but 

just like all of them have, I would, if I am fortunate enough to be 

confirmed, you know, put on that robe and be independent and not 

favor any political party. 

Senator KAUFMAN. I mean, some of them—Sandra Day O’Connor 

even was an elected official herself. 

Ms. KAGAN. Sandra Day O’Connor was an elected official herself. 

That is true. I will give you another example. It is a great example. 

He is actually one of my favorite figures in Supreme Court history, 

who is Robert Jackson. Robert Jackson was such an executive 

branch man. He had had a series of positions in the executive 

branch, including in my role, including as Solicitor General and Attorney General, and he was also in a way that very few Justices— 

well, a few, but he was very close personally to Franklin Roosevelt. 

Even before he had occupied this set of positions, they were real 

friends. And Justice Jackson, you know, he got to the Court, and 

the executive branch never counted on his vote. Quite the opposite, 

that he was as independent as they come. And, you know, the case 

that everybody knows about, of course—and it is kind of the iconic 

case—is what he did in Youngstown, where President Truman 

closes the steel mills and says that this is vital for the national security of the country, and the question comes to the Court. And I 

think for sure President Truman must have thought, Oh, well, you 

know, Robert Jackson will vote with me. And Robert Jackson did 

211 

nothing of the sort. Robert Jackson voted against the ability of the 

Executive to take an action like that and wrote one of the—I think 

probably the strongest opinion ever written on the subject of executive power. 

So, you know, that is the kind of independence that I think a 

judge has to show, and I think—I think it is sort of a natural consequence of assuming that position. 

Senator KAUFMAN. I want to talk a little about Leegin. It has 

been talked about in a number of different places, and both sides— 

everyone on the Committee, I think, practically, has talked about 

precedent and stare decisis at least once in the last two or three 

Supreme Court hearings. So I think it an important case because 

it overturned 96 years of precedent. 

Now, the one point that—if Congress, you know, whether Congress has the right to make the facts or Congress has the right to 

make the rules, during this 96 years Congress could have changed 

this rule if they came up with a new economic theory, anytime they 

wanted to. Correct? 

Ms. KAGAN. That is true, Senator Kaufman. I will push back a 

little bit, though, and say that the antitrust area is a kind of special area with respect to statutory interpretation that courts have 

been considered to have more common law power in this area because of the breadth with which and the generality with which the 

antitrust statutes are framed. 

Senator KAUFMAN. Right, but this is a new—a new economic theory is different than a new set of facts or new things we learn 

about as we go along. I am just making the point that Congress 

could have stepped in at any time during those 96 years if they 

thought there was a new economic theory that was relevant and 

changed the law. 

Ms. KAGAN. Congress surely could have stepped in at any point 

and, indeed, could do so now. 

Senator KAUFMAN. Right. And in Illinois Brick, another Supreme 

Court antitrust case, Justice White wrote, and I quote, ‘‘In considering whether to overturn precedent, we must bear in mind that 

considerations of stare decisis weigh heavily in the area of statutory construction where Congress is free to change this Court’s interpretation of its legislation.’’ 

Do you agree with Justice White on that? 

Ms. KAGAN. I think it is a longstanding principle, a very well accepted one, and I do agree with it, that stare decisis is at its highest in the area of statutory interpretation. And the answer is what 

you just gave, that, look, if the Court got it wrong, Congress can 

change it. And if Congress has not changed it, it suggests something, at least, about whether the Court got it wrong. And that is 

a very different kind of situation than when the Court makes a 

constitutional ruling, where the Court makes a constitutional ruling and everybody has to live with it and abide by it regardless 

whether it is wrong. Nobody can change it. So if it is really wrong 

or really unworkable, it is up to the courts. Not so with respect to 

statutes. 

Senator KAUFMAN. And Justice Roberts was right when he said 

stare decisis is not always the only consideration, just like you said 

212 

in constitutional cases and other cases stare decisis does not overrule everything. But it is a major consideration. 

Ms. KAGAN. Stare decisis is a major consideration, and it is at 

its height where statutes are concerned. 

Senator KAUFMAN. Right. I am concerned about Leegin because 

it seems to me an example—and this has been talked about by a 

number of my colleagues on both sides of the aisle, where you have 

results-oriented decisionmaking, and it just seemed to me five Justices decided to overturn precedent simply because they did not like 

the outcome that precedent dictated or the economic theory embodied, no matter what the Congress did. I mean, that just seems 

clear to me. 

Without regard to your views on Leegin, please tell us, if confirmed, what factors do you consider when you are asking to overturn a settled issue of statutory construction? 

Ms. KAGAN. Well, I think that the factors would be the same as 

in a constitutional case, but then there would be—you would really, 

really, really have to find those factors. So the factors would be the 

workability of the precedent. If the precedent has just proved unworkable in the sense that courts struggle to apply the test and 

come up with widely differing results, it produces a kind of erraticism and instability in the law. That would be one. 

Another is if the precedent has been eroded over time, and that 

might be because it is eroded by other doctrinal change. Let us say 

one precedent is relied on in three other cases, and then two of 

those other cases have been reversed themselves, so the precedent 

is standing on nothing in the way of doctrine. That is an important 

consideration. 

Still a third is if the facts change such that a precedent becomes 

sort of silly, and the best example I can give you of that is in the 

search and seizure context. There used to be a rule that said something was only a search if there was an actual trespass on physical 

property. And then a case came along—it was the Katz case— 

which involved surveillance issues. And the Court said, well, wait 

a minute, why should we require a physical trespass on property? 

We have all these new technological ways of essentially invading 

people’s privacy and searching them without doing the trespass, 

the sort of technology has overtaken the precedent, and that would 

be a situation in which the Court might reverse a precedent. 

So those are generally the circumstances in which that happens—lack of workability or a kind of erosion because of doctrinal 

change or because of change in factual circumstances in the world. 

But as I indicated before, you really, really have to be sure that 

one of those things exists, even more than in the constitutional context, when you are dealing in the statutory realm. 

Senator KAUFMAN. And how about the length of precedent? 

Would that be a factor—— 

Ms. KAGAN. I think it generally is. I think it generally is, just 

in the sense that it is at least true that the more times that a 

precedent is affirmed and reaffirmed and reaffirmed and nobody 

has found anything wrong with it, and to the contrary, maybe people have specifically reconsidered the precedent and said, yes, we 

think that this is a good precedent, that would be a factor. 

213 

Senator KAUFMAN. I want to talk—another case that has been 

talked about—about Citizens United, and I hope I am going to be 

dealing with new ground based on what I have heard from the 

other questioners. But I think both Leegin, Citizens United, Exxon, 

these are all cases that everyone has been talking about in terms 

of where the Court has gone, and so I would just ask you: In the 

Citizens United case, there were two rounds of briefing and second 

oral argument in that case, right? 

Ms. KAGAN. That is correct. 

Senator KAUFMAN. And who asked for the second round of briefing and oral argument? 

Ms. KAGAN. Well, the Court did. 

Senator KAUFMAN. Right. So it was not the parties that asked for 

the thing. What question did the Court direct the parties to brief 

and argue? 

Ms. KAGAN. I do not remember the exact phrasing, Senator Kaufman. 

Senator KAUFMAN. No, just in general. 

Ms. KAGAN. The question of whether Austin and a part of 

McConnell should be reversed. 

Senator KAUFMAN. In your experience, is it unusual after briefing and argument for the Court to then direct the parties to brief 

and argue a different question, one drafted by the Court itself? 

Ms. KAGAN. Well, it is unusual. It is not unheard of. It has happened in other cases as well. 

Senator KAUFMAN. But it is unusual? 

Ms. KAGAN. It is unusual. 

Senator KAUFMAN. Is it fair to describe the question posed by the 

Court as a broader question of constitutional interpretation compared to questions first presented by the parties? 

Ms. KAGAN. I think that the question that the Court posed had 

been in the initial complaint but had then been abandoned by the 

party’s in the case. In the briefs that had been filed in the Court, 

the question and the argument came back in a few paragraphs, but 

that it was not the focus of the party’s argument. 

Senator KAUFMAN. Without regard to this case—and just to go a 

little more into something you talked about with Senator Whitehouse, your view about judges choosing pretty narrow statutory 

ground for decision and broad constitutional ground for decision, 

can you just kind of sum up your feeling about that? 

Ms. KAGAN. Well, I think that there is a longstanding rule—it is 

a sensible rule; it is a good rule for the judicial system—that to the 

extent one can, one should avoid constitutional questions, and that 

means that if one can, one should decide a case on statutory 

grounds. 

Now, that is not always possible. 

Senator KAUFMAN. Right. 

Ms. KAGAN. Sometimes the statute does not allow it. You cannot 

make up a statute or recast a statute to make it mean something 

that it obviously does not mean just in order to avoid a constitutional question. But to the extent that it is reasonable to construe 

a statute in a way that avoids a constitutional question, it is, I 

think, a longstanding practice of judicial restraint to do so. 

214 

Senator KAUFMAN. And is it fair to say that the ultimate ruling 

in Citizens United was not consistent with prior decisions based on 

corporate election expenditures? 

Ms. KAGAN. Well, it certainly was not consistent with Austin or 

with the part of McConnell that was reversed. There was clearly 

an argument in the case as to what the other precedents held—— 

Senator KAUFMAN. Right. 

Ms. KAGAN—[continuing]. Whether those precedents were themselves anomalous or whether they were a part of a longstanding 

tradition. The Government had argued the latter. 

Senator KAUFMAN. To me it goes back to the same thing as 

Leegin. I think it is something that I have heard, again, from both 

sides of the aisle, kind of results-oriented judging, kind of reaching 

a decision, and then trying to figure out how to make it happen 

where you take a result and then you figure out how to manipulate 

it. I am not going to ask for your assessment on Citizens United 

and whether it was results-oriented judging. But talk a little bit 

about results-oriented judging. 

Ms. KAGAN. Well, I think results-oriented judging is pretty much 

the worst kind of judging there is. I mean, the worst thing that you 

can say about a judge is that he or she is resulted-oriented. It suggests that a judge is kind of picking sides irrespective of what the 

law requires and that that is the absolute antithesis of what a 

judge should be doing, that the judge should be trying to figure out 

as best she can what the law does require and not going in and 

saying, you know, I do not really care about the law, you know, 

this side should win. 

So to be a results-oriented judge is the worst kind of judge you 

can be. 

Senator KAUFMAN. So, I mean, we have these issues, like resultsoriented judging, precedent, stare decisis, where everybody on the 

Committee seems to agree. It is kind of remarkable how, when we 

look at individual cases, they are not taken into account. And I am 

not going to ask you to comment on that. 

Senator Hatch was concerned yesterday, I believe, that small 

business owners would not be able to express themselves politically 

without Citizens United. But under McCain-Feingold, there would 

not be any barrier for a small business person—most of these like 

S corporations are just individuals. They could still give themselves 

a dividend, take the money and go out and spend it in political 

campaigns. Correct? 

Ms. KAGAN. Senator Kaufman, in fact, this question did come up 

at the oral argument in the case, and I was asked a question about 

it, and I responded in a similar kind of way, that they could not 

do it through the—they could not spend through the corporation 

itself, but that they could spend individually. 

Senator KAUFMAN. The main thrust of this decision and all the 

discussion about this decision were corporations and labor unions 

with massive assets that they could then invest into a campaign 

without any Government supervision, not part of any kind of legislation, just spend whatever they wanted on that, and that was 

clear precedent that was not what we want in this country. 

Ms. KAGAN. Well, it is certainly the way—when I argued the 

case—that I understood the Congressional Record, that when I 

215 

looked at the Congressional Record and tried to portray to the 

Court what the Congressional Record was all about, that it was all 

about larger corporations and trade unions and the way in which 

they could inject money into the political system, and thereby 

change the outcomes of the political system. 

Senator KAUFMAN. Because really these institutions have massive amounts of money. I mean, this is not just—we are not talking 

about some little corporation. These people—these large institutions could spend hundreds of millions of dollars if they decided it 

was in their interest to do so and that that would completely overtake whatever individual expenditures we could have in this country. 

Ms. KAGAN. Senator Kaufman, the argument that the Government made, which was based on Congress’ own record, suggested 

that there was significant potential for corrupting influence in that 

way. 

Senator KAUFMAN. And the other thing that is key, I think, in 

this is it was not just corruption; it was the appearance of corruption. I am not one that thinks there is that much corruption—— 

Ms. KAGAN. Yes, and the appearance of corruption, and that has 

been something that the Court’s decisions, Buckley v. Valeo has 

made clear is a compelling governmental interest, preventing either corruption or the appearance of corruption. 

Now, you know, the Citizens United Court found that the Government had not proved its case sufficiently and it had not shown 

to the high level that is necessary in the political speech context 

that these dangers would exist. And that is settled precedent going 

forward. 

Senator KAUFMAN. Right, and it really is quite extraordinary because I have not met anyone in the last 20 years who does not 

think there is at least the appearance of corruption in the way we 

finance our campaigns. Not a single person. I mean, as soon as people find out that I teach about this or I worked here, they start 

talking about the appearance—they go more than the appearance, 

most people. So the idea that the Court could rule that there was 

not the appearance of corruption is really quite extraordinary. 

Let me talk a little bit about Exxon v. Baker. In Exxon v. Baker, the Court limited punitive damages in admiralty cases to no more 

than the amount of compensatory damages. That would mean 

Exxon ended up paying $2 billion less to victims than it otherwise 

would have. Right? Because of the ruling, they did not have to pay 

$2 billion in punitive damages. 

Ms. KAGAN. Got it. Yes. 

Senator KAUFMAN. And because Justice Alito did not participate, 

it is also fair to say that four members of the Court voted completely to ban punitive damages, and if Justice Alito had voted the 

same way, that would have been no more punitive damages. Is that 

correct? 

Ms. KAGAN. In this class of maritime suit, yes, I believe that that 

is right. 

Senator KAUFMAN. Which is kind of extraordinary, again, to me. 

I mean, I think that my experience has been—and I worked in corporations and the rest of it—that when you are trying to make a 

decision about safety or any other thing, kind of what the cost 

216 

could be has to be a factor in your decision. And so I just wonder 

with the lack of punitive damages, if it had ruled in Exxon v. 

Baker, what kind of impact that would have in the gulf or what 

kind of decision has with British Petroleum or any other company 

trying to decide whether they are going to put in the necessary 

safety requirements to avoid a potential spill with liabilities, not 

just cost liabilities but also punitive liabilities. 

Let me talk about regulatory reform authority. As I said in my 

opening statement, I am concerned that in business cases the current Supreme Court too often seems to disregard settled law and 

Congressional policy choices, and you talked about that. And Congress is about to enact, we hope, an improved financial regulatory 

system. I want to make sure that the system is not undermined by 

judges who may have a different view of the proper role of Government regulation. 

Without asking you about that legislation, do you believe as a 

general matter Congress has the constitutional authority to regulate financial markets? 

Ms. KAGAN. Congress has broad authority under the Commerce 

Clause, and certainly most regulation of financial markets that I 

could think of would substantially affect interstate commerce. It 

does not mean to say that there could not be something unconstitutional in this area as in any other, but the standard test is whether 

activity substantially affects interstate commerce. There are limits 

on non-economic activity, but presumably the regulation of financial markets would not be that. 

Senator KAUFMAN. Can you talk a little bit about what the 

judge’s idea of the wisdom of a statute should play in the judge’s 

decision? 

Ms. KAGAN. I do not think it should at all, and I think—I guess 

I talked yesterday about Oliver Wendell Holmes, who was the Justice who in the early 20th century was most adamant that the 

Court was going down the wrong road in striking down a whole series of pieces of economic legislation. And what most people, I 

think, do not know about Justice Holmes is that he thought all this 

economic legislation was dumb. I mean, he was not in favor of 

these various pieces of progressive legislation for the most part, 

and, you know, notwithstanding that, he said, look, I might think 

that this legislation is unwise, but this is a choice for the American 

people; and, you know, if I am right and it turns out that they have 

done unwise things, they will correct it. 

And I think that that is what the attitude of judicial restraint— 

judicial deference to the democratic process really is. It does not 

matter whether you like the legislation or not. Not to say that 

courts do not have an important role. Courts do have an important 

role in policing those constitutional boundaries. But in fulfilling 

that role, you know, courts should realize that they are not the 

principal players in the game. 

Senator KAUFMAN. Let me talk about dean at Harvard. When 

you were dean at Harvard, what did you do to promote public service? 

Ms. KAGAN. Well, I tried to do a lot because I think it is one of 

those things that, you know, public service—it is one of those 

things that, on the one hand, what our students find is that they 

217 

do good for other people and that they also create meaningful professional lives for themselves. So working with quite a large number of people at Harvard, I think some of whom are here in the 

rows behind me, we tried to very much increase clinical opportunities to give people a sense of what it actually meant to do public 

service. I tried to use, you know, the bully pulpit whenever I could 

to talk about the importance of these issues. And I think we had 

good results, that the number of students who did clinical work in 

the law school went up very dramatically, that the number of students—I was speaking with Senator Cardin yesterday about our 

pro bono requirement, which says you have to do 40 hours of work 

in public service kind of activities, helping people who cannot afford legal services to get necessary legal services. You have to do 

40 hours a week—excuse me, 40 hours by the time you graduate. 

Forty hours by the time you graduate. And students were doing an 

average of 500-some hours, so 10 times what they had to do. And 

I think that that was because they found it meaningful for themselves to see how their legal profession—how their legal training 

could be used to help real people solve real problems, and I think 

it was great for the surrounding community. Harvard Law School 

is now the second largest provider of legal services in the State of 

Massachusetts, and I think that that is something that the school 

can legitimately be proud of. 

Senator KAUFMAN. Let me ask you—you know, large modern corporations are great, they are what make America great, and they 

provide jobs. But they also have vast resources at their disposal. 

What is the role of the Supreme Court in making sure that there 

is a level playing field between major corporations and the individual American? 

Ms. KAGAN. Well, Senator Kaufman, I think that the role of the 

Court is to provide a level playing field for all Americans, and this 

is what I tried to convey in my opening statement, that the greatness of the Court and the greatness of the Court historically has 

been that no matter who you are, your arguments are considered 

with the same kind of respect, your arguments are given the same 

kind of attention, and if you are right on the law—and you have 

to be right on the law. But if you are right on the law, it does not 

matter that your opponent has a great deal more wealth or more 

power than you do. 

And one of the things that I found remarkable in my time as Solicitor General is I walk into that Court and I represent the Government. And people might think that the Government is kind of 

favored in the Court, but anything but. You know, the Government 

is given just as hard a time as every other litigant. In fact, I think 

some Justices actually think it is okay to give the Government a 

harder time. And I think that that is fine because the Government 

does have, you know, a lot of resources and a lot of ability up there. 

And so every single person who comes before the Court has to 

be treated equally, and every single claim has to be considered fairly, and whether you are a rich person or a poor person, whatever 

your race, whatever your religion, whatever your belief, you are entitled to the same kind of respect. And I think that the greatness 

of our court system historically has been that you have generally 

gotten it. 

218 

Senator KAUFMAN. You spoke yesterday with reverence about 

Justice Marshall’s reverence of the American judicial system. You 

have also written about it. I would like to read you one of your 

quotes. ‘‘In Justice Marshall’s view, constitutional interpretation 

demanded above all else one thing from the courts. It demanded 

that the courts show a special solicitude for the despised and disadvantaged. It is the role of the courts in interpreting the Constitution to protect the people who went unprotected by every other 

organ of Government, to safeguard the interest of people who had 

no other champion. The Court existed primarily to fulfill this mission.’’ 

Some of my colleagues have used this statement to attack Justice 

Marshall. Could you elaborate on what you said in that tribute and 

what it means to you as a nominee to the Supreme Court? 

Ms. KAGAN. Well, what I was trying to say, Senator Kaufman, 

is really what I just said to you, that Justice Marshall lived in a 

time and he lived in a world and he lawyered in a world in which 

many doors were closed to him. And as he was trying to eradicate 

Jim Crow segregation, he was not met with much—you know, you 

could walk into the State houses and you could walk into Congress 

and you could walk into the White House, and there were not a 

whole lot of people who were willing to listen to the kinds of claims 

he was making, just claims for racial equality. 

And I think what he—the reason he revered the courts was that 

step by step by step over the years he did find success in the courts 

because the courts were willing to listen to those claims in a way 

that nobody else in the governmental system was. And he made 

great progress and did great justice of going to the courts and arguing his cases there and expecting no more—expecting no more than 

that the courts would rule on him if he was right on the law and 

on the meaning of the Constitution, but step by step by step, succeeding in that mission. 

Senator KAUFMAN. Thank you very much. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you very much, Senator Kaufman. 

We were just discussing the schedule up here. We will have Senator Franken’s questions, and then we are going to take a very 

short break. There is a vote, I am told, at noon on General 

Petraeus. We have a couple people who will vote at the desk when 

it starts because we will not stop the hearing for the vote. People 

will go back and forth and vote and keep the hearing going. Then 

we will take a lunch break at an appropriate time. 

Senator Franken, you are on, and then we will take a break. 

Senator FRANKEN. Thank you, Mr. Chairman. 

General Kagan, I really liked something you said yesterday in 

your conversation with Senator Kyl. You said that ‘‘one of the glorious things about courts is they provide a level playing field in all 

circumstances.’’ And that we need to ‘‘make sure that every single 

person gets the opportunity to come before the Court and gets the 

opportunity to make his best case and gets a fair shake.’’ 

I want to discuss something that is denying more and more 

working Americans that precious day in court, that fair shake—and 

that is mandatory arbitration. Now, arbitration has its place, but 

I am talking about mandatory arbitration. 

219 

Chances are if you have a cell phone or a credit card or if you 

work, you are likely to have signed a contract with a mandatory 

arbitration clause. These clauses basically say if we violate your 

rights, you cannot take us to court. You have to take it to an arbitrator. But then the fine print essentially says an arbitrator that 

we pay, who depends on us for work, and who makes decisions in 

secret. 

So a lot of people are denied their opportunity to come before the 

court. Unfortunately, we have seen a series of decisions from the 

Supreme Court that have made it even harder for people to get 

that fair shake, as you put it. 

In 2001, in a case called Circuit City, the Court was asked to decide whether workers’ employment contracts could be subject to 

mandatory arbitration. This really should have been a no-brainer 

because the Federal Arbitration Act of 1925, the law that says 

which arbitration agreements should be enforced, specifically exempts ‘‘contracts of employment of seamen, railroad employees, or 

any other class of workers engaged in foreign or interstate commerce.’’ 

Organized labor had asked for this specific language to be included to make sure the Act would not apply to workers’ employment contracts. In fact, then-Commerce Secretary Herbert Hoover 

said during a Senate hearing, ‘‘If the objection appears to the inclusion of workers’ contracts in the law’s scheme, it might well be 

amended by stating that nothing herein contained shall apply to 

the contracts of employment of seamen, railroad, employees, or any 

other class of workers engaged in interstate commerce.’’ 

Secretary Hoover was saying that if Congress wanted to make 

clear that the Federal Arbitration Act did not apply to employment 

contracts, Congress should put this language in the statute. So 

Congress put the language in the statute. 

But when Justice Kennedy wrote the majority opinion in Circuit 

City, he ignored the history. He wrote, and I quote, ‘‘We need not 

assess the legislative history of the exclusion provision.’’ 

Let me repeat that. ‘‘We need not assess the legislative history 

of the exclusion provision.’’ 

And based on a strained reading of the law, he decided that the 

exception only applied to workers in the transportation business, 

not any class of workers. This means that instead of all workers 

getting their day in court like Congress clearly intended, only 

transportation workers would get it, and that excludes the vast majority of American workers. 

General Kagan, I really disagree with this case and the way the 

Court ignored Congress’ intent. That is why I was glad to hear 

your response to one of Senator Schumer’s questions about how the 

Court should interpret statutes. You said that, among other things, 

‘‘I think a judge should look to the history of the statute in order 

to determine Congress’ will.’’ 

General Kagan, we spend a lot of time in hearings and on the 

floor debating legislation. How much weight do you think a judge 

should give to the deliberations of Congress and the reasons why 

we passed the law in the first place? 

Ms. KAGAN. Well, Senator Franken, the most important thing in 

interpreting any statute—in fact, the only thing that matters in inVerDate Nov 24 2008 12:24 Aug 23, 2011 Jkt 067622 PO 00000 Frm 00229 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\67622.TXT SJUD1 PsN: CMORC
220 

terpreting any statute is Congress’ intent. Congress gets to make 

the laws under Article I of the Constitution, and what the Court 

should be doing in applying those laws is trying to figure out what 

Congress meant and how Congress wanted the laws to be applied. 

And that is the only thing that the Court should be doing. 

Now, sometimes that can be a difficult task. New situations come 

up. The statutory language, it is not clear how the statutory language applies to those new situations. Or sometimes Congress 

might simply not have thought of particular situations. Language 

is by necessity inexact. And so there are going to be cases 

which—— 

Senator FRANKEN. Do you agree with Justice Kennedy we need 

not assess the legislative history of something? 

Ms. KAGAN. Well, I would say this. I would say where the text 

is clear a court should go with the text. Where the text clearly covers some situation, the Court should do that. The Court should not 

rewrite the law. 

Senator FRANKEN. But shouldn’t the Court assess that, make an 

assessment there? 

Ms. KAGAN. Well, I think if the text is clear, Congress should 

not—the Court should not rewrite the law. But where the text is 

ambiguous, which often happens—— 

Senator FRANKEN. And wouldn’t you have to assess whether it is 

ambiguous? 

Ms. KAGAN. Yes. I mean, the first step—— 

Senator FRANKEN. So what Justice Kennedy said does not quite 

stand up to that, does it? 

Let me move on on that. We in Congress, we want to make sure, 

all of us, that our intentions are clear so that 75 years from now 

the Supreme Court does not just ignore the purpose behind the 

laws we are passing. How can we do that? How do we do that? How 

do we make it clear to future Justices? 

Ms. KAGAN. Well, the Court surely would be helped if Congress 

spoke as precisely and exactly and as comprehensively as it could 

in all situations. You know, there are some instances where the 

Court just has legitimate difficulty trying to figure out what Congress intended, and where judges—all of whom agree that what 

they should be doing is doing what Congress intended—have difficulty determining that or disagree about what that means. And 

certainly to the extent that Congress can make its intentions clear 

in legislation and can specifically spell out how it intends for the 

law to operate, Congress ought to do so. 

And, of course, you know, to the extent that the Court gets something wrong with respect to a statute—and this has happened, you 

know, many times in recent years and in prior years as well. To 

the extent that the Court gets something wrong, of course, Congress can come back and change it and make it clear that the 

Court got it wrong and also use it as an opportunity even to make 

clear its intentions with respect to a general area of law. 

Senator FRANKEN. OK. It is hard to do 78 years from now, but 

we will try. 

Circuit City was a Rehnquist Court decision. Just last week, the 

Roberts Court did Circuit City one better in helping employers 

keep their workers out of court and into arbitration. It happened 

221 

in a case called Rent-A-Center v. Jackson, which Senator Feingold 

noted yesterday. Rent-A-Center had 21,000 workers and hundreds 

of millions of dollars in annual profits. It also forces its workers to 

sign a mandatory arbitration agreement as a condition of employment. 

Antonio Jackson, an African-American account manager in Nevada, had been working for Rent-A-Center for years, but he was 

frustrated because he watched his company pass him over for promotions again and again. Instead, they promoted workers who had 

less experience and who were not black. Although Jackson signed 

an employment contract agreeing to arbitrate all employment 

claims, this seemed blatantly unfair, and he sued Rent-A-Center. 

But the company argued that only the arbitrator could decide 

whether the arbitration clause was unfair. 

Let me repeat that: Rent-A-Center argued that only the arbitrator could decide whether the arbitration clause was unfair. 

Last week, the Roberts Court sided with Rent-A-Center. Talk 

about not getting your day in court. Now you cannot get your day 

in court to get your day in court. 

Now, General Kagan, I know I probably cannot ask you about 

whether you think this case—well, I can ask you, but you will not 

answer—whether this case was correctly decided, but I would like 

to ask do you still agree with what you said yesterday to Senator 

Kyl, that ‘‘one of the glorious things about courts is that they provide a level playing field in all circumstances.’’ And that we need 

to ‘‘make sure that every single person gets the opportunity to 

come before the court and gets the opportunity to make his best 

case and gets a fair shake’’ ? 

Ms. KAGAN. Well, I do agree with that very strongly, Senator 

Franken, and if I might, if I might just return to this question of 

statutory interpretation that you started off with, because I did 

want to make clear that when a text is ambiguous, which, you 

know, frequently happens—which frequently happens—that I think 

that the job of the courts is to use whatever evidence is at hand 

to understand Congress’ intent. And that includes exploration of 

Congress’ purpose by way of looking at the structure of the statute, 

by way of looking at the title of the statute, by way of looking at 

when the statute was enacted and in what circumstances, and by 

way of looking at legislative history. 

Now, I think courts have to be careful about looking at legislative 

history and make sure that what they are looking to is reliable. 

But courts should not at all exclude signs of congressional intent 

and should really search hard for congressional intent when the 

text of the statute itself is unclear. 

Senator FRANKEN. Good. Then I think you and I agree that Justice Kennedy may have been in error when he said that the Court 

does not have to assess the legislative history. 

Ms. KAGAN. Well, I suspect that—I do not know the case very 

well. I suspect that Justice Kennedy may have meant that he 

thought that the text was clear and, therefore, the legislative history was not something that should appropriately be explored. But 

I am just guessing on that. 

Senator FRANKEN. OK. I think you are guessing wrong. 

Ms. KAGAN. OK. 

222 

[Laughter.] 

Senator FRANKEN. General Kagan, you have gotten a lot of questions about—— 

Ms. KAGAN. It is not the first time in my life. 

Senator FRANKEN. Nor the last. We all guess wrong. 

You have gotten a lot of questions about Citizens United. I am 

going to try to bore down a little deeper on this. First I want to 

make it totally clear that a full 80 percent of Americans that hear 

about this case just think it is a bad idea. The first problem is the 

impact it is going to have on our communities and our ability to 

run those communities, because the potential for corporate influence on our elections under Citizens United is going to dwarf what 

it is today and may very well totally drown out individual citizens. 

Before Citizens United, if a corporation wanted to run an ad that 

said ‘‘Vote for Joe,’’ it could only use money from its political action 

committee, or PAC. Those PACs relied on donations from employees and executives, individuals in those corporations. In the 2008 

cycle, all Federal PACs combined spent a total of $1.2 billion. Now, 

after Citizens United, if a corporation wants to run an ad that says 

‘‘Vote for Joe,’’ it can use all of its money—its treasury funds, its 

revenues, all of its money. In the 2008 cycle, the combined gross 

revenue for Fortune 100 companies was $13.1 trillion. Now, obviously, they are not going to spend all that money on ads or all of 

it on just any election. They would spend a lot—but they can spend 

billions. They could have spent under this law billions when we 

tried—when we passed the law that took the lead out of gasoline, 

when we passed the law that required seat belts, and they are 

going to spend it when we try to protect against oil drilling in deep 

water when we do not have safety precautions or Wall Street fraud. 

They are going to spend their money against the consumer and environmental laws that protect our families and our homes. 

General Kagan, this is one of the last things that Justice Stevens 

said in his dissent: ‘‘At bottom, the Court’s opinion is a rejection 

of the common sense of the American people who have recognized 

the need to prevent corporations from undermining self-government since the founding.’’ 

What do you think that means, General Kagan? 

Ms. KAGAN. Well, Senator Franken, when I argued the case, I 

thought that the strongest argument of the Government was the 

very substantial record that Congress puts together, which I think 

reflected the sense of the American people that these monies from 

these actors spent in this form could have substantial corrupting 

effect on the political process. And that is the argument that the 

Government made to the Court. 

Now, as I have indicated before, I approach this case as an advocate, not as a judge, and there are certainly strong arguments on 

the other side as well. And in particular, there is the fact that political speech is the highest form of speech under the First Amendment entitled to the greatest protection, and that the courts should 

be wary of Congress regulating in this area in such a way as to 

protect incumbents to help themselves. And I think that those are 

strong arguments. 

The argument that the Government made in defense of the statute as against that was really an argument about the strength of 

223 

the governmental interest involved in this case in preventing corruption from this kind of expenditure of money. 

Senator FRANKEN. General Kagan, another problem with Citizens 

United was how it was decided, because it was decided in a manner 

that was really unfair to the American people, and let me explain. 

When you go to trial, you make arguments and you introduce 

evidence to back up those arguments. Now, you cannot introduce 

evidence after trial, so if you appeal, you cannot just come up with 

a new argument because the appeals court does not have any evidence to decide it on. 

This is why there is an old rule that the Supreme Court should 

not answer questions they are not asked. Or as Justice Scalia said 

to you in your first oral argument on this, ‘‘We are not a self-starting institution. We only disapprove of something when somebody 

asks us to.’’ 

If the Court expands the scope of the question before it—this is 

me now—it will not have the evidence it needs to decide that question. But that is the opposite of what the Court did in Citizens 

United. In Citizens United, the plaintiff argued and presented evidence on this question: Should a certain part of McCain-Feingold 

apply to certain kinds of nonprofits? And that is not the question 

that the Roberts Court answered. 

This is how the Roberts Court answered: No, McCain-Feingold 

should not apply to nonprofits or for-profits or unions, and neither 

should a different law that Congress passed 40 years ago. In fact, 

both of those laws are unconstitutional for everyone. 

Because the Roberts Court answered a question it was not asked, 

it never got evidence on how McCain-Feingold was actually affecting most nonprofits or any for-profit corporation or union. 

This is what you said in the case, in your argument—or this is 

what you said actually here in the hearing: ‘‘What the Government 

tried to argue in Citizens United was that Congress had compiled 

a very extensive record about the effects of these expenditures by 

corporations and unions on the political process. And what the Congress had found was that these corporations and unions had a kind 

of access to Congressmen, had a kind of influence over Congressmen that changed outcomes and that was a corrupting influence on 

Congress. That was a many, many thousand page record.’’ 

So this finding of fact was ignored because it had to be. As Justice Stevens said, ‘‘the record is not simply incomplete or unsatisfactory. It is non-existent.’’ 

General Kagan, you were criticized at the beginning of this for 

being outcome-or results-oriented, especially in your bench memos 

to Justice Marshall. How is this for guaranteeing an outcome? You 

wait until the case is out of the trial court. You wait until it is too 

late to submit evidence. You wait until the institution that wrote 

the law can no longer submit evidence. You wait until the appeal 

has been argued in the circuit court. You wait until the oral argument before the Supreme Court—you wait until the argument, oral 

argument before the Supreme Court. And then you change the 

issue under consideration to get the outcome you want. If that is 

not outcome-oriented, I do not know what is. 

224 

I would love to ask you if you agree, but, you know, I do not want 

to force you to criticize your future colleagues. So instead let me 

see if you agree with some general statements of law. 

In general, do you agree with Justice Scalia that the Supreme 

Court is not a self-starting institution that should only disapprove 

of something when somebody asks it to? 

Ms. KAGAN. That is certainly true. It is a basic postulate of the 

way we run our judicial system that the Court does not issue advisory opinions, that the Court does not issue opinions on anything 

except what is necessary to decide a concrete case or controversy 

before it. 

Senator FRANKEN. OK. How about this? Here is something that 

Chief Justice Roberts said when he was a circuit court judge. He 

said, ‘‘If it is not necessary to decide more, it is necessary not to 

decide more.’’ Do you agree with that? 

Ms. KAGAN. I do agree with that, Senator Franken. That, too, is 

a basic principle of our legal system. It is a requirement of—or it 

is a foundation stone of judicial restraint. 

Senator FRANKEN. Well, I am glad you agree with that. 

Do you agree with Chief Justice Roberts that courts should decide matters as narrowly as possible? 

Ms. KAGAN. Yes, I do, Senator Franken, in part for the reasons 

I was discussing with Senator Whitehouse, that this leads to a kind 

of restrained decisionmaking in which consensus can be most easily 

achieved and appropriate and restrained outcomes most easily 

reached. 

Senator FRANKEN. OK. I would be the last person to draw conclusions from your answers. But—— 

[Laughter.] 

Senator FRANKEN. To be honest, in Citizens United I do not think 

Justice Stevens—I am sorry, Justice Scalia or Chief Justice Roberts 

adhered to their own principles. I think they were legislating from 

the bench. 

I want to talk about—a lot of people talked about Exxon, but 

there are a couple of other Supreme Court decisions that dramatically weakened our ability to protect the environment. Senator 

Feinstein asked you about one of those cases yesterday, the 

Rapanos case, and you said that you were not familiar with it. So 

let me just summarize it very quickly. 

In Rapanos, the Supreme Court looked at what kinds of wetlands 

are protected in the Clean Water Act. After Congress passed the 

Act in 1972, the EPA and the Army Corps of Engineers passed regulations to enforce it. Basically, the Act said that it covered navigable waters. But the Army Corps realized that to protect those 

navigable waters, it also had to protect the wetlands and streams 

that fed into or were near those navigable waters, you know, because it is water. And so they did. 

The Corps extended coverage to those waters, too, but in 

Rapanos the Court struck down these regulations because it said 

they were too broad even though they had been placed for up to 

30 years and were actually necessary to protect America’s water. 

And this water is what people drink, people catch fish in, and that 

our kids swim in. 

225 

Thanks to this case and a similar case known as SWANCC, the 

Clean Water Act now does not cover half of the nation’s largest polluters, and thanks to these cases, a lot of western Minnesota is outside the protection of the Clean Water Act, and so is a large part 

of the Gulf Coast. 

Yesterday you discussed the Chevron doctrine with Senator Feinstein. As you explained, Chevron says that the courts should generally defer to agencies and their regulations because ‘‘Congress 

would have wanted that the entity with political accountability and 

expertise to make the decision rather than the courts.’’ 

So let me ask you a few questions. General Kagan, can you tell 

me how many of the Supreme Court Justices have a degree in the 

environmental sciences? 

Ms. KAGAN. Well, gosh, I do not know, Senator Franken. 

Senator FRANKEN. I do not either. I think it is none. 

Ms. KAGAN. Okay. 

[Laughter.] 

Senator FRANKEN. Can you tell me do they have a degree in public health? We are going to both guess together. 

Ms. KAGAN. I will guess none. 

Senator FRANKEN. That is what I would guess, too. 

Now, of course, the Court has to make decisions in areas where 

they do not have expertise or personal knowledge. But when they 

rewrote the Army Corps of Engineer regulations on wetlands, the 

Roberts Court did not have any special subject matter expertise on 

that issue. 

General Kagan, what does Chevron protect if it does not protect 

regulations issued 30 years ago that were never questioned by Congress and were enforced repeatedly during that period? 

Ms. KAGAN. Well, Senator Franken, Chevron says that where 

there is ambiguity in a Congressional statute—where there is not 

ambiguity, you just go with what the statute says; but where there 

is ambiguity, that an agency’s interpretation of what Congress intended for a statute to mean should receive deference from the 

courts. And the idea really is that the agency is better able to clarify that ambiguity because it has a kind of expertise in the area 

and also because it has real political accountability through the 

President, and the courts have neither expertise in one of these 

various technical subjects, nor do the courts have electoral legitimacy. The courts are by design cut off from the people. 

So for both competence reasons and legitimacy reasons, Chevron 

says, as between courts and agencies in interpreting unclear statutes, you should give the nudge to agencies, that courts should 

defer to their decisions. It is actually a Justice Stevens opinion. I 

think it is one of the most cited cases, maybe the most cited case 

in Supreme Court history. 

Senator FRANKEN. And yet in this case, the Court did not give 

deference to that, did it? 

Ms. KAGAN. Senator Franken, as I indicated to Senator Feinstein, I have not read this opinion ever. I think that, you know, 

this might be one where—— 

Senator FRANKEN. If you trust me on my description of it, which 

is—oh, never mind. Why would you do that? 

[Laughter.] 

226 

Senator FRANKEN. OK. Let us say my description was accurate. 

Does it strike you that maybe they did not give proper deference— 

I know it is a hypothetical, but my description would be accurate. 

Ms. KAGAN. You know, I have been an administrative law professor, and Chevron is actually something that I have written a 

good deal about, and I think I have written about it in a—beyond 

the fact that Chevron is obviously settled law, going forward, I 

have to say if you look at my writings on administrative law, you 

know that I am a sympathizer with Chevron for the kinds of reasons that I just suggested. 

Senator FRANKEN. Thank you. Thank you for your indulgence, 

and I have a minute and 15 left. You know what? I am going to 

yield that time. 

[Laughter.] 

Ms. KAGAN. That is very good of you. 

Chairman LEAHY. We have talked a great deal about precedent 

here, Senator Franken. I hope that is a precedent others will follow. 

You know, I am one of these people who is always hopeful. Sometimes my hopes are dashed. But, in any event, we will take a very 

brief break, and then we will come back. 

[Recess 11:01 a.m. to 11:24 a.m.] 

[AFTER RECESS] 

Chairman LEAHY. We’ll have the nominee back and we will—now 

Senators will have up to—up to—20 minutes to ask questions in 

the second round. I emphasize the ‘‘up to’’, and I hope any Senator 

who feels that they don’t—especially as most questions have been 

asked—I realize not everybody’s asked them—if they don’t feel that 

it’s necessary to go and repeat some things, they might not use all 

their time. But we’re doing this so we can finish with the nominee 

today, and then we have outside witnesses. 

Both Republicans and Democrats have outside witnesses. We 

have to figure out when we can use them. All of this, because of 

the change in the schedule with the Byrd memorial. We’ve been 

asked not to hold hearings from 10 a.m. to 4 p.m. tomorrow when 

he’s lying in repose in the Senate chamber, then of course on Saturday, or Friday and Saturday, there are memorial services. So I 

will reserve my time and I yield to Senator Sessions. 

Senator SESSIONS. Thank you, Mr. Chairman. 

Solicitor General Kagan, I enjoyed our conversation yesterday, 

but was disappointed a bit with regard to how you describe the situation at Harvard and the blocking to the military to have full and 

equal access to the recruiting offices, as required by law. 

I think that the White House has been spinning that story inaccurately, and I believe your testimony was too consistent with an 

inaccurate spin and didn’t, frankly, set forth what you did. I was 

a bit disappointed at that. 

I’d like to follow up and go in a little different direction today. 

Ironically, and almost amazingly, it fell on your lot as Solicitor 

General to defend that very law, the law of the United States, the 

‘‘don’t ask/don’t tell’’ law that you opposed so much there. 

Let me focus on your responsibility and how you handled it. During your confirmation process, you stated that your ‘‘role as Solicitor General, however, would be to advance not my own views, but 

227 

the interests of the United States’’, and that you were ‘‘fully convinced that you could represent all of these interests with vigor, 

even when they conflict with my own opinions.’’ I think that was 

the right position, the only position, you could take if you were to 

assume that office. 

And because of your widely publicized opposition to the ‘‘don’t 

ask/don’t tell’’ law and to the Solomon Amendment, you were specifically asked at the hearing if you would be able to defend those 

statutes as Solicitor General and you said that you would. You said 

that your approach ‘‘to cases involving challenges to the statute involving don’t ask/don’t tell ‘‘policy would be the same, and that you 

would ‘‘apply the usual strong presumption of constitutionality’’ as 

reinforced by the ‘‘doctrine of judicial deference to legislation ‘‘involving military matters.’’ 

Now, during your time as Solicitor General, two cases came before you challenging ‘‘don’t ask/don’t tell.’’ They came up from the 

Federal Courts of Appeals. One case was from the First Circuit in 

Boston, your circuit, filed by 12 plaintiffs, individual different 

plaintiffs. The ACLU and your former colleague, Lawrence Tribe, 

represented that group. 

A second case, Witt v. Department of Air Force, came out of the 

Ninth Circuit. It was filed by a single plaintiff, and the ACLU was 

the attorney in that case, or one of the attorneys in that case. 

So in both cases the plaintiff argued that the Supreme Court’s 

recent decision in Lawrence v. Texas meant that the ‘‘don’t ask/ 

don’t tell’’ law, which says that people who are openly homosexual 

may not serve in the Armed Forces, should be struck down as unconstitutional. In the First Circuit case the court upheld ‘‘don’t ask/ 

don’t tell.’’ The Plaintiff said the law was unconstitutional as applied to them. The court agreed that Lawrence v. Texas called for 

elevated scrutiny, but upheld the statute at that time. 

But the Ninth Circuit did not approach it in that way. They did 

not apply the traditional deference to military issues, as did the 

First. The Ninth Circuit invented a new standard of review for the 

substantive due process challenge, requiring the government to 

make detailed individual findings in these cases. 

Most importantly, unlike the First Circuit, the Ninth Circuit 

failed to acknowledge the need for uniformity in military policies, 

and so the court held that the plaintiff was entitled to a full trial, 

and that every plaintiff, apparently, would be entitled to a full 

trial, something that the military had been resisting steadfastly for 

a number of years. 

And so in the First Circuit case, interestingly, 11 of the 12 plaintiffs didn’t ask for review, even though they had lost the case. I can 

only assume it’s because they were concerned they may lose the 

case if the Supreme Court took it and had a clear view of the law. 

They had, as you know, upheld the Solomon Amendment eight to 

nothing, and I think, based on their history, we could expect the 

Supreme Court to affirm that statute, in my personal judgment. 

So you told the Supreme Court they should not take the case up. 

One plaintiff did ask that it go up. And you contended that the 

Ninth Circuit was a better vehicle, and the Ninth Circuit case, 

shortly before that moment, had already been remanded to the 

trial court to conduct a significant trial that was contrary to the 

228 

position that the Department of Defense had been taking. Indeed, 

it would be difficult, if not impossible, to enforce the ‘‘don’t ask/ 

don’t tell’’ law if you have to have an individual trial in all of these 

cases. 

So it was a severe, damaging blow to the Department of Defense, 

and the Ninth Circuit law would control 40 percent of America. It’s 

the biggest circuit of all. So the result was, neither case was appealed on the law and the position which was contrary to the consistent position of the military, and it undermined their ability to 

have, I think, an effective enforcement, and even and fair enforcement, of the policy. 

So I guess I would ask you why you made that decision. It means 

it’s important to me, based on your representation to the court, 

that I’ll understand that you were fully committed to vigorously defending that law, because I think that was your responsibility. It 

was an oath you took. 

I’m having a difficult time of understanding why, even though it 

would have been an interlocutory appeal—I know it would have 

been—but it was an interlocutory appeal of the Third Circuit case 

that the Supreme Court took and promptly reversed their decision. 

So I guess I’d just like to hear you state, in as much specificity as 

you can, why you felt it necessary not to appeal either one of these 

cases. 

Ms. KAGAN. Sure, Senator Sessions. I think that we have acted, 

I have acted, in the Solicitor General’s Office consistently with the 

responsibility, which I agree with you very much that I have, to 

vigorously defend all statutes, including the statute that embodies 

the don’t ask/don’t tell policy. 

So let’s take the Pietrangelo case first, which was the First Circuit case, where the First Circuit upheld the don’t ask/don’t tell 

policy. Mr. Pietrangelo brought a challenge to that decision. The 

question was, you know, he was challenging a decision that the 

government very much approved of, which was a decision that 

upheld the don’t ask/don’t tell policy. And we told the court in no 

uncertain terms not to take the case, and we defended the statute 

vigorously. We told the court not to take the case because the statute was constitutional. 

So in that Pietrangelo brief that I filed, and it’s a brief on which 

I’m counsel of record, the—the argument is made vigorously that 

the don’t ask/don’t tell statute is fully constitutional given the appropriate standard of review, and particularly given the deference 

that courts properly owe to the military. 

So the Pietrangelo brief is a brief—and again, I’m counsel of 

record on that brief—in which the U.S. Government vigorously defended the don’t ask/don’t tell policy—and statute, more importantly -and told the court not to take a case which challenged a decision upholding that statute. 

Now, as to the second matter, the Witt matter, as—as—as you 

said, the Witt matter is interlocutory in nature. And what that 

means, for people who aren’t familiar with these legal terms, is 

that it means that the case is in the middle and that the government can, after remand at a later stage, continue to defend the 

don’t ask/don’t tell statute in this very case. 

229 

Now, we engaged in very serious discussions with the Department of Defense about the appropriate approach here in order to 

defend the don’t ask/don’t tell statute, because I agree with you, 

Senator Sessions, that the Ninth Circuit decision undercuts that 

statute. It makes it harder for the government to carry out its policies under that statute. 

And the question that we had to decide was whether to challenge 

that Ninth Circuit decision, which I think does—is in real tension 

with the don’t ask/don’t tell statute. Whether—the question we had 

to decide was whether to challenge that Ninth Circuit decision at 

an early stage or at a late stage of the case. It was a matter of timing. And we talked a good deal about this, of course, amongst ourselves, but also with the Department of Defense, and we decided 

that the better course was actually to wait on it and to accept the 

court’s remand. The case is not at all closed. Instead, the case is 

on remand in the—in the District Court to take that remand, and 

in the event that we didn’t win the case on remand or in the Ninth 

Circuit again, in that event, then have the option to, and presumably would, take the case to the Supreme Court to challenge the 

Ninth Circuit’s holding. 

And when we did this, we wrote a letter to the Judiciary Committee. It’s called a 530 D letter, which is a letter which the Justice 

Department writes whenever there’s a moment at which it does 

not—does—does not contest a decision that is inconsistent with a 

Federal statute. We wrote a 530 D letter to the Senate Judiciary 

Committee and we basically laid out this explanation. 

We basically said, we still have the opportunity to approach the 

court and ask the court to take certiorari in this case, and we presume that we will use this opportunity if we don’t get the case dismissed in the District Court, but that we think it’s actually better 

to go to the District Court, to take the remand, and then to come 

back to the Supreme Court if it’s necessary to do so. 

And the reason that that approach was chosen was because we 

thought that it was—it would be better to go to the Supreme Court 

with a fuller record, and with a fuller record about the particular 

party involved, maybe more importantly, with a record that would 

show exactly what the Ninth Circuit was demanding that the government do. 

Because what the Ninth Circuit was demanding that the government do was, in the government’s view and particularly in DoD’s 

view, a kind of strange thing where the government would have to 

show, in each particular case, that a particular separation caused 

the military harm rather than to view it in general across the statute. 

One reason we thought that the remand would actually strengthen the case in the Supreme Court was because the remand would 

enable us to show what this inquiry would look like, what the 

Ninth Circuit’s—the inquiry that the Ninth Circuit demanded 

would look like, and to suggest to the Supreme Court, using the 

best evidence there was, how it was that this inquiry really would 

disrupt military operations. 

So that was our decision-making process. It was, as I say, a decision-making process that we wrote about to Congress when it occurred, and stated specifically that this was a timing issue for us, 

230 

that we were not going to the Supreme Court at the earliest possible moment, but instead waiting. 

And I should just put one other factor into the mix which I left 

out along the way, which is that there is a Supreme Court presumption that cases should not be taken in an interlocutory posture, that instead the Supreme Court ought to—that the Supreme 

Court ought to wait and that parties ought to wait before asking 

the Supreme Court to take a case until the case is sort of well and 

truly over, when it’s not in the middle of things. 

Now, I don’t want to overstate that. That’s a presumption. It’s 

not a flat rule. It’s a presumption against interlocutory review, but 

it was something that we weighed in the balance. Here we had a 

presumption against interlocutory review and we had some good 

reasons for thinking that our case would be made stronger if we 

did not take the case in an interlocutory posture, but instead waited for the remand to be completed before we went to the court and 

asked the court to review the Ninth Circuit decision. 

Senator SESSIONS. Well, I appreciate that position. I will look at 

it and review it. It does appear, however, that your position was 

in harmony with the position that the ACLU took, who was on the 

other side of the case. And I see no harm in taking and attempting 

an interlocutory appeal. I do note that they took it in the Third 

Circuit Solomon Amendment case and promptly reversed—you 

know, rendered a decision consistent with the government’s position. 

I think the last refuge of a big government scoundrel is the Commerce Clause, it seems. Everything, when you have no other peg 

to hang your hat on, you claim that it impacts commerce. You cited 

yesterday the Lopez and Morrison case a number of times, which 

seems to defend legitimate—say that legitimate regulations defended under the commerce clause must, wonder of wonders, deal 

with economic commercial-type matters. 

I guess, first, have you ever commented—and you cited that—to 

Senator Coburn, I think, and to others, that this could have an impact on his question, which dealt with, could you tell an individual 

American how many vegetables they should have for lunch every 

day, or something to that effect. 

What’s your view? Have you expressed any opinions previously 

on Lopez and Morrison? They were very controversial at the time. 

And do you agree with those 5–4 decisions? 

Ms. KAGAN. Gosh, I don’t think that I’ve expressed any views in 

my academic writing or anything I can think of on Lopez and Morrison. You know, I’ve given a lot of speeches in my life, but, you 

know, I can’t think of any place where I specifically addressed 

those issues. I think that they are settled law, that they are part 

of the jurisprudence of the Commerce Clause going forward. 

Senator SESSIONS. Could I ask you about that? You’ve said that 

it’s settled law with regard to the gun case, Chicago, McDonald, 

and Heller. Those were 5–4 cases. Does your definition of settled 

law mean anything more than the normal precedent you would 

give to any of those kinds of 5–4 cases? 

Ms. KAGAN. I think I’ve actually used that phrase with respect 

to a number of cases which people have asked me about. Those are 

a couple, but there are—— 

231 

Senator SESSIONS. I thought you used the phrase interchangeably: precedent, which has a certain amount of power, and then 

you’ve thrown out settled law. To the layman, it seems to be a 

more firm acknowledgement of the power of that ruling. But I want 

to know, do you mean any difference when you use those two 

phrases? 

Ms. KAGAN. I don’t mean any difference. What I mean to say 

when I use those phrases is, these are decisions of the court. They 

are decisions of the court that are entitled to all the weight that 

any decision of the court has as precedent going forward, that I 

have no thought, no agenda, no purpose, no—you know, remotely 

no plan to—to—to think about reversing any of them, that these 

are cases that I accept as decisions of the court going forward. 

Senator SESSIONS. All right. 

Justice Sotomayor said a similar thing about the Heller case, and 

it didn’t bother her one bit being the dissent in the McDonald case 

Monday. So you’re not saying that you’re binding yourself to be a 

6–3 vote with now six members of the Supreme Court on the gun 

cases, and you’re not binding yourself and suggesting you feel 

bound by Lopez and Morrison, are you? 

Ms. KAGAN. Senator Sessions, it wouldn’t be appropriate for me 

to bind myself with respect to any future case that came before me. 

It wouldn’t be appropriate for me in any case to say, oh, I promise 

that I’m going to take a case like that and do X, Y, Z with it. That 

wouldn’t be appropriate. 

Senator SESSIONS. Well, I think that’s what I expected. I think 

any—I think you’ll go to the court free to vote either way on any 

of those cases, and we should fully understand it. 

Thank you. 

The Chairman. Thank you very much. I’m still withholding my 

time, but I will take a minute of my time to put into the record 

a letter sent to Senator Sessions and myself, letters of support for 

the Solicitor General. We got this from First Lieutenant David 

Tressler, who’s currently deployed with the U.S. Army Reserve in 

the coast region province in Afghanistan. First Lieutenant Tressler 

is a 2006 Harvard Law School graduate. He was recruited by the 

military during Solicitor General Kagan’s tenure as dean, enlisted 

in the Army Reserve after his graduate. He’s now employed at a 

combat outpost in Afghanistan. 

Senator Graham has been in that area, as I have, and several 

others know it. He writes, ‘‘There was a legitimate legal debate 

taking place in the courts over the Solomon Amendment. When 

court decisions allowed in 2004, Kagan made a decision to uphold 

the school’s anti-discrimination policy. Military recruiters were 

never banned from the campus. During the brief period when recruiters were not given access to students officially through the law 

at the school’s Office of Career Services, they still had access to 

students on campus through other means. 

Immediately following this period in 2005, more graduating students joined the military—more graduating students joined the 

military in any year this decade. ‘‘Her’’, meaning you, ‘‘position on 

the issue was not anti-military and did not discriminate against 

members or potential recruits of the military, nor do I believe that 

they denied the military much-needed recruits in a time of war.’’ 

232 

He continues, ‘‘I’ve heard the Solicitor General Elena Kagan 

speak several times about this issue. She always expressed her 

support for those who serve in the military and encouraged students to consider military service. It was clear she was trying to 

balance the institution’s values underlying its anti-discrimination 

policy, whether genuine support for those who serve or are considering service in the military. Indeed, her sense of DATT injustice 

seems to grow out of her belief in the importance of military—importance and value of military service. I remember that she repeatedly said such while dean.’’ 

Then he concludes his letter—remember, this is addressed to 

Senator Sessions and myself—‘‘I urge you to maintain that focus 

for the remainder of the hearings and refrain from further hyperbole questioning of Ms. Kagan’s support for the men and women of 

the U.S. military. I believe that while dean of Harvard Law School 

she adequately proved her support for those who had served, who 

are currently serving, and all those who felt called to serve, including those like me who joined upon graduation, as well as those patriots who are not permitted to do so under the policy of don’t ask/ 

don’t tell.’’ 

I’ll put that letter in the record and I reserve the balance of my 

time. 

Senator Hatch, it’s over to you. 

Senator HATCH. Well, thank you, Mr. Chairman. Welcome again. 

Happy to see you. Let me just say, some of my colleagues and my 

friends on the other side are really taken aback by some of the arguments on Citizens United and some of the other cases. I’d just 

like to kind of set the record straight on some of those, the Democrats’ efforts to paint the Roberts court as a conservative activist 

court. 

I think those efforts fall short of even the most basic factual scrutiny. The rulings in question were firmly grounded in the law, the 

Constitution, and relevant precedent. In fact, some of the so-called 

examples of ‘‘conservative activist’’ opinions pointed to by Democrats were joined by some of the most liberal members of the court. 

In the most oft-cited case, Citizens United, the ACLU sided with 

the conservatives on the court. 

Take the Exxon Shipping Company v. Baker case. This decision 

was written by none other than Justice David Sooner. Anita 

Totenberg of National Public Radio called David ‘‘a full-fledged 

member of the court’s unabashedly liberal caucus.’’ In that case, 

the court merely held that under maritime law, which we all know 

is largely judge-made, punitive damages cannot exceed actual damages of $1 billion. You know, I see a lot of beating the breast on 

these things. 

Let’s just take the Citizens United case—it’s an important case— 

v. Federal Election Commission. The case is usually cited in Democrat critiques of the court. This is the only one in which the court 

actually struck down an act of Congress. They did so for a simple 

reason: the law passed by Congress violated fundamental law, the 

First Amendment of the United States of America, the U.S. Congress—or Constitution, excuse me. The law in question prohibited 

the broadcast of political speech critical of politicians in the runup to an election. 

233 

In defending the law, I might add, Solicitor General Kagan and 

her office argued that the government had the authority to prevent 

the publication of movies and other forms of political speech, such 

as even books or pamphlets—although General Kagan did limit her 

critique to pamphlets at the time—those movies, books or pamphlets that advocated for or against candidates. Even the liberal 

American Civil Liberties Union filed a brief arguing that the law 

was facially unconstitutional and a poorly conceived effort to restrict political speech should be struck down. 

Now, faced with a law through which Congress exceeded its authority, the courts applied the Constitution and struck down the 

law. The majority’s opinion in Citizens United was not an act of judicial activism, it was an act of correction, overruling a 20-year-old 

case erroneously decided by five justices who clearly substituted 

their policy views on how elections should be conducted to the dictates of the First Amendment. 

Now, the court simply returned the doctrine it espoused in the 

1976 case of Buckley v. Vallejo, which said that, ‘‘The concept that 

government may restrict the speech of some elements of our society 

in order to enhance the relative voice of others is wholly foreign to 

the First Amendment.’’ 

Now, this is an important point I think just has to be pointed 

out. Democrats claims that Citizens United overruled 100 years of 

precedent are simply untrue. The 100 years claim points to the 

Tillman Act passed in 1907, which barred contributions, namely 

given to candidates. Citizens United was about expenditures, 

money spent on independent advertising. 

The first Federal law limiting corporate and labor union expenditures was not passed until 1947 and was not addressed by the Supreme Court until the 1970s. Plus, they put out there at least 25 

cases that were precedential that Citizens United basically backed. 

Now, to get to you, General Kagan, let me just say this. I also 

want to look briefly at another free speech case, and that’s United 

States v. Stevens. The defendant argued that the Federal statute 

prohibiting the sale of depictions of animal cruelty was unconstitutional. In your brief defending the statute you made this argument: 

‘‘Whether a given category or speech enjoys First Amendment protection depends upon a categorical balancing of the value of the 

speech against its societal cost.’’ 

Now, in his opinion for the court, Chief Justice Roberts responded to your theory this way: ‘‘As a free-floating test for First 

Amendment coverage, that sentence wherein you stated that 

whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the 

speech against its societal costs’’, he said that ‘‘as a free-floating 

test, he said, for First Amendment coverage, that sentence is startling and dangerous.’’ 

Now, I know you were representing your client, the United 

States, in this case, but you certainly did not have to make that 

unusual argument. Now, here’s what I’m concerned about. It 

sounds a lot like other subjective theories that give judges a lot of 

power that you have discussed in your law journal activities. 

Whether it is focusing on hidden subjective motives rather than 

actual objective effects, imposing restrictions based on the identity 

234 

of the speaker, or here, basing freedom of speech on an assessment 

of value and cost, I’m really troubled by how much power your arguments and theories appear to give to judges. Now, am I wrong 

to be concerned about this? 

Ms. KAGAN. Senator Hatch, I think you are wrong to be concerned about it. Let me first talk about the United States v. Stevens 

brief. It’s as hard case. Congress had passed a statute and it was 

a statute designed to deal with horrific acts of animal cruelty, including these things that I didn’t know existed, these crush videos. 

Senator HATCH. That none of us would like, that’s for sure. 

Ms. KAGAN. But it was—it was a statute that was—I hesitate to 

criticize Congress’ work, but it was a statute that was not drafted 

with the kind of precision that made it easy to defend from a First 

Amendment challenge. And we thought that our best argument, 

really the only argument that we had, was to analogize the statute 

to other categories of expressive activity that the court had held 

were simply not protected by the First Amendment. 

And most notably, the two categories that we used in that—in 

that brief were obscenity and child pornography, and those are categories where I think the court has done this kind of categorical 

balancing that I spoke of—that, you know, we spoke of in the brief, 

where the court has said, look, when it comes to obscenity or child 

pornography—child pornography is—is an especially apt example 

because the harm that Congress was trying to get at here—what 

Congress was trying to do was to turn off the spigot of distribution 

so that these materials would not be made in the first place. That 

was the theory that the court used to say that child pornography 

could be regulated under the First Amendment, that if we shut 

down the mechanisms of distributing and—and this material, nobody would produce this material. That’s what Congress—that was 

clearly Congress’ focus in passing this animal cruelty statute. 

So what we tried to do, was to analogize this statute to the child 

pornography laws that the court had upheld in Ferber, and to say 

that the court should uphold this statute for the identical reason 

that it upheld the child pornography laws, that the court should realize the extraordinary harms of this—of this speech and should realize the way in which this regulation was really aimed at stopping 

the initial production, the initial horrific acts that went into the 

production of this speech. 

That was—that was the government’s view. It was a view that 

was accepted by Justice Aleto in the case. He was the only vote we 

got, but he essentially accepted that theory. I think it was a very 

hard case because it was—again, I hesitate to criticize Congress’ 

work, but another statute would have been easier to defend on 

First Amendment grounds, but we tried to do the best we could 

with it. 

Senator HATCH. You and I agree on that. 

I still have just a couple of questions about the military recruiting issue. You said yesterday that ‘‘the only thing that was at issue 

was essentially the sponsoring organizations, whether it was the 

Office of Career Services, or instead the Student Veterans Organization.’’ Now, it seems to me, though, that in addition to who sponsored the recruiters, the real question was what they were able to 

offer. 

235 

Ms. KAGAN. I’m sorry. What they were able? 

Senator HATCH. What they were able to offer. The law, after all, 

says nothing about sponsors and it says nothing about whether recruiting goes up or down in a particular time period. The law requires the same access to campus and students for the military as 

other employers received. The Harvard Law School Veterans Association said that they had a tiny membership, meager budget, and 

no office space. All they could do was facilitate a few student-initiated contacts with military recruiters. All they could do was establish an e-mail account to receive inquiries from students. 

Now, is this what you referred to yesterday as ‘‘full and complete 

access to our students’’, and did you believe that this was an equal 

substitute for what the Office of Career Services provided for all 

other employers, all other legal employers? 

Ms. KAGAN. Senator Hatch, I did believe that it was an equally 

effective substitute, that what our Office of Career Services does, 

they do a good job, but what they do is basically no more than to 

ensure that students know when a military—excuse me, when an 

employer of any kind is coming and to enable a student and the 

employer to hook up with each other. And that’s what our Office 

of Career Services do. They have upwards of 700–800 employers 

that come to our campus every year, and what the Office of Career 

Services does, is to make sure that students know when those 700– 

800 employers are coming and where they’re going to be. 

Senator HATCH. But you have—— 

Ms. KAGAN. And to make sure—— 

Senator HATCH. You have to admit that the facilities weren’t as 

available to the military, to the recruiters, that they would have 

been with the office that you’re describing. I mean, let me make 

that point a little bit more clearly, maybe. Yesterday you also said 

that ‘‘the military, at all times during my deanship, had full and 

good access.’’ 

Now, the Judge Advocate General’s Office, however, stated that 

without access to the Office of Career Services, we are relegated to 

wandering the halls in hopes that someone will stop and talk to us. 

It is our view that denying access to the Career Services office is 

tantamount to chaining and locking the front door of the law 

school, as it has the same impact on our recruiting efforts.’’ 

Again, I’m not asking whether recruiting went up or down or 

whether there was some access to something at all times. The law 

requires the same access for the military as other employers, not 

access that the dean may consider good. Do you disagree with this 

description of the situation by the Office of the Judge Advocate 

General? 

Ms. KAGAN. Senator Hatch, I appreciate that reasonable people 

can disagree about this issue, but I do think that the military, at 

all times, regardless whether it was—whether the Office of Career 

Services was sponsoring or the Veterans Association was sponsoring, had excellent access to our students. And over many years 

prior to my deanship, the Veterans Association had sponsored. 

The Department of Defense had thought that that sponsorship 

was fully adequate to their needs, and I think that there are other 

documents in those records which suggest that, which suggest the 

Department of Defense going in and saying, we met with a lot of 

236 

people and it was great, and we very much appreciate the access 

that we were getting. 

The Office of Career Services really exists as a kind of—it makes 

sure that students know that employers are coming and it makes 

sure that students have the opportunity to talk with those employers. The Veterans Association did a fabulous job of doing the same 

thing. So I do think that the military recruiters had excellent access either way, and in fact that semester in my deanship, the one 

period of 12 in which the Veterans Association did sponsor the 

interviews in that year, military recruiting did go up. I do think 

that the effects in some sense speak for themselves. 

Senator HATCH. OK. Well, let me switch topics again, this time 

to abortion. When Congress debated the ban on partial birth abortion, one issue was whether this particularly gruesome abortion 

method was medically necessary. The American College of Obstetricians and Gynecologists, or ACOG, they call it, is a natural source 

of medical opinion on this subject. 

According to the documents we received, you wrote a memo to 

your superiors in the Clinton White House about this. You noted 

that the American College of Obstetricians and Gynecologists was 

considering a statement that its experts’ panel found no circumstances under which partial birth abortion was the only option 

for saving the life or preserving the health of the woman. You 

wrote, ‘‘This, of course, would be disaster.’’ 

That’s something that does bother me because ‘‘it would be a disaster’’, you wrote, because ACOG opposed the ban on partial birth 

abortion. If anyone ever found out and you wrote that it could leak 

even if ACOG did not officially release its original statement, it 

could have negative political consequences. So you drafted alternative language that would say that partial birth abortion ‘‘may be 

the best and most appropriate procedure and in particular circumstances save the life or preserve the health of the woman.’’ 

Now, that’s a very different spin, and obviously a more politically 

useful spin. 

The ACOG executive board copied your language verbatim into 

its final statement. Your language played an enormous role in both 

legal and political fights over banning partial birth abortion. The 

Supreme Court relied on it when striking down the Nebraska ban 

in Steinhart Carhart. Now, I’m really stunned by what appears to 

be a real politicization of science. The political objective of keeping 

partial birth abortion legal appears to have trumped what a medical organization originally wrote and left to its own scientific inquiry, and that they had concluded. Did you write that memo? 

Ms. KAGAN. Senator, with respect, I don’t think that that’s what 

happened here. 

Senator HATCH. Well, I’m happy to have you clarify it. That’s my 

question: did you write that memo? 

Ms. KAGAN. I’m sorry. The memo which is? 

Senator HATCH. The memo that basically caused them to go back 

to the language of ‘‘medically necessary’’ that was the big issue to 

begin with. 

Ms. KAGAN. Yes. Well, I’ve seen the document and the document 

is—— 

Senator HATCH. But did you write it? 

237 

Ms. KAGAN. Is—— 

Senator HATCH. Is that your memo? 

Ms. KAGAN. The document is certainly in my handwriting. I don’t 

know whether the document was a product of a conversation that 

I had had with them. 

Senator HATCH. So it’s yours. 

Ms. KAGAN. If I could just go back, Senator Hatch. 

Senator HATCH. OK. 

Ms. KAGAN. This was an incredibly difficult issue for everybody 

who was associated with it, for obvious reasons. President Clinton 

had strong views on this issue, and what he thought was that this 

procedure should be banned in all cases except where the procedure was necessary to save the life or to prevent serious health 

consequences to the woman. Those were always his principles. 

We tried, over the course of the period of time when this statute 

was being considered, actually twice, to get him absolutely the best 

medical evidence on this subject possible. And it was not easy because, as everybody in Congress knows, different people said different things about this. There was conflicting evidence. And we 

tried to do our best to bring all the evidence, all the conflicting 

views to his attention. 

In the course of that, we did indeed speak with ACOG. ACOG 

had an interest in this statute and ACOG had views about the statute. What ACOG thought and always conveyed to us was two 

things. What ACOG thought was that, on the one hand, they 

couldn’t think of a circumstance in which this procedure was the 

absolutely only procedure that could be used in a given case. But 

second, on the other hand, that they could think of circumstances 

in which it was the medically best or medically most appropriate 

procedure, that it was the procedure with the least risk attached 

to it in terms of preventing harm to the women’s health. 

And so we knew that ACOG thought both of these things. We informed the President, President Clinton, of that fact. There did 

come a time when we saw a draft statement that stated the first 

of these things which we knew ACOG to believe, but not the second, which we also knew ACOG to believe. And I had some discussions with ACOG about that draft. 

Senator HATCH. OK. My time is about up. Let me just ask that 

question again: did you write ‘‘this, of course, would be a disaster’’ ? 

It’s your handwriting. 

Ms. KAGAN. The—— 

Senator HATCH. You didn’t get that from—— 

Ms. KAGAN. No, no, no. You’re exactly right. I’m sorry. I didn’t 

realize you were referring—— 

Senator HATCH. That’s what I wanted to know. 

Ms. KAGAN. Yes. Yes. No, that’s exactly right. And—and the disaster would be, if the statement did not accurately reflect all of 

what ACOG thought, both—I mean, that there were two parts of 

what ACOG thought. And I recall generally, not with any great 

specificity but recall generally, talking to ACOG about that statement and about whether that statement was consistent with the 

views that we knew it had because they had stated them, that 

there was both, not the only procedure, but also that it was in 

some circumstances the medically best procedure. 

238 

And in their final statement, that—that sentence that it was not 

the only procedure, of course, remained because that is what they 

thought. But we did have some discussions about clarifying the second aspect of what they also thought, which was that it was in 

some circumstances the medically most appropriate procedure. And 

so I think that this was all done in order to present both to President—both to the President and to Congress the most accurate understanding of what this important organization of doctors believed 

with respect to this issue. 

Senator HATCH. Mr. Chairman, I just have one or two sentences 

I’d like to say and then I’ll finish. 

Chairman LEAHY. I’ll give you extra time. 

Senator HATCH. Thank you, Mr. Chairman. 

Well, I’ll tell you, this bothers me a lot, because I know that 

there were plenty of doctors in ACOG who did not believe that partial birth abortion was an essential procedure and who believed 

that it was really a brutal procedure, and it was a constant conflict 

there. And as you know, many in Congress came to the conclusion 

it was a brutal procedure too, that really was unjustified. That 

bothers me that you intervened in that particular area in that way. 

Well, that’s all I’ll say about it, but I just wanted you to be aware 

that that bothers me. 

Ms. KAGAN. Senator Hatch, there was no way in which I would 

have, or could have, intervened with ACOG, which is a respected 

body of physicians, to get it to change its medical views on the 

question. The only question that we were talking about was whether this statement that they were going to issue accurately reflected 

the views that they had expressed to the President, to the President’s staff, to Congress, and to the American public. 

I do agree with you, this was an enormously hard issue. President Clinton found it so, and thought that the procedure should not 

be used except in cases where it was necessary for life or health 

purposes. And we tried to get him the best information we could 

about the medical need for this procedure, something that was not 

always easy, and tried to, in all the statements that he made, to 

make sure and—and any statements—other statements that we 

were aware of to make sure that that information was accurately 

conveyed to the American public. 

Senator HATCH. One of the things I did as an attorney was represent doctors, including some obstetricians and gynecologists. I 

had a lot of experience with them. I hardly ever met anybody who 

thought that was a fair or good procedure. But be that as it may, 

I just want you to know I’m troubled by it, even though I care a 

great deal for you and respect you. 

Thank you, Mr. Chairman. 

Chairman LEAHY. As the Senator knows, because we are going 

to finish this afternoon, I did want to give him extra time on that. 

On my time, I would—and I would ask Senator Hatch to stay for 

this for a moment. I would like to put into the record a letter of 

strong support for Elena Kagan’s nomination the Committee received from Professor Michael McConnell. He is now director of the 

Constitutional Law Center at Stanford Law School. Until recently, 

he was a Federal Appeals Court judge, appointed by President 

George W. Bush to the Tenth Circuit, strongly backed by Senator 

239 

Hatch. When President Bush nominated Professor McConnell, he 

was widely regarded as a brilliant law professor. He appeared before our Committee. He was championed by Senator Hatch. 

Despite his provocative writings including staunch advocacy for 

reexamining the First Amendment jurisprudence, strong opposition 

to Roe v. Wade, strong opposition to the clinic access law, and his 

testimony before Congress that he believed the Violence Against 

Women Act was unconstitutional, I was assured by his response to 

our questions he understood the difference between his role as a 

teacher and advocate and his future role as a judge. He assured us 

he respected the doctrine of stare decisis and would be bound to follow Supreme Court precedent. I supported his confirmation, as did 

other Democratic Senators. He was confirmed. 

Professor McConnell’s approach to the law is thoughtful, but also 

staunchly conservative. That’s why I carefully read his letter to the 

Committee in which he analyzed Solicitor General Kagan’s legal 

philosophy in a number of areas Professor McConnell views as ‘‘important to those who adhere to a generally conservative understanding of the role of the Supreme Court, interpreting the Constitution and the laws of the United States.’’ 

Professor McConnell concludes, ‘‘On a significant number of important and controversial matters, Elena Kagan has taken positions associated with the conservative side of the legal academy. 

This demonstrates an openness to diversity of ideas, as well as a 

lack of partisanship that bodes well for service on the court.’’ 

Professor McConnell concludes his letter, ‘‘In Elena Kagan’s service in the executive branch and her time as dean, she skillfully 

navigated political waters, but she’s also demonstrated another 

quality. Publicly and privately in scholarly work and in her argument that we have for the United States, Elena Kagan has demonstrated fidelity to legal principle, even when it means crossing 

her political ideological allies. This is an admirable and essential 

quality in a judge.’’ 

Senator HATCH. Mr. Chairman? 

Chairman LEAHY. Just as my fellow conservatives asked us to accept that Professor McConnell would be—would uphold the law and 

asked us, as Senator Hatch did, to vote for him, as they did, I 

would note that Professor McConnell concluded that ‘‘Solicitor General Kagan deserves not a grudging acquiescence, but an enthusiastic confirmation as an associate justice of the United States Supreme Court. I would hope that the same credibility that we gave 

him will be given to her.’’ 

Senator HATCH. Mr. Chairman, if I could just add, that’s high 

praise, indeed, because I think Michael McConnell is about as good 

a constitutional expert and lawyer as we have in this country, and 

certainly a great teacher. By the way, just to correct the record, 

even though he thought the Violence Against Women Act was unconstitutional, I was the prime co-sponsor, along with—— 

Chairman LEAHY. I know you were. But that was his position, 

and I voted for him just the same. 

Senator HATCH. So I understand there can be differences. 

Chairman LEAHY. We have about 4 minutes left in the vote. 

Senator HATCH. Thank you, Mr. Chairman. 

Chairman LEAHY. I would yield to Senator Feinstein. 

240 

Senator FEINSTEIN. Thank you very much, Mr. Chairman. 

General Kagan, good afternoon. I know this has been a long 

hearing for you. I have just one question, and then a brief statement I’d like to make. 

My question is on the Establishment Clause. I believe our Nation 

was founded on the principle that the United States would never 

be a place for religious persecution, and therefore that religion and 

the government would remain separate and independent of each 

other. I think that’s part of what makes us a strong Nation, and 

it also protects us from religious discrimination. 

Here is the question, and let me put it all into one: what will be 

your approach to interpreting the Establishment Clause of the Constitution, and how do you believe it works with the Free Exercise 

Clause? And then if you could respond also on the question of 

standing to sue, the ability to bring a case in the Federal court. 

In the case of Hein v. Freedom From Religion Foundation, the 

court held that taxpayers no longer have constitutional standing to 

bring challenges to executive branch expenditures on the grounds 

that they violate the Establishment Clause. The problem is if taxpayers don’t have the ability to bring a case, who does have the 

ability to bring a case and challenge whether the executive branch 

is complying with the Constitution? That’s three things at one 

time, but I think you’re probably able to handle them. 

Ms. KAGAN. OK, Senator Feinstein, I’ll try. I guess I’ll start with 

the question of the two clauses, because both are very important 

to our constitutional system and neither should be subordinated to 

the other. There are times when they are in some tension with 

each other. Now, I think it’s important to recognize that there are 

many times when that’s not so, where they in fact go hand in hand 

and function perfectly well together. But there are some times 

when they may be in tension and it can cut in either direction. 

So suppose that a State—a State government decides to give 

what is called a voluntary accommodation to some religious person, 

essentially a voluntary exemption of that person from an otherwise 

generally applicable law, and does that because the law would impose some substantial burdens on that person’s religious practice, 

and the State thinks, you know what? In those circumstances we 

think that the person should be exempted from the law so that the 

person can follow the dictates of her conscience. 

But then somebody else comes in and says, well, what do you 

mean? You’re giving that exemption but you’re not giving me an 

exemption, and—and—and why are you making that sort of special 

accommodation to this—to this person? That special accommodation must count as an establishment of religion, and so there you 

get a claim where there is an accommodation to religious—the free 

exercise of religion, but then there’s a claim that that violates the 

Establishment Clause part of the First Amendment. And that’s the 

kind of way in which there might be tension. 

But what the court has said with respect to this issue, and there 

seems to me great virtue in this approach, is that in order to prevent that from happening or to prevent it the other way, where the 

State does something in order to—to advance Establishment 

Clause values and then somebody comes in and makes a free exercise claim, either way, what the court has—has stated is that there 

241 

needs to be some play in the joints, there needs to be some freedom 

for government to act in this area without being subject to a claim 

from the other side, some freedom for government to make religious accommodations without being subject to Establishment 

Clause challenges and some freedom on government’s part to enforce the values of the Establishment Clause without being subject 

to free exercise claims. 

That’s not to say how any particular case should come out because sometimes the State goes too far, but that in general there 

needs to be a little bit of play in the joints in order to prevent the 

State from sort of not being able to do anything, from being hamstrung in this area. 

As to—as to what Establishment Clause tests I would use, that 

is a hard, hard question. Right now, there are a multitude of such 

tests. The—the—the most established one, the oldest one, is the 

Lemon v. Kurtzman test, which is a three-part test focusing on the 

purpose of a governmental action, the effect of a governmental action, whether the governmental action has the effect—has the primary effect of inhibiting or advancing religion, and the third part 

of the test focuses on entanglement between the government and 

the religious entity. 

And many, many justices have tried to kill this test. I think that 

there have been six individual justices who at least have expressed 

some skepticism about it. But it—it continues on. It has not been 

reversed. It—it’s—and—and it’s—it’s usually the test that the 

lower courts apply. It’s sometimes applied and sometimes not applied by the Supreme Court, very much depending on the circumstances, but it continues to be the—the—the test—the primary 

test of the court. Now, other justices have had different ways of approaching this issue. 

Justice O’Connor famously asked about whether particular actions would be seen by reasonable observers as endorsements of religion. Some of the justices have used a kind of coercion test, asking whether a governmental action coerces a person in the exercise 

of religion. Justice Breyer has recently talked about religious divisiveness as a way to approach Establishment Clause inquiries. 

And I think that the reason why there are so many tests, and 

I don’t think that I’ve mentioned all of them even, I think that the 

reason is that the Establishment Clause can arise in a very wide 

variety of contexts with a very wide variety of factual situations 

and circumstances. 

Sometimes one test might seem the appropriate way to analyze 

the problem and sometimes another, and it’s very hard to say, kind 

of in the abstract, which is appropriate, that it’s a more—it’s a 

matter of sort of situation sense, if you will. It’s a more contextual 

inquiry as to what’s the approach to use that would make sense. 

In general, I think what the—both First Amendment clauses are 

designed to do, and this is the way in which they work hand-inhand with each other, what they’re both designed to do is to ensure 

that you have full rights as an American citizen. You are a part 

of this country no matter what your religion is. And—and to—to 

ensure that religion just never functions as a way to put people, 

because of their religious belief or because of their religious practice, at some disadvantage with respect to any of the rights of 

242 

American citizenship. So I think that that’s the sort of overall purpose of both parts of the amendment. 

As to the matter of taxpayer standing, I want to be very careful 

here because there is a taxpayer standing issue, as I understand 

it, that will be before the court next term. The—the court has stated that taxpayers generally have standing to make certain kinds 

of Establishment Clause claims, specifically claims against Congressional legislation when—when—that a taxpayer, by virtue of 

being a taxpayer, can sue to contest governmental actions taken 

under Congress’ power to appropriate money, but that a taxpayer 

may not have standing to contest executive action just by virtue of 

being a taxpayer. 

Now, that doesn’t mean that some—that there may not be somebody who has standing to contest such action. I think what the 

court has suggested is just that the sort of normal injury that Article 3 requires has to be shown, the injury can’t come just by virtue 

of being a taxpayer but has to come from something else in addition. But there is, I think, a case on the docket. 

Senator FEINSTEIN. Such as the individual being actually affected. 

Ms. KAGAN. Yes. Exactly right. 

Senator FEINSTEIN. Thank you. You know, I think even the other 

side would have to admit that you have a wonderfully well-ordered 

mind, and I’ve watched you over these days. When I haven’t been 

right here and I’ve been able to look at television, I’ve watched you. 

I think your knowledge of the law and your ability to order your 

answers is really very impressive, and I just want you to know 

that. 

Now I want to say something. If you are confirmed, and I believe 

you’re going to be, you will be only the fourth female justice in history and the Supreme Court will have three women serving concurrently for the first time ever. As the first female dean of Harvard, 

the first woman to serve as Solicitor General, you’ve certainly broken several glass ceilings. 

However, the fact is, many institutions still do not reflect the diversity of our society and the Federal courts, I’m sorry to say, are 

one of them. As of last month, only 48 of the country’s 163 active 

Federal Appeals Court judges were women, and women comprised 

only 191 of 794 District Court judges. 

According to the American Community Survey, a college-educated woman makes approximately $20,000 less than her similarly 

educated male counterpart, and the average woman is paid only 77 

cents for every dollar a man makes. I remember when it was 56 

cents, so I know there’s been progress. And this is not to say that 

progress hasn’t been made. Women today make up nearly half of 

all law students, 30 percent of all lawyers, and when I first joined 

the Senate there were only two women serving in this institution, 

and today there are 17 of us. So we’re making progress, but every 

advance, it seems to me, has really been hard-fought. 

And I want to say one thing about the Ledbetter case now that 

it’s history. I found it just shocking that the court would hold to 

a technicality when a woman couldn’t possibly have known during 

the time that the tolling was taking place that she was disadvanVerDate Nov 24 2008 12:24 Aug 23, 2011 Jkt 067622 PO 00000 Frm 00252 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\67622.TXT SJUD1 PsN: CMORC
243 

taged, and when she learned she was disadvantaged it was too 

late. 

For such a substantial time, she had been doing the same work 

as a man and not being paid for it. So I think, as more women are 

on the highest court, I really believe that once you cross that 

threshold and the doors open, it remains open for all time and others will follow. 

I said this to Justice Sotomayor as well. You’re a wonderful role 

model for women. And we’ll forget whether you’re a Democrat or 

a Republican, you know, you’re reasoned, you have a commitment, 

you have a dedication and a staying power. You do us all well, and 

that’s what I wanted to say. So, thank you very much. 

Now I’ll recognize Senator Grassley. 

Senator GRASSLEY. Do I get to use your unused 6 minutes? 

Senator FEINSTEIN. You want to use my 6 minutes? You can. 

Senator GRASSLEY. I’m joking. Thank you very much. 

I want to start with private property. The Takings Clause of the 

Fifth Amendment states, ‘‘ . . . nor shall private property be taken 

for public use, without just compensation.’’ 

The plain language of the Constitution says an individual’s property shall not be taken for ‘‘public use,’’ yet the majority of the Supreme Court in Kelo wrote that the government could take a person’s private property for a ‘‘public purpose,’’ not using the word 

‘‘use,’’ which they determined included private redevelopment of 

land. 

Do you believe that the Supreme Court correctly decided the Kelo 

case or do you believe that the Supreme Court improperly undermined constitutionally protected private property rights? 

Ms. KAGAN. Senator Grassley, it was obviously a very controversial decision that has inspired a great deal of—of action in the 

State legislatures. I’ve not commented on particular cases. I’ve not 

graded cases. But a few thoughts about Kelo. Of course, what— 

what the—what the court in Kelo did was to say that the question 

of public use was not necessarily use by the public, but instead was 

use for a public purpose. 

The court said that in the context of a taking of property that 

was done pursuant to a broad-scale urban development plan, so I 

think it—it remains an open question whether that public purpose 

test would apply in any other context without such a broad-scale 

urban development plan. 

You know, one of the things that you learn in your first year of 

law school in your property class is Cutler v. Bull. The principle of 

Cutler v. Bull is that the government can’t take the property of A 

just to give it to B. Here, what the—what the court said was that 

that principle did not apply, but it was very much dependent on 

this overall urban redevelopment plan. The question of—of—of 

whether the public purpose doctrine would apply outside of that 

context is, I think, an open question. 

It’s also true—it’s also true that in some sense what the—what 

the—what the court did in this area when it said this was to kick 

the question back into the political process. In other words, the 

court didn’t say, of course, that the government had to make—to 

do such takings. What the government said was that a State was 

permitted to do so. 

244 

And what States have done in the wake of that decision, in a— 

in a very striking manner, I think, is to say thanks, but no thanks, 

you know. We don’t want that power, we don’t want to be—we 

don’t want to do this. We think doing this, taking property from 

one person to give it to another person, even in the context of a 

broad redevelopment plan, is not appropriate public policy. 

So a number of States, I know—I don’t know the exact number, 

but quite a number—have passed these kinds of anti-Kelo legislation, which makes sure that the—that the question never arises because the State government doesn’t try to effect such a taking in 

the first instance. 

Senator GRASSLEY. Are there any limits on the ‘‘public benefits’’ 

doctrine in Kelo? 

Ms. KAGAN. Well, I—I—I do think that that Kelo only talked 

about that doctrine in the context of this urban development plan, 

so I think that the limits are the limits suggested by the Kelo facts 

themselves. I don’t think that the court went beyond those facts in 

its decision. 

Senator GRASSLEY. Under Kelo, the Court said that ‘‘pretextual’’ 

takings are still unconstitutional and a violation of the ‘‘public use’’ 

doctrine. Could you give me an example of a condemnation that is 

an unconstitutional pretextual taking? 

Ms. KAGAN. Gosh, you know, I don’t remember that exact line 

from Kelo, so I’m a little bit guessing as to the context. But I—I 

think probably what the court meant was a taking that the government does not truly to serve a public purpose, but instead more to 

give the property to another individual person, the kind of Cutler 

v. Bull scenario, take property from A, give it to B under the guise 

of a public purpose. So I would think that that’s what the court 

meant, although I don’t recall that exact statement. And I think 

that that also would provide a limit of—of the kind you’re speaking 

about on—on the doctrine. 

Senator GRASSLEY. Can you think of any areas where, in your 

opinion, the Supreme Court has failed to provide adequate protection of constitutional property rights? And if you can think of any, 

then I’d like to know examples, or an example. 

Ms. KAGAN. Well, you know, I’ve—I’ve—I’ve tried very hard, Senator Grassley, not to suggest where I see deficiencies in—in the 

court’s handling of cases, so I think I won’t answer that question 

with that degree of specificity. I mean, it is quite clear that the 

Constitution does in various ways, and most notably by the 

Takings Clause, protect property rights and that the job of the 

courts, with respect to those rights as any other, is to ensure that 

government does not overstep its proper bounds. 

Senator GRASSLEY. The President who appointed you, in The Audacity of Hope, his book, said, ‘‘Our Constitution places the ownership of private property at the very heart of our system of liberty.’’ 

Do you agree with that statement? 

Ms. KAGAN. Well, I—I do think that property rights are a foundation stone of liberty, that the two are intimately connected to 

each other in our society and in our history. 

Senator GRASSLEY. I want to bring up the Second Amendment 

again. In Prince v. U.S., the Supreme Court held that Congress 

245 

could not order State and local chief law enforcement officers to 

conduct Federal background checks on handgun purchasers. 

In a March 1997 memo, Dennis Burke wrote that, based upon a 

suggestion from you, he asked the Departments of Treasury and 

Justice to provide options on what the President could do in this 

area by executive action. As an example, he cites your suggestion 

that the President, by Executive Order, might—might—be able to 

prohibit a federal firearms dealer from selling a handgun without 

local law enforcement certification. In other words, the President 

could prohibit handgun sales by licensed dealers, even if the Congress could not force the States to do so. 

So this raises a fundamental issue not only in terms of the Second Amendment and the Tenth Amendment, but suggests that the 

President has the power to make law on his own. Was it your position that the President has the authority, by Executive Order, to 

prohibit federal firearms dealers from selling handguns without 

local law enforcement certification? 

Ms. KAGAN. That was not my position, Senator Grassley. And if 

we could just step back a moment. 

Senator GRASSLEY. I have a memo down that I want to bring to 

your attention, although I accept what you say. But the final paragraph of a memo to Michelle Crisci says, ‘‘Based on Elena’s suggestion, I have also asked both Treasury and Justice to give us options 

on what POTUS could do by executive action—for example, could 

he, by executive order, prohibit a FFL from selling a handgun without a CLEO certification? We will continue to pursue.’’ 

Ms. KAGAN. Right. So let me just step back for a moment. This 

was, of course—President Clinton was very committed to the Brady 

law, which was a way of ensuring that guns were kept out of the 

hands of criminals, were kept out of the hands of insane people, by 

doing background checks on people before they could receive access 

to guns. It was a law, of course, with very wide support in Congress and across the country. It remains in effect today. 

The court, in Prince—there was a system, a Federal system that 

enabled gun dealers to do those background checks, but it had not 

yet come into effect. I think it came into effect in 1998, and there 

we were in 1994 or 1995 or 1996, or something like that. And in 

the interim, before the Federal system was ready to operate in 

order to implement the Brady law, what had—what had happened 

was that the Brady law had required States to themselves do the 

background checks. 

The CLEOs, the Chief Law Enforcement Officers of each jurisdiction, were required to do the background checks. And the court, in 

Prince, held that system unconstitutional, said that that was a violation of the Tenth Amendment because it inappropriately commandeered State officials for Federal purposes. And what that 

meant was that there was a kind of gap. The Congress could not 

require the State officials to do the background checks, but the 

Federal system—it’s called the—I think it’s the Insta-Check System, or something like that. The Federal system had not come into 

effect. 

So the question was what to do in that period of, I don’t know, 

it was like 18 months or 2 years to ensure that background checks 

could be done consistent with the Brady law. What I suggested to 

246 

Mr. Burke in that memo was to say, let’s see if there are any ways 

in which the President can take executive action to put in place 

some kind of interim system. That executive—to do background 

checks. Again, that executive action, of course, had to be consistent 

with the law, of course had to be consistent with any statutes that 

Congress had passed, Brady or anything else, and had to be consistent with the Constitution as well. 

As I recall, and it’s many moons ago, obviously, we didn’t find 

any way to do that. I’m trying to think of exactly what did happen 

in that interim period. I think for the most part, States voluntarily 

did what they had been doing until the Federal system came into 

play and sort of mooted out the whole inquiry. 

Senator GRASSLEY. You didn’t have any predilections that the 

President could do that, that only Congress can do that? I think 

that’s what you just told me. 

Ms. KAGAN. Yes. The President could only do it if Congress—if 

legislation authorized him to do it. If legislation did, you know, 

that’s fine. If there was no legislative authorization, then he 

couldn’t do it. 

Senator GRASSLEY. I think my last question in this area is obvious, but let me ask it anyway. In light of both Heller and McDonald, do you still believe that the Executive Branch has the power 

to—well, I shouldn’t use the word still because I think you’ve 

cleared that up for us, but do you believe that the Executive 

Branch has the power to prohibit the sale of firearms without legislative authorization? 

Ms. KAGAN. As I said, I never believed that the President had 

the power to prohibit that without legislative authorization, so in 

fact that’s one that Heller and McDonald don’t affect, that the 

President didn’t have that power before and doesn’t have that 

power after. 

Senator GRASSLEY. OK. On the Second Amendment, dealing with 

self-defense, the historical background surrounding the Second 

Amendment strongly supports the concept that self-defense is a 

preexisting, fundamental right. William Blackstone, who the Supreme Court has called ‘‘the preeminent authority on English law 

for the founding generation’’, cited the arms provision as ‘‘one of 

the fundamental rights of Englishmen’’, calling it ‘‘the natural right 

of resistance and self-preservation—the right of having and using 

arms for self-preservation and defense.’’ 

During her confirmation hearings, Justice Sotomayor testified 

that she couldn’t think of a constitutional right to self-defense; 

rather, it is defined in criminal statutes by State laws. So, question: is self-defense a preexisting fundamental right? Or is it a notion created in the law as an affirmative defense in criminal statutes? 

Ms. KAGAN. Senator Grassley, I’ve never had occasion to look 

into the history of this matter. What I do know is that Heller has 

stated very specifically that self-defense is the core of the Second 

Amendment right, which Heller has held confers an individual 

right to bear arms. The majority opinion in Heller really does speak 

of self-defense as the central element of that right. 

247 

Senator GRASSLEY. Yes. And let me introduce here the quote specifically: ‘‘deeply rooted in this Nation’s history and traditions’’, 

from Heller. Ms. KAGAN. Right. And that is, you know, a central part of the 

rationale of Heller and is settled law in the ways that I’ve expressed going forward. 

Senator GRASSLEY. Okay. I’ll move on. Marriage is a State issue. 

Do you believe that marriage is a question reserved for the States 

to decide? And I’m only seeking your opinion because I know there 

might be cases coming down the road. Do you believe that marriage 

is a question reserved for States to decide? 

Ms. KAGAN. Senator Grassley, there is, of course, a case coming 

down the road and I want to be extremely careful about this question and not to in any way prejudge any case that might come before me. 

Senator GRASSLEY. That’s your right. So you don’t want to say 

any more, is that what you’re saying? 

Ms. KAGAN. I think I’ll leave it there, given the—— 

Senator GRASSLEY. OK. Well, then let me follow up. Do you agree 

that the Supreme Court’s decision in Baker v. Nelson in 1972, holding that the Federal courts lacked jurisdiction to hear challenges 

to State marriage laws ‘‘for want of a substantial Federal question’’ ? Do you agree with that decision? Why or why not? Is it settled law, in other words? 

Ms. KAGAN. So I think that that—my best understanding is that 

that decision has some precedential weight, but not the weight of 

a ‘‘normal’’ decision. What that decision was, it was done under the 

court’s then-mandatory appellate jurisdiction and it dismissed the 

case, for want of a substantial Federal question. It dismissed it 

summarily without hearing arguments or reading briefs or whatever, just saying it was not going to accept the case under its thenjurisdictional powers. 

My understanding is that there’s actually a question about what 

kind of precedential weight such a decision is entitled to, and arguments on both sides of that. I think, you know, probably the better 

view or the view that most people hold, I think, is that it’s entitled 

to some precedential weight but not the weight that would be given 

to a fully argued, fully briefed decision. 

Senator GRASSLEY. So based on Baker v. Nelson, using your 

words, it’s not really settled law, even though a one-sentence statement as precedent, it says ‘‘the appeal is dismissed for want of a 

substantial Federal question.’’ That’s a pretty simple decision to be 

based on the Supreme Court. But you’re saying that this may not 

be settled law? 

Ms. KAGAN. My understanding is that there is sort of a question 

about the precedential effect of those kinds of summary dispositions. My—what I—what I think is true, is that most people think 

that those kinds of summary dispositions have some precedential 

weight, but not the precedential weight that’s given to a fully argued and fully briefed decision. 

Senator GRASSLEY. Well, the decision involved the Fourteenth 

Amendment that was ratified, as you know, back in 1868, and the 

case was decided in 1972. What has changed in the Fourteenth 

Amendment since then to warrant a new review under the FourVerDate Nov 24 2008 12:24 Aug 23, 2011 Jkt 067622 PO 00000 Frm 00257 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\67622.TXT SJUD1 PsN: CMORC
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teenth Amendment that this might not be a Federal question or 

that this is not a Federal question? 

Ms. KAGAN. Senator Grassley, I think that the—that the task for 

a court is—is, you know, to decide a case that comes before it. A 

case might come before it or might not come before it. If it does 

come before it, the question will be to—you know, to consider the 

facts, to consider the arguments that are made, to hear the—to 

read the briefs. 

Senator GRASSLEY. In regard to that and stare decisis, what 

weight would you give to Baker v. Nelson? 

Ms. KAGAN. Well, as I suggested, Senator Grassley, first, I think 

that there was a question about the precedential weight to be given 

to summary dispositions, and I would very much want to hear argument and hear briefing about that question and talk to my colleagues about that question. My—my best understanding is that 

what most people think is that these summary dispositions get 

some precedential weight, but they—and—but they don’t get the 

full weight that a fully briefed, fully argued decision gets. 

There is—you can see why people might think that, because part 

of the reason that a decision counts as precedent is because it really has been fully considered, that the briefs have been read, that 

the arguments have been heard, that the judges have had a chance 

to talk with each other, and the question is whether a summary 

disposition, because it’s done kind of, you know, without all that 

process, gets the full precedential weight. 

As I’ve said, this is—this is—this is not a question on which I’ve 

thought deeply. I’m sort of expressing to you my best understanding of what I take to be kind of the consensus position on 

this, but it’s—obviously the question on the precedential weight of 

that summary disposition is itself a question for the court to consider and—and I would do so in the usual way. 

Senator GRASSLEY. I would only say that I’m disappointed that 

you didn’t use the word ‘‘settled law’’ in the same definitive manner 

in regard to Baker v. Nelson as you have so many other times in 

the last 2 days. And—well, that’s it. 

Chairman LEAHY. Well, actually, the answer she gave was basic 

Hornbook law, that generally accepted—totally accepted Hornbook 

law. 

But did you have another question you wanted to ask? 

Senator GRASSLEY. No. 

Chairman LEAHY. Because—then Senator Specter. And then 

after Senator Specter finishes—and again, I’d urge Senators, if you 

don’t feel you need the whole 20 minutes—I’ve allowed some Republican Senators to go over the 20 minutes because—so they could 

finish up their questions, but if you don’t need the whole 20 minutes, it will not hurt my feelings or the nominee’s feelings if you 

don’t use it. But we will then break for lunch immediately when 

Senator Specter finishes. 

Senator SPECTER. Thank you, Mr. Chairman. I believe that I can 

finish in less than the 20 minutes and yield back some time. When 

I finished my first round, Solicitor General Kagan, I was asking 

you about what cases the court would take, what you would do to 

grant certiorari. 

249 

I went through a number of matters where the power of Congress had been curtailed when the court took over the fact-finding 

position, but a great deal of what the court decides is on the cases 

they decline to take up. I want to talk to you initially about two 

cases, the Holocaust survivors and the survivors or victims of 9/11, 

two cases that you are intimately familiar with because you worked 

upon them as Solicitor General, and I raised these with you in our 

informal meeting, and again by letters which I sent you. 

And here I am not asking how you would decide a case, but only 

whether you would vote to take the case up for decision by the 

court. The Congress, as I’ve mentioned briefly earlier, has the 

power to direct the court to take certain cases, as the Congress did 

with McKay and Feingold, the flag burning case, the Fair Labor 

Standards Act. 

The Holocaust issue was one where Holocaust victims who suffered terribly brought lawsuits against an Italian insurance company, and the administration took the position that the Supreme 

Court should not hear the decision by the Court of Appeals for the 

Second Circuit, which decided that the claims were preempted by 

an executive branch foreign policy favoring the resolution of such 

claims through an international commission. 

Well, that seems like a wrong decision to make. You have an insurance policy. If an insurance company won’t pay on the claim, 

you ought to be able to go to court and sue them and not to have 

the governments of the two countries decide what you can sue. 

But in any event, it is a different issue as to taking the case. 

Without asking you how you would decide it, would you vote to 

have the Supreme Court consider that case 

Ms. KAGAN. Senator Specter, this is difficult for me because, as 

I understand this, this is a live case and I continue to represent 

one of the parties in this case. In other words, there may very well 

be a petition for certiorari in this case, but I continue to be Solicitor General and—and would head the office that would have to respond to that petition. And I think that—— 

Senator SPECTER. If you were on the court you would recuse 

yourself. This would be one of those cases, wouldn’t it? 

Ms. KAGAN. That is—that is true, Senator Specter. But—but I 

don’t want to count my chickens before I am confirmed. I still am 

Solicitor General and I’m the counsel of—— 

Senator SPECTER. Ms. Kagan, you’re counting your chickens right 

now. I’m one of your chickens, potentially. 

[Laughter.] 

Chairman LEAHY. It reminds me of the Churchill speech to Canada, ‘‘Some neck, some chicken.’’ 

Ms. KAGAN. I think I remain Solicitor General unless and until 

this body confirms me, and that means I remain a party in this 

very case that you’re—that you’re asking me about. 

Senator SPECTER. Ms. Kagan, I’m asking you how you would decide a case, how you—what you would decide on taking a case. 

Would you hear this case or not? 

Ms. KAGAN. I—I think I’m going to be responsible for responding 

to the petition for certiorari in this case as Solicitor General, unless 

I’m confirmed to the court, and while I’m Solicitor General I don’t 

250 

think that I can say how I would vote on a—on a cert response that 

the Solicitor General will be filing. 

Senator SPECTER. Well, Ms. Kagan, I don’t see why not, but the 

clock is running and I’m going to move on. 

The next identical question involves the lawsuit brought by the 

survivors or the victims of 9/11, and there the Court of Appeals for 

the Second Circuit said that the foreign immunity statute, which 

excluded tortious conduct, like flying a plane into a building, did 

not apply. Congress had spoken that a country like Saudi Arabia 

should be liable for this kind of tortious conduct. 

And the Second Circuit said no because the Kingdom of Saudi 

Arabia had not been placed on the terrorist list. Well, it had nothing to do with the statute. Then as Solicitor General, you said that 

the Second Circuit was wrong, but the Supreme Court ought not 

to hear the case because the conduct by the Saudis was outside the 

country, but the impact was inside the country. The question is, 

would you think that case ought to have been heard by the Supreme Court? As a justice, would you vote to take that kind of a 

case? 

Ms. KAGAN. Senator Specter, the government did argue, based on 

very extensive consultations, that the Supreme Court ought not to 

take that case, and that continues to be the government’s position. 

You know, I don’t think it would be right for me to undermine the 

position that we took in that way by suggesting that it was wrong. 

It was, in fact, a position of the U.S. Government, in line with 

the interests of the U.S. Government, that I authorized and that 

I thought was appropriate for a number of reasons, which—which 

I’m happy to talk about with you. But—but I—I can’t say—I mean, 

I’ve not said with respect to any of—I think that the decisions that 

I made as Solicitor General on behalf of the U.S. Government as 

my client are ones that I can’t undermine in this—in this hearing 

room. 

Senator SPECTER. Ms. Kagan, candidly, I don’t think that is any 

reason not to respond to my question, but I’m going to move on. 

We didn’t quite finish my question to you of the same nature 

about whether, if confirmed, you would vote to take the case involving the Detroit Federal court decision on the Terrorist Surveillance 

Program, which the Sixth Circuit ducked on standing grounds with 

a powerful dissent. The Supreme Court denied cert. Would you 

have voted to take that case? You gave me three categories of 

cases. But I understand your three categories of cases, but again, 

that doesn’t answer the question: would you vote to take that kind 

of a case? 

Ms. KAGAN. Well, Senator Specter, I do think that this is a case 

that, as I understand it, generally falls within the third category 

of case, a case which presents an extremely important Federal 

issue as to whether the executive has overstepped its appropriate 

authority and has essentially flouted legislation in the area. The 

sort of curlicue on this case does have to do with the standing question, with the question whether the court has jurisdiction and could 

reach the merits question, which is of such importance. Now—— 

Senator SPECTER. You said all of that yesterday. Would you take 

the case? 

251 

Ms. KAGAN. Senator Specter, I’ve—I’ve not read the petitions, 

I’ve not read the briefs in the way that I would as a judge. I do 

think that the standing issue itself is of some real importance, and 

it’s of some real importance because it goes to the question, who 

does have standing to—to challenge surveillance policies when the 

very notion of those surveillance policies—when—when those surveillance policies are confidential and you don’t know whether 

you’re being surveilled. 

And if nobody does have the ability to come in and say, look, I 

have reasonable grounds to believe that I’m being surveilled, if instead one has to show that one absolutely has been surveilled, that 

really does—you know, that very much detracts from the ability to 

ever reach the merits question of whether the surveillance is appropriate. So I think for that reason, you know, the standing issue 

is of significant importance as well. 

Senator SPECTER. May I move along? You’ve had a lot of time to 

take a look at that. We met weeks ago. I sent you a letter. But apparently I’m not going to get an answer there either. 

Let me come back to a question which ought to fall squarely 

within the Kagan doctrine of answering the substantive question. 

None of these other reasons would apply. We have the rational 

basis test for deciding whether a record is adequate, Maryland v. 

Wirtz, which I talked to you about—Justice Harlan. You have a 

congruence in proportionality standard. Those don’t involve specific 

cases as to what you would decide, they involve standards. And certainly that comes within your ambit of answering a substantive 

question: which would you apply, if confirmed? 

Ms. KAGAN. Senator Specter, as I understand it, the congruence 

and proportionality test is currently the law of the court, and not 

withstanding that it’s been subjected to significant criticism and 

not withstanding that it’s produced some extremely erratic results. 

And I can’t, you know, sit at this table without briefing, without 

argument, without discussion with my colleagues and say, well, I 

just don’t approve of that test, I would reverse it. 

What I can say is that I understand the criticisms that have 

been leveled against that test. There seems to me real force in the 

notion that a test in this area dealing with Congress’ Section 5 

powers really needs to provide clear guideposts to Congress so that 

Congress knows what it can do and knows what it can’t do, and 

so the goalposts don’t keep changing and so Congress can do 

what—can pass legislation, confident in the knowledge that that 

legislation will be valid. And I think that that those concerns are 

a very significant weight, and—and the question for the future on 

the court will be whether those concerns can be met under the test 

that’s now in existence. 

Senator SPECTER. Ms. Kagan, if you have to discuss with your 

colleagues the kinds of questions that we’re raising, that I have 

just raised, you wouldn’t answer anything, and perhaps you 

haven’t answered anything. 

Ms. KAGAN. Well, Senator Specter, I certainly do have to rebrief 

and—— 

Senator SPECTER. Perhaps you haven’t answered much of anything. 

252 

Ms. KAGAN. Senator Specter, I—I do have to read briefs and listen to arguments and discuss—— 

Senator SPECTER. Why do you have to read briefs on a standard? 

This is not a specific case, this is—— 

Ms. KAGAN. This is—— 

Senator SPECTER. This is a standard as to whether the rational 

basis is sufficient or whether you’re going to have congruence and 

proportionality. 

Ms. KAGAN. Senator Specter, the congruence and proportionality 

test has been a standard that’s been adopted by the court that is 

precedent going forward, and you shouldn’t want a judge who will 

sit at this table and who will tell you that she will reverse a decision without listening to arguments and without reading briefs and 

without talking to colleagues, notwithstanding that that person 

knows that that test has been subject to serious criticism. 

Senator SPECTER. Well, Solicitor General Kagan, I think the commentaries in the media are accurate. We started off with the standards that you articulated at the University of Chicago Law School 

about substantive discussions, and they say we haven’t had them 

here and I’m inclined to agree with them. The question is where 

we go from here. You have followed the pattern which has been invoked since Burke, and you quoted me in your Law Review article, 

that ‘‘some day the Senate would stand up on its hind legs.’’ 

It would be my hope that we could find some place between voting no and having some sort of substantive answers. But I don’t 

know that it would be useful to pursue these questions any further. 

But I think we are searching for a way how Senators can succeed 

in getting substantive answers, as you advocated in the Chicago 

Law Review, short of voting no. 

The other issue which I discussed with you at some length—and 

I’m going to wrap up and yield back some time here in a minute 

or so—and that is what, if anything, can be done about nominees 

who drastically abandon positions taken at the confirmation hearings. There, I’m pleased with your response on television. Brandeis 

and the famous article he wrote in 1913 talks about publicity and 

that is why I think television would be so good to tell the public 

what is going on. 

I would like to put into the record the questioning that I made 

of Chief Justice Roberts, which took 28 of my 30 minutes, and his 

concurring opinion in Citizens United, which is an apology, a, really, repudiation of everything he testified to, just diametrically opposed. That concurring opinion goes into great detail as to why 

stare decisis ought not to be followed. I’d like to have that in the 

record, Mr. Chairman. 

Chairman LEAHY. Without objection, it’s part of the record. 

[The information appears as a submission for the record.] 

Senator SPECTER. I again acknowledge, it’s a big difference between appearing here at a nomination proceeding as opposed to deciding a case in controversy. And I don’t challenge Chief Justice 

Roberts’ good faith, but it does leave us perplexed as to—as to 

where we head. 

Mr. Chairman, I—thank you Solicitor General Kagan. Thank 

you, Mr. Chairman. I yield back the balance of my time. 

Chairman LEAHY. I thank you. 

253 

We will—we will recess. It’s now 1:10. Let’s be back here about 

2:10. Thank you. We stand in recess. 

[Recess 1:10 p.m. to 2:09 p.m.] 

Chairman LEAHY. I welcome everyone back. I couldn’t help but 

notice that General Pontier Kennedy is in the second row, the first 

woman to achieve the rank of three star general in the United 

States Army. And the whole thing will be put in the record. But 

I appreciate very much, General, what you wrote. And I’ll just read 

one paragraph of it. 

General Kennedy said, ‘‘I commanded both intelligence and recruiting units in my career in the military. Based on my experience 

in military recruiting, I am completely confident that Elena Kagan 

is a strong supporter of our men and women in uniform and appropriately handled military recruiting policies at Harvard Law School 

by ensuring they had full access to the student body during her 

tenure. I am pleased to be here today to lend my support to her 

confirmation.’’ We will hear more later, but that will be part of the 

record. 

I believe, Senator Kyl, you’re—— 

Senator KYL. Once again we play to a packed crowd here. 

Senator LEAHY. Well, that’s because I think everybody has asked 

most of the questions. But somebody has a ‘‘few’’ more. 

Senator KYL. Well, Mr. Chairman—— 

Senator LEAHY. Notice the emphasis on ‘‘a few’’—— 

Senator KYL. I’ve actually got some different questions and because of the limited time, I will ask you, please be as succinct as 

you can and I may interrupt you if I feel we have to move on. 

Let me first of all ask you about a letter that Senator Graham 

raised with you but did not ask the two questions I have. 

November 14th, 2005, this related to an amendment that he and 

I and Senator Cornyn had filed to limit the jurisdiction of the 

courts on habeas petitions by aliens held Guantanamo. 

Now, first I have to tell you, I considered your language injudicious when you compared our actions to, and I’m quoting now, ‘‘the 

fundamentally lawless actions of dictatorships’’ and I wonder why 

you felt—obviously you felt strongly about this, or you wouldn’t 

have used those words, but why did you feel it necessary to describe what we were proposing in those terms? 

Ms. KAGAN. Senator Kyl, I don’t think we did, or at the very 

least we did not mean to compare you to dictators. The only thing 

that the letter was meant to say was that we should hold ourselves 

to very high standards, at least as high, or higher, than the standards that we would apply to dictatorships. And those were the 

standards that we were urging Congress to hold itself to in considering this legislation. And Congress in fact did. I mean, within a 

matter of day Congress came together, 84 to 15, a remarkable act 

of bipartisanship and passed a very good piece of legislation which 

did provide our Article 3 review of—— 

Senator KYL. Excuse me. 

Ms. KAGAN—[continuing]. Determinations. 

Senator KYL. There was more to it than that though. You suggested in the letter that the habeas rights of which you were 

speaking should apply beyond Guantanamo to foreign theaters of 

war. You wrote it, I’m quoting now, ‘‘We cannot imagine a more inVerDate Nov 24 2008 12:24 Aug 23, 2011 Jkt 067622 PO 00000 Frm 00263 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\67622.TXT SJUD1 PsN: CMORC
254 

appropriate moment to remove scrutiny’’ and the scrutiny means is 

equivalent here to habeas jurisdiction ‘‘of executive branch treatment of non-citizen detainees. We are all aware of serious and disturbing reports of secret overseas prisons, extraordinary renditions, 

and the abuse of prisoners in Guantanamo, Iraq, and Afghanistan.’’ 

Now, abuses existed in all three places. The obvious import of 

the argument was that the reach of habeas should extent to Guantanamo, Iraq, and Afghanistan.’’ 

Ms. KAGAN. Senator, I think that the focus of the letter as the 

focus of everybody’s attention at that time was on the Guantanamo 

detainees. And as you know I, as Solicitor General, I’ve advocated 

strongly and I’ve made sure that my name appeared as counsel of 

record on the U.S. Government’s Bagram brief because I believed 

that the United States has very strong interests in this in the—— 

Senator KYL. Here’s my question. That is the position you took 

as Solicitor General dealing with the rights of habeas Bagram. You 

expressed a personal opinion before that. This issue could well be 

presented to the Court and what I want to know is whether or not 

it will be the position you argued on behalf of a client, the United 

States, where what was personally in your heart and caused you 

to write with such passion to members of the Senate here? 

Ms. KAGAN. Well, the letter, I do think, was focusing on Guantanamo detainees and was focusing on two questions—— 

Senator KYL. But it wasn’t limited and you specifically went out 

of your way to include also Iraq and Afghanistan in the same 

clause. 

Ms. KAGAN. I think we can argue about the letter, the legislation 

and what every—— 

Senator KYL. What is your personal view then, that it would not 

apply to Bagram just to use a very specific example? 

Ms. KAGAN. The—— 

Senator KYL. As you argued in the McCala case? 

Ms. KAGAN. Senator Kyl, I’m Solicitor General. The view that I 

have advocated, and I have advocated it strongly, including by 

signing my name on a Court of Appeals brief, which the Solicitor 

General almost never does, is that habeas should not extend to 

Bagram. 

Now, I couldn’t comment, I would be recused from that case that 

I signed my name on. This decision might come to the Court—excuse me, this question—— 

Senator KYL. If I could just interrupt. You understand what I’m 

asking you. If a case similar to that came to the Court and you 

didn’t recuse yourself, I don’t know whether you take the position 

that you argued on behalf of a client or you take the position that 

was apparently on your heart when you wrote this letter to us. 

Ms. KAGAN. Well, Senator Kyl, I don’t think that that letter expresses view on the question of habeas rights at Bagram. I think 

that that letter was focused on the Guantanamo issue. 

Senator KYL. Well, then it was gratuitous that you included the 

phrase, ‘‘we are all aware of serious and disturbing reports of secret overseas prisons, extraordinary renditions, and the abuse of 

prisoners in Guantanamo, Iraq and Afghanistan.’’ 

Ms. KAGAN. I think that that’s just a description of what we were 

aware of. But the focus of the letter—— 

255 

Senator KYL. You also said in the letter, and I’m quoting now, 

‘‘unfortunately the Graham Amendment would prohibit’’ 

Senator LEAHY. You’ll have extra time if need be, but let her answer the question. 

Senator KYL. I’m happy to do that, but we don’t have a lot of 

time and I’m going to pretend like I’m a Supreme Court Justice for 

14 minutes and you’re still the Solicitor General and I will interrupt you if I think we need to move on. 

In the letter you said, ‘‘unfortunately the Graham Amendment 

would prohibit challenges to detention practices, treatment of prisoners, adjudications of their guilt and their punishment.’’ 

It’s pretty clear you were saying that habeas should be available 

to challenge all aspects relating to detainees including their treatment or conditions of confinement. Neither the Bagram case nor 

the MC authorized habeas claims to challenge conditions of confinement or treatment. Do you believe that the treatment of prisoners should be a subject of habeas in these cases? 

Ms. KAGAN. Senator Kyl, I don’t believe that that is a question 

that has come before the Courts. And given that—— 

Senator KYL. It has not, you’re right. 

Ms. KAGAN.—I would not want to suggest how I would decide 

that question ? 

Senator KYL. But you have suggested how you would decide it by 

saying, ‘‘unfortunately the Graham Amendment would prohibit 

challenges to detention practices, treatment of prisoners’’ and so 

on. So you’ve expressed a personal opinion about that. And why 

shouldn’t I assume that you would bring that personal opinion to 

the bench? 

Ms. KAGAN. Senator Kyl, what we expressed in that letter was 

opposition to the totality of the initial Graham Amendment, not the 

Graham/Kyl/Levin Amendment that eventually passed. There were 

a number of things about that amendment that we thought went 

too far. I think we were stating the full extent of the amendment’s 

effect. But I don’t think that that letter can fairly be read to express a legal view as to each of the particular—— 

Senator KYL. I absolutely disagree with you about that. I dealt 

with habeas to challenge the detention practices, treatment of prisoner, adjudications of their guilt, and their punishment. That’s 

what the letter specifically said. I quoted it accurately here. 

Ms. KAGAN. Senator Kyl—— 

Senator KYL. Now we later changed the amendment to only relate to the determination of guilt and punishment. We left out the 

treatment of prisoner aspects of it because as you know that brings 

in a whole host of huge problems for the Courts. And if we were 

to bring that in to our military justice system it could grind it to 

a halt. Go ahead. 

Ms. KAGAN. Senator Kyl, my view of that letter or my view of 

just my current state of mind is that I have no preexisting views 

on the way I would approach, as a judge, the sort of questions that 

you are asking me about. 

Now, you know, I am perfectly happy to go back to that letter 

and to try to parse it as carefully as you are parsing it, and to see 

whether it expressed a point of view—expressed a view as to a particular legal issue that might come before me. And if I think that 

256 

the letter does express a very particular point of view on a particular issue that might come before me, as in all such cases, I will 

certainly consider that fact, talk to my colleagues about that fact 

in determining whether recusal is appropriate. 

Senator KYL. I think that’s appropriate. And I may offer something else to you. And I invite you to do this. I’ll probably have a 

couple of questions for the record anyway. Take a look at the 

record, and if you want to expand in any way on what you’ve commented on here, or make any other point to that, please do that 

in writing and that way you’ll have the full time to think about it 

and comment on it in whatever way you would like to. 

Let me switch subjects here. During the Solicitor General hearing—the hearing for your nomination as SOMETHING, you said in 

response to question by Senator Cornyn, quote, ‘‘There is no Federal constitutional right to same-sex marriage.’’ Now, to me that 

means the Constitution cannot properly be read to include such a 

right. Is that what you meant to say? 

Ms. KAGAN. Senator Kyl, that question was asked me in my role 

as Solicitor General. The question came to me from Senator Cornyn 

because Senator Cornyn acknowledged and stated what is true 

which is that I had opposed and stated opposition to the ‘‘don’t ask, 

don’t tell’’ policy and Senator Cornyn asked me, given that stated 

opposition, could you perform the role of Solicitor General and particularly, I think, could you with appropriate vigor defend the constitutionality Doma? 

And my answer was meant to say, yes, I absolutely could defend 

vigorously the constitutionality of Doma, that I understood what 

the state of the law was and that I understood what my professional responsibilities were. And if that case had come to the Supreme Court this year, I certainly would have been at the podium—— 

Senator KYL. With all due respect, Doma’s constitutionality is a 

different question than your statement. And there were no qualifications on it, you said, ‘‘there is no Federal constitutional right to 

same-sex marriage’’ period. Now, are you qualifying that now? Are 

you saying that you meant something different by those clear 

words that you expressed to Senator Cornyn? And I didn’t take it 

out of context. 

Ms. KAGAN. I was absolutely saying that I understood the state 

of the law and that I accepted the state of the law—— 

Senator KYL. So you’re only saying then that as of right now the 

Court hasn’t declared there to be a Federal constitutional right; is 

that all you’re saying? 

Ms. KAGAN. I am saying that I very much understood, accepted 

the state of the law and that I was going to perform all my obligations as Solicitor General consistent with that understanding and 

consistent with that acceptance. 

Senator KYL. So you wouldn’t tell us today then whether you believe that the Constitution could be properly read to include such 

a right? 

Ms. KAGAN. I don’t think that that would be appropriate. As Senator Grassley and I talked about, there is a case that’s pending, the 

case may or some other case might come before the Court, and so 

I couldn’t go any further than that. 

257 

Senator KYL. So then when you said, ‘‘there is no Federal constitutional right to same-sex marriage’’ what you meant by that 

was the Court has not held that there is a Federal constitutional 

right to same-sex marriage? 

Ms. KAGAN. The question was, could I perform my responsibilities as Solicitor General? Did I understand the law, did I accept 

the state of the law? And the answer was yes as to both. 

Senator KYL. The two Arizona—or the Arizona case I was talking 

to you about before our last questioning concluded, the Chamber of 

Commerce v. Candaleria case, I wanted to ask some more questions. But let me just ask you one case—or one question about that 

case. And then also another case called Lopez Rodriguez v. Holder, you might remember this was a 9th Circuit case that applied the 

exclusionary rule to civil immigration proceedings. And you declined on behalf of the government to ask the Court to take that 

case. 

What I wondered is—and I found that rather remarkable since 

there was a split in the circuit. The Supreme Court had already 

spoken on it, there was a significant constitutional issue involved, 

obviously a question of significant political importance and yet you 

chose not to suggest that the Court should take that case, but rather to suggest the Court take the Arizona case which didn’t involve 

any of those considerations. 

Nonetheless, my question is this, were either of those cases that 

were your decision to take them influenced by any political considerations? And I say that broadly, meaning, for example, any contact from the White House or officials at the Executive Office of the 

President or contacts of that sort in either of those two cases? 

Ms. KAGAN. Senator Kyl, I’m persuaded that we made the correct 

decision on the law in both of those cases. I don’t think that I can 

talk about internal deliberations of the Solicitor General’s office 

whether with respect to the White House or otherwise. 

Senator KYL. So you cannot tell the Committee whether or not 

there was any contact irrespective of the content of the contact? 

Ms. KAGAN. Senator Kyl, I don’t think it would be right for me 

to talk about, you know, particular contacts and particular cases. 

That that counts as sort of internal deliberations. I do think that 

we made the right decision on the law for the United States’ interests in both of those cases. 

Senator KYL. I think that there wouldn’t be anything wrong with 

the Committee understanding whether or not your decision was 

based on considerations other than purely legal, especially if it 

came in the form of requests by the White House or people within 

the White House because of the rather political nature of these two 

cases. I mean, it wouldn’t be surprising, in a way, that there would 

be a lot of political interest in this. It would be surprising if the 

Solicitor General’s office became involved in cases or took positions 

in cases based upon the political advice or efforts. You don’t think 

that that wouldn’t be an appropriate inquiry for us? 

Ms. KAGAN. Senator Kyl, the Solicitor General’s office does, from 

time to time, and I think that this is true in every administration, 

have some communications with members of the White House with 

respect to particular cases. That is not a surprising thing and I 

think it’s true in every administration. But I don’t think it would 

258 

be right to talk about internal deliberations in any particular case 

and I do think that as to both of those cases that you mentioned 

the Solicitor General’s office made the correct decision on the law, 

on the legal principles that were involved for the United States as 

a client. 

Senator KYL. I’m sure you can defend your position. You do that 

admirably. But, it seems to me that simply noting whether or not 

there were such contacts would not be an inappropriate thing for 

you to provide to the Committee. 

Let me ask you one more time about foreign law because there 

have been several different iterations of this. Senator Grassley 

asked you and I have an exaction quotation of what you said in response to that, you said, ‘‘while you were in favor of good ideas 

coming from wherever you can get them, the judges shouldn’t be 

bound by foreign legal precedent.’’ Now, that’s a—and you closed by 

saying, ‘‘fundamentally we have an American Constitution and our 

Constitution is our own.’’ 

I’ve seen that formulation before and I’m troubled by it. Because 

it suggests that you could turn to foreign law to get good ideas, but 

that, of course, you wouldn’t be bound by foreign legal precedent. 

I doubt that anybody who uses foreign law would suggest that they 

are bound by foreign legal precedent, but it hasn’t stopped them 

from using foreign precedents legal and otherwise. 

And so I’m back to the question of whether you believe that decisions of foreign courts or laws enacted by foreign legislators—legislatures should have any bearing on U.S. court interpretation of the 

U.S. Constitution? 

Ms. KAGAN. Senator Kyl, I do believe that this is an American 

Constitution. That one interprets it by looking at the structure, our 

own history, and our own precedents. And that foreign law does not 

have precedential weight. 

Now, in the same way that a judge can read a Law Review article and say, well, that’s an interesting perspective or I learned 

something from it, I think that so too a judge may read a foreign 

judicial decision and say, well, that’s an interesting perspective, I 

learned something from it. Suppose, you know, we have a Fourth 

Amendment exclusionary rule—suppose that—— 

Senator KYL. Excuse me. Of what relevance is that to the U.S. 

Constitution? We have many things other countries don’t because 

we have a unique Constitution. 

Ms. KAGAN. I’m just trying to suggest that it’s of the same kind 

of relevance that it would be if you read a Law Review article 

about a similar subject. 

Senator KYL. OK. What you are telling me is then that you 

would look to foreign law, you might relate it to the issues in the 

case, would you cite it in an opinion as an interesting idea, not legally binding, of course, but supportive of your position? 

Ms. KAGAN. I said yesterday when I talked about the subject, I 

said that—I used as an example a brief that the Solicitor General’s 

office had filed on the Foreign Sovereign Immunities Act. When we 

filed that brief we talked about what some other countries had 

done on the Foreign Sovereign—— 

Senator KYL. Because you thought it might appeal to some of the 

members of the Court? 

259 

Ms. KAGAN. Because—— 

Senator KYL. Right or not? 

Ms. KAGAN.—the question of how one should look to the Foreign 

Sovereign Immunities Act and whether officials should be held liable is a question that a number of nations have tried to deal with. 

And in the same way that one might point to Law Review articles 

on the subject. I don’t think that foreign opinions should be out of 

bounds in that way. But I do think that they do not have any kind 

of precedential weight. That they are not any kind of ground—independent ground for making a decision—— 

Senator KYL. I just wondered why you take the space then to include them in an opinion. 

Let me ask you one final question. And, by the way, this is 

thanks—you might have caught George Will’s column June 28th in 

the Washington Post suggesting some questions for Elena Kagan. 

I don’t know if you saw that or not. This is one that I didn’t tell 

you that I would ask you and I apologize. But I’m just going to 

quote from one question. 

He said, ‘‘Some persons argue that our Nation has a living Constitution. The Court has spoken of the evolving standards of decency that mark the progress of a maturing society. But Justice 

Anton Scalia speaking against changeability and stressing that the 

whole anti-evolutionary purpose of the Constitution says its whole 

purpose is to prevent change to embed certain rights in such a 

manner that future generations cannot readily take them away. 

The society that adopts a bill of rights is skeptical that evolving 

standards of decency always mark progress and that societies always mature as opposed to rot.’’ Is he wrong; George Will and I 

ask? 

Ms. KAGAN. I think we have a Constitution and it’s the same 

Constitution that we’ve always had putting aside the Article 5 

Amendment process. And that it is meant to endure for the ages. 

The Constitution does not change, but it is—it is asked to apply 

and Courts must apply it to changing circumstances and to changing conditions. And in the course of that application there is development in constitutional law. The Constitution itself is fixed and 

the Constitution itself is binding. 

Senator KYL. Thank you. 

Mr. Chairman, since I think you’ve indicated that you would like 

to conclude the Solicitor General’s testimony at the end of this 

round, I’ll pose a couple of other questions including one relating 

to the reach of the commerce clause in questions for the record. 

Senator SESSIONS. Mr. Chairman, are you suggesting Senator 

Kyl that—I was a few moments late, was there an agreement 

that—— 

Senator KYL. No, no agreement. 

Senator SESSIONS.—not have a third round and just finish with 

this round? 

Senator LEAHY. How much longer would you need to ask your 

questions? 

Senator KYL. Well, I just really had the one other question, but 

I don’t want to take my colleague’s time. 

Senator SESSIONS. OK. I just didn’t know—— 

260 

Senator KYL. I’d be happy to take the time when they’re done, 

Mr. Chairman. 

Senator LEAHY. Well, if you want, rather than have to have you 

come back. I did mention earlier before you came in on a specific 

time, but because things have changed so much because of the situation with basically 3 days of funerals. So if you have a further 

question ask it. 

[Simultaneous conversation.] 

Senator KYL. Let me just throw it out—and I know that at least 

Senator Coburn and Senator Cornyn have had the same question. 

In response to some of the other questions it appears to me that 

what you were saying about the commerce clause is that essentially if there is sufficient commerce—effect on interstate commerce, that it’s not the Court’s job to look behind a Congressional 

act. That’s the test. If that test is satisfied and it’s a reliance on 

the commerce clause, then that’s it. 

And it seems to me that that’s overly broad because the whole 

point of the Court’s rule is to interpret what is permitted under the 

Constitution and that, of course, the Court could say precisely what 

I just articulated as the test. As long as you can show some degree 

of interstate commerce then you have a right to legislate in that 

area. 

My question is, though, whether that really would be an abdication by the Court of its responsibility to interpret that article of 

the—that part of the Constitution and whether you see any limit 

on the application of the interstate commerce clause other than a 

degree of sufficient commerce. 

Ms. KAGAN. Well, the Court has interpreted the commerce clause 

broadly, not in an unlimited way, but broadly. I agree with you, 

Senator Kyl, that the Court has an important role to play in this 

as in any area in order to ensure the government does not overstep 

its proper authority. 

We live in a government of limited and enumerated powers. The 

government cannot exercise authority beyond—excuse me, the Federal Government, Congress, cannot exercise its powers beyond the 

authority that the Constitution provides. The commerce clause has 

been understood to give Congress wide authority in this area. The 

general view has been that regulations affecting interstate commerce primarily are the prerogative of Congress and not of the 

Courts. The Courts ought to defer. 

Defer does not mean abdicate and there remains an important 

role to play. The limits that have been set and that exist currently 

are the limits that appear in the Morrison and the Lopez case 

which separates out non-economic activity from economic activity 

and talks as well about areas which are traditionally the prerogative of the states. Those are the limitations that the Court’s current 

doctrine imposes. I treat those limits as precedent going forward 

and for sure would not think that it’s appropriate to abdicate in 

this are but do think that deference is generally correct with respect to economic legislation. 

Senator KYL. I appreciate your answer. Thank you. 

Senator LEAHY. Incidentally, I have a quote here, there are other 

legal issues that come up in which I think it’s legitimate to look 

to foreign law. For example, if a question comes up concerning the 

261 

interpretation of a treaty that has been entered into by many countries, I don’t see anything wrong with seeing the way the treaty 

has been interpreted in other countries and other—look at their 

foreign law. I wouldn’t say that’s controlling, but it’s something 

that’s useful to look to. That’s what Justice Salito said in his confirmation hearing. I don’t recall anybody disagreeing with him. Do 

you disagree with that? 

Ms. KAGAN. No, that sounds right. 

Senator LEAHY. Thank you. 

Senator Graham. 

Senator GRAHAM. Thank you, Mr. Chairman. 

I don’t think I’ll need a third round, but I would ask maybe a 

little bit of indulgence to go over—if we can’t get through it all very 

quickly. Are you familiar with Plessy v. Ferguson? 

Ms. KAGAN. Yes, sir. 

Senator GRAHAM. I think most people are. It’s an 1896 case and 

it interpreted the equal protection clause how? What did it say? 

Ms. KAGAN. It said that separate but equal facilities were consistent with the equal protection clause. 

Senator GRAHAM. OK. Now, that’s in 1896. And do you know— 

are you familiar with Justice Henry Billings Brown? 

Ms. KAGAN. I feel as though I should be, but I’m going to say no. 

Senator GRAHAM. Well, you don’t want him to be your hero, trust 

me. Here’s what he said in 1896. ‘‘We consider the underlying fallacy of the plaintiff’s argument too consistent in the assumption 

that the enforced separation of the two races stamps the colored 

race with a badge of inferiority. If this be so, it is not by reason 

of anything found in the Act, but solely because the colored race 

chooses to put that construction on it.’’ 

Now, that was the majority holding, one of the holdings, and it 

didn’t change until 1954. So, to conservatives and liberals alike 

who believe that precedent can never change a case, this is a good 

example where I think we’re all glad the case change. Because this 

is what happened in 1954–55. 

Justice Warren: ‘‘To separate them from others of similar age 

and qualifications solely because of their race generates a feeling 

of inferiority as to their status in the community that may affect 

their hearts and minds in a way unlikely ever to be undone. Whatever may have been the extent of psychological knowledge at the 

time of Plessy v. Ferguson, this finding is amply supported by modern authority.’’ 

So, if you could, this could be a little bit of a teaching moment, 

nothing changed in the Constitution word-wise, did it? 

Ms. KAGAN. It did not. 

Senator GRAHAM. So it’s the same words, looked at 50-something 

years apart with a different conclusion. How could the Court do 

that and be consistent with strict constructionism? 

Ms. KAGAN. Well, Senator Graham, I guess a couple of things. 

The words of the Constitution did not change. But two things did 

change. The precedents changed and understandings and circumstances in the world changed. So the precedents clearly did 

change. Brown was not a thunderbolt from the blue. 

Senator GRAHAM. It was the last in a line of decisions; right? 

262 

Ms. KAGAN. It was the last in a long line of decisions. And one 

of Justice Thurgood Marshall’s—his greatest accomplishment was 

to lead up to Brown, step by step, by step, case by case, by case. 

As an advocated, of course, you can have a strategy like that, and 

he did. And by the time the Court got to Brown, upholding Plessy 

actually would have been inconsistent with a series of other holdings that it had reached over the years. And I do think that that 

sometimes happens in constitutional interpretation. It also happens—I mean, we’ve talked a lot about the doctrine of precedent 

and about one reason to reverse a decision is when its doctrinal 

support has been completely eroded. And I think that that is what 

happened in Brown. By the time the Court reached Brown ? 

Senator GRAHAM. And I think most Americans if not universal 

as close to universal as we’ll ever get as a nation are glad it happened in this case. 

Now, there’s another Court decision called Roe v. Wade that’s 

being changed over time, being interpreted differently over time. 

The Court basically held that before viability the right to have an 

abortion was—of a state imposed limitations on abortion was almost non-existent. After viability it was sort of the balancing test. 

Is that a general statement of Roe v. Wade over time? 

There’s a difference between viability and post-viability in the 

eyes of the Court. 

Ms. KAGAN. As I understand the law after Casey, it’s that after 

viability the state can regulate as it pleases except for situations 

where the woman’s life or health interests are at issue. Before viability the question is whether there is an undue burden—— 

Senator GRAHAM. Right. 

Ms. KAGAN.—on the woman’s ability to have an abortion. 

Senator GRAHAM. Right. Is it fair for the Court to consider scientific changes when a fetus becomes viable as medical science 

evolves? 

Ms. KAGAN. Senator Graham, I do think that in every area that 

it is fair to consider scientific changes. I’ve talked in the past about 

how different forms of technology influence the evolution of the 

Court’s Fourth Amendment jurisprudence. 

Senator GRAHAM. I’m glad to hear you say that because just a 

sit would have been wrong to not consider the changes of how society had evolved versus segregation of young children based on race. 

I hope the Court would consider the modern concept of the viability 

in the 21st century and whatever protection you could give the unborn would be much appreciated on my part by considering science, 

not your personal feelings, because I think it’s appropriate for the 

Court to do so. 

Now, let’s talk about Harvard. It’s a great institution, someplace 

I couldn’t have got in, so that makes it, you know, special because 

if you’d let me in it wouldn’t be special. 

Ms. KAGAN. I would have taken you. 

[Laughter.] 

Senator GRAHAM. Not with my SAT scores, I couldn’t even play 

football at Harvard. 

[Laughter.] 

Senator GRAHAM. Now, this ‘‘don’t ask, don’t tell’’ policy you 

thought to be unwise and unjust. Is that—you said, that, I believe? 

263 

Ms. KAGAN. I did, Senator Graham. 

Senator GRAHAM. And you know what, I think a lot of Americans 

agree with you; some do and some don’t. So the fact that you have 

political opinions different than mine is absolutely OK and I hope 

the Committee will in the future let that concept work both ways. 

I think the problem that Senator Sessions has—it’s one thing to 

have strong feelings, the policy was not set by the military it was 

a Congressional enactment which you thought to be unwise and 

unjust. Now, I don’t doubt your affinity and admiration for the 

military. You can disagree with the don’t ask, don’t tell policy and 

still respect the military. I believe that about you and about a lot 

of other people. The problem I have is it was the law of the land. 

Did other schools at Harvard prevent military recruiters from coming to interview their students, or was it just the law school? 

Ms. KAGAN. Senator Graham, I honestly don’t know the answer 

to that. I don’t know what other schools, you know, have employers 

come and how they do it and I don’t know whether any other 

schools have particular policies respecting this. 

Senator GRAHAM. You don’t know if it was—obviously it wasn’t 

a campus-wide ban because the recruiters did meet with law students somewhere else on campus; is that correct? 

Ms. KAGAN. Senator Graham, the recruiters could have met on 

campus as well. 

Senator GRAHAM. That’s what I’m saying, it wasn’t a ban, it was 

just—they couldn’t come to the law school? 

Ms. KAGAN. And could have met on the law school campus. The 

only restriction that we put on was that the Office of Career Services couldn’t provide assistance. 

Senator GRAHAM. Which is the place where most students met 

employers? 

Ms. KAGAN. No, it’s just an office, really. I mean, most—95 percent of interviews from employers at Harvard Law School—— 

Senator GRAHAM. Well, here’s the point, it’s clearly not just an 

office. It was a political statement that you were making, I think. 

Maybe I’m wrong, but it seems to me you were making a political 

statement. You’re not taking the law in your own hands, but you 

were trying to make a political statement on behalf of the law 

school that this office is not going to be used by the military because we don’t like this policy; is that a fair statement or not? 

Ms. KAGAN. Senator Graham, I think what I was trying to do 

was on the one hand to ensure military recruiting, on the other 

hand to enforce and to defend the school’s very long standing antidiscrimination policy. So it wasn’t me making a political statement; 

it was me as Dean of the Law School, and that’s what I was, I had 

an institutional responsibility as Dean of the Law School trying to 

defend an anti-discrimination policy that had existed for, I don’t 

know, 25 years, and—— 

Senator GRAHAM. Well, did it apply to the Catholic Church if 

they wanted to come and recruit lawyers from the law school because they don’t have women priests? 

Ms. KAGAN. Well, the way we enforce this policy is if an employer comes, we give the employer a form. And the form basically 

says, you know, I comply with the following policy. And it says, ‘‘I 

will not discriminate on the basis of’’ and then it says something 

264 

like, race and creed, and gender, and sexual orientation, and actually veteran status as well. And if the employer signs the form the 

employer can get the services of the Office of Career Services. And 

if not, not. 

Senator SCHUMER. So it wasn’t a political statement on your behalf at all? You weren’t trying to tell the world what Harvard Law 

School thought about this policy? 

Ms. KAGAN. It was not, Senator Graham. I was just trying to defend a very long standing and—— 

Senator GRAHAM. It would have been OK with me if it was, I just 

disagree with you, but I’ll take you at your word. 

Now, you were an advocate for—you were a lawyer who played 

an advocate role in the Clinton Administration regarding formulation of policy; is that correct? 

Ms. KAGAN. I was two things in the Clinton Administration. I 

was a lawyer for about half the time and I was a policy person for 

about half the time. 

Senator GRAHAM. OK. Well, when it came to the partial-birth 

abortion debate, there’s a memo that we have here that talks about 

if certain phrases were used by the—what was the group, ACOG, 

what was the acronym? 

Ms. KAGAN. The American College of Obstetricians and Gynecologists. 

Senator GRAHAM. As I understand it, they were going to issue a 

statement that you thought would be a disaster and you wanted to 

get the full statement into place. Was that because you were worried that if you didn’t get what you wanted in place the Court 

might seize upon that statement and make a different ruling based 

on science? 

Ms. KAGAN. No, sir. It was not. I mean, my—this was—— 

Senator GRAHAM. Well, Ms. Kagan, I’m shocked that you say 

that because if I believe the way you do, that’s exactly what I 

would want. If I really did believe that partial-birth abortion as 

being proposed was too restrictive, and I think you honestly believe 

that, that you wanted to have the broadest definition possible when 

it came to partial-birth abortion to allow more cases rather than 

less, that I would have been motivated to get the language most 

favorable to me. And are you saying you weren’t motivated to do 

that? 

Ms. KAGAN. Senator, I was working for a President who had 

clear views on this subject. 

Senator GRAHAM. But you were trying to take him to an area 

where he even felt a bit uncomfortable. You were advocating, from 

what I can tell, a broader view of how partial-birth abortion would 

be interpreted. That when you met with the professional community, the doctors, they informed you early on in a private meeting, 

according to the record we have, that there would be very few cases 

where an abortion would be allowed under the way this thing was 

written. And somebody with your background and your view of this 

issue, to me that seemed disturbing and you were trying to change 

that and broaden it; is that not true? 

Ms. KAGAN. With respect, Senator, it’s not true. I had no agenda 

with respect to this issue. 

I was trying to—— 

265 

Senator GRAHAM. Wait a minute. Wait a minute. I certainly have 

an agenda when it comes to an abortion. I respect the Courts, but 

I’m trying to push the rights of the unborn in a respectful way. You 

can be pro-choice and be just as patriotic as I am. You can be just 

as religious as anybody I know, but that’s the point here. It is OK 

as an advocate to have an agenda. I think Alito and Roberts had 

an agenda. They were working for a conservative president who 

was pushing conservative policies. 

So it just is a bit disturbing that you quite frankly say you don’t 

have an agenda when you should have had. If I’m going to hire you 

to be my lawyer, I want you to have my agenda. I want it to be 

my agenda. 

Ms. KAGAN. I was trying to implement the agenda of the United 

States President whom I worked for. So I was—— 

Senator GRAHAM. Did you have a personal belief that partialbirth abortion was—as being proposed was too restrictive on a 

woman’s right to choose? 

Ms. KAGAN. I was, at all times, trying to ensure that President 

Clinton’s views and objectives with respect to this issue were carried forward. And President Clinton had strong views with respect 

to this issue. 

Senator GRAHAM. But here’s the issue between being a lawyer 

and a policy person in a political shop. I would—I just want to try 

the best as I can. It’s OK if you did. I expect that presidents are 

going to hire talented, intellectually gifted people who think like 

they do that will push the envelope when it comes to that law. And 

the record is replete here on this issue and others, you were pushing the envelope in terms of the left side of the aisle. I think the 

record was replete with Alito and Roberts that they were pushing 

the envelope on the other side. And that may make you feel uncomfortable. I hope it doesn’t. I just believe it to be true and you don’t 

agree with me there. 

Ms. KAGAN. Senator Graham, the two of us have agreed on many 

things over the course of this hearing and—— 

Senator GRAHAM. But we don’t agree on this? 

Ms. KAGAN—[continuing]. But we don’t agree on this. 

Senator GRAHAM. That’s fair. 

Ms. KAGAN. But what I tried to do was to implement the objectives of the president on this issue. At the same time to provide the 

president with the best legal advice, straight objective as I could. 

Senator GRAHAM. Fair enough. 

Ms. KAGAN. And when I became a policy person to enforce and 

to ensure that his policy views were carried out. 

Senator GRAHAM. I just quite frankly am surprised to hear that 

because if I believe the way you did and I had the opportunity to 

serve at that level, I would do everything I could to push the law 

in my direction in a way that was ethical. And I didn’t see anything you did that was unethical. I did see an effort on your part 

to push the law in a direction consistent, I think, with the Clinton 

Administration and your political beliefs which is absolutely fine. 

An activist judge is something none of us like, apparently. Nobody on that side likes it and nobody on our side likes it. Help me 

find one. 

Ms. KAGAN. I’m sorry? 

266 

Senator GRAHAM. Help me find one. Can you think of anybody 

in the history of the United States that was an activist judge? Because we don’t like these people. It seems to me an activist judge 

is somebody who rules the way we don’t like. And it’s getting to 

be no more sophisticated than that and I would like it to be more 

sophisticated than that. So, what is your definition of an ‘‘activist 

judge’’ ? 

Ms. KAGAN. Well, Senator Graham, I think my definition is 

somebody who doesn’t take three principles to heart. The first principle is deference to the political branches in making the policy decisions of this Nation, because that’s who ought to be making the 

policy decisions of this Nation. 

The second principle is respect for precedent. Precedent as a doctrine of constraint and humility. And also stability in the law. 

And the third principle is deciding cases narrowly. Deciding them 

one at a time, deciding them on narrow grounds if one can, avoiding constitutional questions if one can. 

Senator GRAHAM. Well, our guys say that Justice Marshall was 

an activist judge; do you agree with that? 

Ms. KAGAN. Senator Graham, I’m not going to characterize any 

Justice as an activist judge, as a restrained judge. I think the best 

I can do is to set forth the principles that I think are appropriate 

and to say that if I’m so lucky—if I’m lucky enough to serve, Justice Kagan would abide by those principles. 

Senator GRAHAM. And I totally understand the dilemma you’re 

in. But we keep using that term and Justice Marshall will go down 

in history as one of the icons of the law and one of the greatest 

justices in the history of the country even though I disagree with 

a lot of his rulings. That’s the way it should be. If our people say 

that’s activism, so be it. I hope Justice Roberts, which I think is 

one of the most gifted—intellectually gifted people I’ve ever met— 

is being called by my colleagues on the other side, for 2 days now, 

an activist Court. And we’ve got somebody is wanting to be on the 

Court. Can you name one person in the United States that you 

think would be an activist judge, living or dead? 

Ms. KAGAN. You know, I have a feeling that if I do that I’m going 

to end up doing many things that I regret. 

[Laughter.] 

Senator GRAHAM. Well, here’s what I regret, I regret all of us 

throwing these terms around without any—any definition to it 

other than we just—you know, we believe the way they judge is 

just not the right way. 

Now, Judge Barak, if this guy is not an activist judge, I don’t 

know who would be. Now, he’s an Israeli judge, so maybe we 

shouldn’t talk about Israeli activism because that’s foreign activism, but I’m going to go ahead and do it anyway. If Senator Kyl 

doesn’t mind. 

Here’s what Judge Barak said, ‘‘the judge may give a statute a 

new meaning, a dynamic meaning that seeks to bridge the gap between law and life’s changing reality without changing the statute 

itself. The statute remains as it was, but its meaning changes because the Court has given it a new meaning that suits a new social’’—‘‘that suits new social needs.’’ What the hell does that mean? 

267 

Ms. KAGAN. I think it means that the Court can change a statute 

and I think that that’s wrong. 

Senator GRAHAM. I think the fact that you don’t like what he 

said makes me feel better about you because this is so nebulous 

and so empowering to a judge it would make an elected official like 

me feel very worried that the judge doesn’t understand the difference between going out and getting elected to office and reviewing policy made by elected officials. 

Ms. KAGAN. And now we’re back to agreeing, Senator Graham. 

Senator GRAHAM. And we’re going to end it there. I wish you 

well. You have handled yourself well. We have some differences. I 

think the hearings have been on the margins better, but not a lot 

better than they’ve been in the past. 

I wasn’t trying to trick you. I think as an advocate in the Clinton 

Administration and other places you have tried to push the law in 

an ethical way in a particular way consistent with your philosophy 

and your political leanings, and I just want my colleagues to know 

that is OK with me. The thing that would not be OK with me is 

if I thought you were unethical and you did it in a way outside the 

process that we call ‘‘the rule of law.’’ So I wish you well, and I 

know your family is proud of you and I think you’ve acquitted yourself very well over the last several days. 

Ms. KAGAN. Thank you, Senator. 

Senator CARDIN. Thank you, Senator Graham. I don’t think we 

need to do this, but let me just go over your 2009 confirmation 

hearings when you were asked about the partial-birth abortion decision. You repeatedly stated that you would respect Gonzalez v. 

Carhart in which the Court rejected a facial challenge to the Federal Partial-Birth Abortion Ban Act based on stare decisis. That’s 

what you said in the last hearing. I assume that’s your position 

today? 

Ms. KAGAN. Absolutely, Senator Cardin, that Gonzalez is settled 

law entitled to all the precedent of settled law going forward. 

Senator CARDIN. And I just really want to make a personal comment as I did on my opening statement. Many of us believe Roe 

v. Wade is a matter of privacy and a woman’s right of choice and 

it’s not really taking sides on abortion. Not whether you favor or 

oppose abortion, whether you favor a woman’s right of choice and 

right of privacy and what is the appropriate role for the government to play in those types of decisions. 

With Senator Graham still here, I want to just go back to one 

of the points that Senator Graham raised on enemy combatants 

and their rights to certain proceedings. And I think I’m quoting 

Senator Graham correctly when he said, ‘‘if we took the war on terror and made it a crime, we have a problem for our country.’’ And 

I think that sort of misses the point. And, Solicitor General, I think 

the point that the administration was seeking is that there are certain rights in our criminal justice system that defendants are entitled to, they’re different under military commissions for enemy 

combatants, but that we have the right, not the enemy combatant, 

to determine which venue we can bring about the best justice. If 

we think that an action by an enemy combatant was criminal, we 

want to use an Article 3 proceeding, and if we think we can get 

a better result, why would we want to take away that right? Why 

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would we want to limit our ability to hold a terrorist accountable 

for their actions, whether it is as an enemy combatant in a military 

commission or whether it’s in an Article 3 court under our criminal 

code? 

Was that the position that the administration was taking when 

you were Solicitor General, or you are still taking as Solicitor General? 

Ms. KAGAN. Senator Cardin, I’m going to say the same thing to 

you that I hope I said to Senator Graham, which is, this is not a 

set of policy decisions that the Solicitor General’s Office or that I 

personally had anything to do with. And I feel uncomfortable discussing that. I think that these are questions that are better addressed to the people who are making policy within the Justice Department on this issue. 

Senator CARDIN. And I respect that. I just really wanted to clarify the choice. It’s not a choice between giving enemy combatants 

certain additional rights. It’s a question of where we believe we can 

hold a terrorist more accountable. 

Senator GRAHAM. If I could, Senator. 

Senator CARDIN. Certainly. 

Senator GRAHAM. I guess that was a question for her, but I’ll answer it and see if you disagree with my answer. 

I really have no problem using Article 3 Courts in the war on terror. In many cases they can be a better venue. I think military 

commissions can be a good venue to prosecute war crimes, but the 

higher—the third bucket, as we all talk about, are those enemy 

combatants that the Court has deemed to be an enemy combatant. 

But the evidence for whatever reason is not subject to criminal 

scrutiny whether it be a military commission trial or Article 3 trial, 

or the evidence may be such that you, under the rules of discovery 

of both proceedings, you couldn’t divulge it without hurting national security, it’s in those cases, the 48 that the Obama Administration has identified, that the Congress needs to weigh in with the 

executive branch to understand that the law of war detention is the 

only valid theory that you can hold someone in that third category. 

And when it comes to, quite frankly, the treatment of prisoners, 

it becomes about us, not them. I love the Geneva Convention as a 

military lawyer. It is not an individual right and I want my country to abide by it to the fullest extent possible and win this war 

within our values. 

The one thing I would say in conclusion is that when it comes 

to having your day in court as to whether or not you’re an enemy 

combatant, I believe an independent judiciary should look over the 

military’s shoulder and you have to prove to an independent judge 

that the military is right that you are in fact an enemy combatant. 

But I do not believe our laws should allow enemy prisoners to bring 

lawsuits against our own soldiers, medical malpractice cases 

against doctors, or sue prison guards because they don’t like the 

quality of the food. That to me is not consistent with war and that’s 

what I oppose. 

Senator CARDIN. I thank you for that. We’ve had this discussion 

in our Committee and I think, Solicitor General Kagan, you are 

correct, these are issues that we’re going to have to grapple with 

as the legislative branch of government, hopefully working closely 

269 

with the executive branch. The bottom line is that for those who 

commit acts of terror against the United States we need to have 

an effective way to bring them to justice, whether it’s within the 

military commission system or whether it’s within our Article 3 

courts. And we should be able to choose the best venue for holding 

those terrorists accountable. 

I know you had an exchange with Senator Feinstein on the interplay between the establishment and free exercise clause. And I 

want to talk a little bit more about that because I related to your 

opening statement when you talked about your grandparents coming to this country, for one reason, because of the religious freedom 

of this Nation which was so dominantly lacking in Europe. The 

same reason brought my grandparents to this country. So the freedom of religion is a critical part of this country’s tradition. 

When we discussed the free exercise and establishment clause 

with Senator Feinstein—when you did, you said that there is some 

play in the joints for the government to act to make reasonable accommodations for religion consistent with both the free exercise 

and establishment clause. And then you mentioned the Lemon 

three-part test from 1971 which you correctly noted has not been 

overturned, but has not always been used by the Court either. I 

want to focus on the test used by Justice Kennedy in the Court 

opinion of Lee v. Weisman, in which he struck down as unconstitutional school-sponsored prayer at a public school graduation ceremony. 

My question to you is what special protection should students 

have under the establishment clause? 

Ms. KAGAN. Well, what Senator Kennedy focused on, I think I 

said to Senator Feinstein that some members of the Court have 

used on certain occasions a coercion test. The question as to whether a particular governmental action coerces a person in his or her 

religious beliefs. And the Levy/Wassmann case is one that does use 

that coercion test in a way that provokes strong disagreement as 

well. The question about whether that graduation prayer did coerce 

students in a constitutionally meaningful manner. Senator Kennedy, a majority of the Court held that it did. 

As the Court’s precedent has come down, it seems a highly factspecific inquiry. Certainly the coercion test is used most often when 

it comes to children. And the Court—you know, the Court’s cases 

essentially see a difference between coercion of adults thinking that 

adults can kind of stand up for themselves and coercion of children 

where there’s a greater fear of the government’s impact—coercive 

impact. And I think that Levy/Wassmann reflects that. 

But it is a contentious area in the law. With some people I think 

that that case is a good example of the way in which people can 

look at the same kind of action and some see coercion and some 

not. 

Senator CARDIN. Thank you very much for that reply. It’s very 

helpful. With that I’m going to recognize Senator Cornyn for his inquiry. 

Senator CORNYN. Thank you, Mr. Chairman. 

General Kagan, let me start off with just a little housekeeping 

before we get into the main body of what I want to talk to you 

about. My experience, and I would be interested if your experience 

270 

is the same, is that sometimes people who are not members of the 

legal profession, when they hear lawyers talk, or maybe even 

judges when they disagree in the context of written opinions, majority and dissenting opinions, the like, sometimes they read into 

that talk a sort of personal animosity or something more than just 

a disagreement over what the law is or is not. Have you had a 

similar experience or observation in your career? 

Ms. KAGAN. Well, Senator Cornyn, I do think that sometimes 

people can take a look at opinions and they’re very strongly worded 

and think, my gosh, these people must just hate each other. And 

then it turns out that not at all, there are good faith differences 

on the law, but the same people who are sort of taking swipes at 

each other in opinions see each other as people who are operating 

in complete good faith and get along with each other in the next 

case or the case before, and certainly in their lives. 

Senator CORNYN. Well, you made the point better than I did. And 

it’s come to my attention—actually there was something published 

in the newspaper today that suggested that those of us who have 

tried to draw this line between activist judges who don’t feel constrained by a written Constitution and laws or who feel like they 

have more liberty to basically make things up, this is my characterization, and judges who feel bound to a traditional view—I spoke 

to this in my opening statement—there were some folks who—or 

actually an op-ed that was published today that suggested that 

those of us who talked about Justice Marshall and talked about his 

judicial philosophy were somehow disparaging Justice Marshall. 

Did you read any disrespect in any of the comments that any of 

us have made about Justice Marshall or did you understand it to 

be a criticism or disagreement with his judicial philosophy? 

Ms. KAGAN. Senator Cornyn, I didn’t see the op-ed, I’ve been trying very hard not to read the papers. 

Senator CORNYN. That’s smart. 

Ms. KAGAN. Senator Cornyn, I take everything that has been 

said here from all the way around the bench as people operating 

in good faith. And certainly I’ve gotten nothing but fairness and 

courteousness from everybody, from every member of the committee. I take no offense on behalf of myself or on behalf of Justice 

Marshall or on behalf of anybody else at anything that’s been said 

here. 

Senator CORNYN. Thank you. 

I want to ask you a little bit more—we’ve talked a lot about constitutional interpretation and I want to read a statement to you. 

And this is not a trick question. So if you want me to read it again 

or go over it more slowly I will. And I want to get your thoughts 

on this statement of constitutional interpretation. And it starts this 

way: ‘‘Original understandings are an important source of constitutional meaning, but so too are other sources that judges regularly 

invoke. The purpose and structure of the Constitution, the lessons 

of precedent and historical experience, the practical consequences 

of legal rules, and the evolving norms and traditions of our society.’’ Do you generally agree with that statement, or is there any 

part of it that you disagree with? 

Ms. KAGAN. You know, I think I would—I am trying to think— 

I mean, I think that what I’ve said is that you look to text, you 

271 

look to structure, you look to history, very much including and very 

especially the original understandings, and you look to precedents. 

And in one or another of cases, one of those may be more important 

than others of them. In some cases you might look to all of them. 

And that’s a kind of pragmatic approach, not an approach that 

takes a sort of grand, overarching philosophical view as to, you 

know, it’s just one thing and it’s got to be that one thing in every 

case. And that’s the way I would approach the—— 

Senator CORNYN. And that’s consistent with what you’ve said as 

I’ve heard you testify yesterday and today. And really the part of 

it that I was interested in was the last phrase which talked about 

evolving norms and traditions of our society. What role do you 

think a judge’s opinion of the evolving norms and traditions of our 

society have in interpreting the written Constitution? 

Ms. KAGAN. Well, I think that traditions are most often looked 

to in considering the liberty clause of the Fourteenth Amendment. 

I think every member of the Court think that the liberty clause of 

the Fourteenth Amendment applies to more than physical restraints and I think almost every member thinks that it gives them 

substantive protection and not just procedural protections. 

And then the question becomes, what substantive protections 

does it provide? And I think that the best statement of the approach that the Court has used is actually Chief Justice 

Rehnquist’s statement in the Glucksberg case. Because he says he 

basically agrees with both of those things that the Due Process 

Clause provides substantive protection and means more than restraint from physical restraint. But then the question is, how do 

you define that and do you appropriately limit that? Because it’s 

for sure the case that the Courts should not use that clause to appropriate decisions that best belong to the American people. 

Senator CORNYN. Let me ask you another follow-up question. The 

author of the statement that I read is Goodman Liu, a professor 

at the University of California at Berkeley and a pending judicial 

nominee. He goes on to conclude, based on that statement of what 

the appropriate role of the interpretation of the Constitution is, he 

goes on—or he has concluded that the Fourteenth Amendment requires the government to provide citizens with certain social and 

economic rights including a high quality education, expanded 

health insurance, child care, transportation subsidies, job training, 

and a robust earned income tax credit. 

He also believes, or has written, that the Fourteenth Amendment 

guarantees a right to same-sex marriage. He says that ‘‘evolving 

norms can change the ambit of the Second Amendment’s protection 

as interpreted by the Court.’’ He’s also opined that the Fourteenth 

Amendment requires the nationalization of education by prohibiting the local funding structure that states use to support their 

education systems. 

In applying this interpretative standard, would you—well, I’m 

not going to ask you whether you agree with that, because that 

might ask you to decide a case that would come before the Court; 

correct? 

Ms. KAGAN. Well—— 

272 

Senator CORNYN. I was going to ask whether you agree or disagree with some of those stated opinions about what the Fourteenth Amendment means as Professor Liu has articulated? 

Ms. KAGAN. You said a lot there. And I think that the view that 

I would have is consistent not with any particular article by Mr. 

Liu or otherwise. But it is consistent with the way that the Court 

has approached these questions and I particularly think of the 

Glucksberg case which does talk about that way the Court looks to 

traditions, looks to the way traditions can change over time, but 

makes sure—makes very clear that the Court should operate with 

real caution in this area, that the Court should understand that 

the liberty clause of the Fourteenth Amendment does not provide 

clear signposts, should make sure that the Court is not interfering 

inappropriately with the decisions that really ought to belong to 

the American people. And so should understand that the clause 

protects things, but should act in this area with appropriate caution and respect for democracy. 

Senator CORNYN. Well, I know you understand the gist of where 

I’m coming from. The concern is, of course, that if judges, particularly Federal judges, who serve a lifetime tenure, believe it’s within 

their power to interpret the Constitution based on their subjective 

notion of what represents evolving norms and traditions then constitutional law very quickly becomes very separated from and 

untethered from anything you might call written law, or law representing the consent of the governed. That’s the concern, and I’m 

sure you understand it. 

I’m not asking whether you agree, I’m just suggesting that that’s 

my concern. And you seem to agree that judges ought to act very 

carefully. And I would suggest my own view is that it is not an appropriate role for a Federal judge to render subjective judgments 

about evolving norms and traditions. That’s what Congress is here 

for, to act responsibly to the needs and desires and the wishes of 

the American people. And, of course, we stand for election and we 

can be replaced if the people disagree with us—but not judges. 

Let me change topics here quickly. And I have a series of questions here and I tried to frame these in a way that would permit 

a short answer and then I’d like to ask you then a larger question 

and I’ll certainly allow you an opportunity to explain and to say 

anything you like in response. 

This has to do with the Solomon Amendment that there’s been 

a lot of discussion about. I told you yesterday that I had concerns 

about your handling of military recruiters on campus when you 

were dean of the Harvard Law School. And let me just ask you 

some questions about that, just to sort of establish exactly what 

happened so everybody can get their brain around it. 

You argue that the military had good access to recruit Harvard 

Law students even during the periods before 2002 and from November 2004 through September 2005 when the military was 

barred from using the services of the Office of Career Services; correct? 

Ms. KAGAN. I think that the military had good access during the 

periods where the Office of Career Services handled it and had 

good access when the veterans association handled the matter. 

273 

Senator CORNYN. And when they were barred from the Office of 

Career Services, you believe that they still had good access? That’s 

my question. 

Ms. KAGAN. Yes. When the Office of Career Services did not provide the assistance, but instead the Veterans Association provided 

the assistance. And I think that the figures suggest that. That both 

before 2002 and in the single recruiting period in 2005 when the 

Veterans Association handled this, there were just no differences in 

the numbers. To the extent that there were any differences, they 

went up in 2005. 

Senator CORNYN. Of course, you can’t tell, and we can’t know, 

what they would have been if they still would have had access to 

the Office of Career Services. But basically you’ve gone on to answer my second question. During the time when they were barred 

from the Office of Career Services they had access to the Harvard 

Law School Veterans Association which was an alternate channel 

for military recruiting; correct? 

Ms. KAGAN. That’s correct. Way back before I became dean my 

predecessor put in place this accommodation, this way of trying to 

defend the law school’s anti-discrimination policy but also enabling 

the military to recruit and that used the Veterans Association and 

they—the Veterans Association in all those years was just great in 

doing the things that the Office of Career Services otherwise would 

do. 

Senator CORNYN. And as the dean of the law school, you had the 

power to make an exception to the anti-discrimination policy if you 

chose to do so; correct? 

Ms. KAGAN. Well, it was a faculty-approved anti-discrimination 

policy but I do agree with you, Senator Cornyn, that I would 

have—you know, I would have gone to the—I do agree with you 

that I had substantial authority over that question. 

Senator CORNYN. That’s all I’m asking. 

Conversely, the United States military didn’t have any discretion 

to waive its policy because it was product of a Congressional act; 

do you agree with that? 

Ms. KAGAN. I do. That the military could not sign the discrimination policy that Harvard had because of the statute that was 

passed by Congress. And that, of course, presented the issue that 

was involved is that the military could not sign the school’s antidiscrimination policy, the school and I as dean felt a real imperative to enforce that policy, to defend that policy, but still to ensure 

that the military had very good access to all our students so that 

they could serve in the military. Because, you know, that was of 

critical importance. 

Senator CORNYN. And this is really the nub of it: the Solomon 

Amendment, which is what we’re talking about, denies Federal 

funds to an educational institution that prohibits or in effect prevents military recruiting; isn’t that generally what the Solomon 

Amendment does? It denies Federal funds to an institution that denies or prohibits or in effect prevents military recruiting on campus? 

Ms. KAGAN. It places a condition on Federal funding and I forget 

the exact language that the Solomon Amendment—but it’s about 

military recruiting on campus. 

274 

Senator CORNYN. And I think my notes here, from your earlier 

testimony, were to the effect that you believed that this alternative 

through the veterans center and other locations on campus provided an ‘‘equally effective substitute;’’ is that correct? 

Ms. KAGAN. This policy, I think, had worked well in the period 

before I became dean up until 2002. The Department of Defense 

had found this policy fully acceptable and it was my understanding 

that the Department of Defense and—that that was true, that their 

view that the policy enabled them good access. It was right, the 

policy did enable them good access. 

Senator CORNYN. But your understanding was that, at a certain 

point in time, if Harvard Law School continued with this policy of 

denying them access to the Office of Career Services it would be 

denied Federal funds? 

Ms. KAGAN. Well, that happened before I became dean. So that 

happened the year before. In 2002 the Department of Defense said 

that it had changed its mind that for many years it had found the 

Harvard policy acceptable and had thought that it provided full access. In 2002 the Department of Defense came to the school and 

said that it in fact wanted the assistance of the Office of Career 

Services. 

Senator CORNYN. And this is my—this is my final point on this. 

If, as you say, this policy of Harvard Law School in barring the 

military recruiters from the Office of Career Services had no impact on military recruiting at Harvard Law School, it strikes me 

that the sole result and impact was to stigmatize the United States 

military on the campus, a service—services that you say you honor. 

So, explain to me what impact the policy had other than to stigmatize the military? 

Ms. KAGAN. Senator Cornyn, it certainly was not to stigmatize 

the military. Every time I talked about this policy and many times 

besides I talked about the honor I had for the military and how 

much the military meant to our country and how we all have the 

freedoms that we have because of the military. 

Senator CORNYN. I heard you say that and I will stipulate that 

is what you said all along. But if the policy had no impact on recruiting at Harvard Law School, what possible purpose could it 

serve other than to stigmatize the military? In effect, you provided 

a separate but equal means of providing access to students on the 

campus. 

Ms. KAGAN. I think the purpose of the policy was something different. It was certainly not to stigmatize the military. The purpose 

of the policy was to express support for our students who were 

being discriminated against, for our gay and lesbian students who 

wanted to serve in the military. And the policy was meant to support them or to support with respect to other employers any other 

students who were being discriminated against and to say, you 

know, we support those students. And at the same time—at the 

same time to ensure that our students who wanted to go into the 

military had excellent access to military recruiters and vice versa. 

Senator CORNYN. Mr. Chairman, I have 50 seconds remaining. I 

do have just a few more minutes of questions. And I would be 

happy to do it on another round after my time or if you would give 

275 

me just a couple more minutes of flexibility I would be glad to finish. 

Senator LEAHY. In lieu of another round, and we are going to 

take a break when you finish. Do you have any problem with us— 

and saving another round? 

Ms. KAGAN. I’m sorry? 

Senator LEAHY. Do you have any problem—we’re going to have 

a break when Senator Cornyn finishes, do you have any problems 

with going a couple more minutes and this way he’ll—— 

Ms. KAGAN. No, that’s good. That’s fine. 

Senator LEAHY.—forego another round. 

Ms. KAGAN. That’s great. That’s great. 

Senator CORNYN. I’ll be less than 5 minutes, if that’s all right? 

Thank you. 

Let me change topics, Ms. Kagan. And this gets back to questions we’ve heard about the Commerce Clause. And, again, this is 

sort of the jurisdictional hook that Congress finds in legislating in 

areas that have provided, I think we would all agree, rather expansive Federal jurisdiction over much of our lives. 

And you mentioned yesterday the Lopez and Morrison cases and 

of course those were a couple of cases that were decided when 

Chief Justice Rehnquist was chief. By five to four the Court said 

that ‘‘government actions that were defended as legitimate regulations of commerce must deal with commerce as opposed to noneconomic matters.’’ I believe you said as much. 

Do you agree with the Court’s decisions in Lopez and Morrison? 

Ms. KAGAN. Well, Senator Cornyn, I’ve refrained from agreeing 

or disagreeing, but I do believe that Lopez and Morrison are settled 

law and entitled to the precedential weight that one gives to any 

decision. 

Senator CORNYN. Do you know or do you recall whether you’ve 

ever written or spoken expressing previously and having expressed 

an opinion one way or another about Lopez or Morrison? 

Ms. KAGAN. You know, Senator Kyl asked me that question. I 

don’t think that I’ve done any academic work on the subject. I don’t 

know whether I’ve spoken about them in any of my many speeches 

or anything like that. 

Senator CORNYN. OK. Well, one document that was among the 

many documents that we got from the Clinton archives was a 

memo you sent to the Deputy Chief of Staff at the White House on 

March the 31st regarding the recently decided Supreme Court case 

of Seminole Tribe v. Florida where you noted the ‘‘broad significance’’ of the opinion. In that memo you said, ‘‘the decision, especially when viewed together with the holding last year that Congress lacked authority to prohibit guns near schools, indicates a serious effort by a bare majority of the Court to reorient the balance 

of power between the Federal Government and the states. It’s highly unlikely that this case will be the last one to pursue that states’ 

rights agenda.’’ 

Now, this language in your memo is strikingly similar to the 

opening paragraph of a New York Times article entitled, ‘‘Lurching 

Toward States Rights’’ that you attached to the memo I just referred to. The opening paragraph of the article reads: ‘‘A headstrong five Justice majority is driving the Supreme Court toward 

276 

a revolutionary, indeed reactionary, interpretation of federalism, 

tilting the balance dangerously toward states’ rights at the expense 

of Federal power.’’ Did you agree then that the article—with that 

article that the Supreme Court’s federalism jurisprudence was reactionary and dangerous? 

Ms. KAGAN. You know, Senator Cornyn, I don’t at all remember 

the article and I’ve not seen it. I have seen more recently that 

memo which I just sort of think of as the Seminole Tribe memo. 

It’s a memo about the Seminole Tribe case. 

Senator CORNYN. Right. 

Ms. KAGAN. And I think that I was—you know, what I did was 

I described that case. I guess I said in light of Lopez it does suggest 

that the Court is reorienting the Federal/state balance in this area 

which I think indeed happened in those year. I think that that was 

probably—if I caught that sentence that you wrote, I had referred 

to Lopez, but this was probably before Morrison. So I think that 

there were this set of changes that occurred in those years and that 

memo was about neither of those, it was about Seminole Tribe 

which dealt with Congress’ ability to abrogate state sovereign immunity under the Commerce Clause. 

So that was a few years of—you know, important developments 

in the law relating to the Federal/state balance. 

Senator CORNYN. In fairness to you, what my question is, is 

about the article, not your—not what you wrote ? 

Ms. KAGAN. And I’ve not seen that. 

Senator CORNYN. And the article refers to the Supreme Court’s 

federalism jurisprudence reactionary and dangerous. Do you agree 

with that characterization or do you disagree? 

Ms. KAGAN. Senator Cornyn, I have refrained from saying 

thumbs up, thumbs down on any cases. 

Senator CORNYN. I’m not asking you that. I’m asking you, do you 

agree with the characterization that the Supreme Court’s federalism jurisprudence was reactionary and dangerous? 

Ms. KAGAN. It actually sounds—I don’t even know what it means 

to be reactionary and dangerous. But the Morrison case, the Lopez 

case, the Seminole Tribe case are settled law. And I have, you 

know, no—I’ll say this, no plan, no purpose, no agenda, no anything to mess with them. 

[Laughter.] 

Senator CORNYN. That’s a legal term, I think. 

Ms. KAGAN. Mess with them. 

[Laughter.] 

Senator CORNYN. I have one last question. I’m sure that’s welcome news. 

Can you name for me any economic activity that the Federal 

Government cannot regulate under the Commerce Clause? 

Ms. KAGAN. I wouldn’t try to, Senator Cornyn. The test that the 

current court is using is this test of economic verus non-economic 

and that’s the test that I would expect to use under settled precedent. And if there are cases in which indeed the claim is presented 

that economic activity should not fall within Congress’ commerce 

power, those will be cases that I will decide in the appropriate way 

by reading the briefs and listening to the arguments and talking 

to my colleagues. 

277 

Senator CORNYN. Thank you very much. 

Ms. KAGAN. Thank you, Senator Cornyn. 

Senator LEAHY. Mr. Cornyn, does that get you—thank you very 

much. Then we will take a recess subject to the call of the Chair. 

[Recess taken at 3:34 p.m.] 

Senator LEAHY. OK. Good afternoon. 

A number in the press have asked about the schedule. Just so 

you understand we were having a discussion up here. We will finish the questions and we don’t have all that much left. And then 

we, as far as the press knows, we will then go to the traditional 

closed session. And the press won’t be able to be there. Nor will 

any, but one camera, and then that will be it for tonight. 

And the public witnesses, I talked with Senator Sessions, we will 

begin with those after the rest and repose time in the Senate for 

Senator Byrd tomorrow. You, of course, can sit with your feet up 

and watch that part. 

Ms. KAGAN. I can’t come back? 

[Laughter.] 

Senator LEAHY. You know, if you’re that much of a glutton for 

punishment, you’re not qualified to be in the Supreme Court. 

[Laughter.] 

Senator LEAHY. But you can throw kisses to the TV set for those 

who said nice things. You can throw stuff at the TV set for those 

who say bad things. 

Ms. KAGAN. You know, I think I won’t watch. 

[Laughter.] 

Senator LEAHY. You know, that’s probably not a bad idea. 

I’m sure your staff will—Ms. Davies will tell you—— 

Ms. KAGAN. Tell me everything I need to know. 

Senator LEAHY. She’ll tell you when the good news comes. 

With that, Senator Whitehouse. 

Senator WHITEHOUSE. Thank you, Chairman. 

Ms. Kagan, I’d like to take up our previous discussion again, 

which I know you’ve had a number of folks in between. So where 

we had left off, I think we had agreed that it is inappropriate for 

a judge to bring a particular agenda to the Supreme Court, and I— 

just to recapitulate, we do agree on that? 

Ms. KAGAN. Yes. 

Senator WHITEHOUSE. Yes. So if a judge or judges had a particular agenda or motivation, say to serve the interests and reflect 

the values of a particular political party, that would be inappropriate? 

Ms. KAGAN. That would be the worst possible thing. 

Senator WHITEHOUSE. And since it would be inappropriate, the 

worst possible thing, is it likely that such a judge would disclose 

that agenda or motivation, would make it a part of a written opinion, would admit it? 

Ms. KAGAN. Senator Whitehouse, as you asked the question, that 

seems unlikely. 

Senator WHITEHOUSE. Doesn’t it? 

Ms. KAGAN. Yes. 

Senator WHITEHOUSE. So if you had such a judge or judges on 

a court and they would not disclose such an agenda or motivation 

because it is so inappropriate, you would have to look for a pattern 

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of decisions to determine whether such an agenda or motivation 

were being pursued, would you not? 

Ms. KAGAN. Senator Whitehouse, I guess I don’t want to make 

any comment about how one should—how one should discover a 

judge with an agenda. 

Senator WHITEHOUSE. But certainly that would be the only way, 

since it would never be in the decision itself as a matter of the textual content of the decision, because that would be so inappropriate. 

Ms. KAGAN. Senator Whitehouse, I think I can only say what I 

just said. 

Senator WHITEHOUSE. Well, I wonder if there might be—we’ve 

discussed a few other things that might be similar telltales if 

judges were seeking to impose a particular point of view or to reflect a particular point of view. Those telltales, one might be a 

tendency to 5–4 decisions, which would be a logical clue, since a 

broader consensus of judges, as we discussed, would make it difficult to move more aggressively. If your intention is to move more 

aggressively, you’re more likely to deliver a lot of 5–4 decisions. 

That would be another telltale that we discussed. 

Another telltale might be findings of fact by a Supreme Court 

that are essential to a particular decision, even though an appellate 

court is not supposed to make such findings of fact. Another telltale 

would be advancing a theory of precedent that allows judges to selectively undermine and topple precedent—again, selectively—by 

hotly contesting it. Are there any telltales that you can think of 

that would suggest the presence of a particular agenda or motivation on the part of judges beyond those? 

Ms. KAGAN. Senator Whitehouse, I have to be honest with you 

and say that I’m more focused right now on what I would do as 

a justice if I’m fortunate enough to be confirmed, than any ways 

of discovering what any other judge might do that’s inappropriate. 

As I suggested to you before, I assume the good faith of everybody 

on the court and I think that’s the way I will approach the job and 

the institution. 

Senator WHITEHOUSE. And in your position I think that’s the correct answer and the right thing to both say and do. But for those 

of us who have been witness here to lengthy discussions about the 

importance of precedent and the danger of judicial activism and 

who have seen you challenged as to whether you’ll be able to be 

a neutral and dispassionate judge, one without a motivating agenda, it is a matter of interest to take a look at what appear to be 

the clear telltales that would be left by judges with that motivation 

or agenda and see how often they actually appear in the recent behavior of the court, particularly the five Republican appointees who 

steered it so hard to the right. 

Of the telltales that we’ve talked about, a pattern of decisions 

going a certain way, a tendency toward 5–4 decisions, an improbably and unusual finding of fact by an appellate court in a major 

case, and an announced theory of precedent removal by hot contest 

by the judge, we seem to be batting, what is that, five for five. And 

I say that not to seek a response from you at this point, because 

I think you’ve given a complete and adequate response as a nominee to the court to say that it’s not your intention going into that 

279 

court to begin by trying to assess whether there are judges on that 

court who have motivations to pursue a particular ideology. 

But I think for those of us who have to protect and safeguard the 

institution, it’s also important for us to look back and see how we 

did and what we can learn from other previous nomination hearings where we were given very, very straightforward assurances 

about the importance of precedent and how nothing but balls and 

strikes would be called, and how clearly we were going to be, you 

know, very careful, modest, precedent-respecting judges, and then 

we saw this: every available telltale that would ring if judges were 

pursuing a particular agenda or strategy, other than to say it right 

out in the decision itself, which we’ve agreed is something that no 

judge would do because it would be so inappropriate. 

I think you said the worst possible thing. Every other potential 

bell that we can think of is ringing, and so that’s why I mention 

it, because I do think it is a matter of general concern, although 

I don’t dispute your answer to my questions. I think you’re in exactly the right place where you should be on that point, and I appreciate that. 

Ms. KAGAN. Well, Senator Whitehouse, I think it’s not a matter 

of being in the right place. I think I’m saying what I think, which 

is that I respect the court as a whole enormously as an individual, 

and each of the members on it. That respect has grown every day 

in the year that I’ve been Solicitor General. 

Senator WHITEHOUSE. Well, I respect the court as an institution, 

too, and I think it’s vitally important because it does not have the 

power of the purse or of executive administration because it stands 

on the confidence of the public, that when all these telltales are in 

place it is a cause for some concern, at least for some of us. So 

again, I appreciate the time we’ve had. I wish you well, and I 

thank you again for the candid and complete nature of the way in 

which you are responding to questions here today. I think the window onto Elena Kagan that America is getting in these hearings 

is one of a very bright, very good-humored, very well-intentioned, 

and very able future Supreme Court justice. So, I thank you. 

Ms. KAGAN. Thank you. 

Senator WHITEHOUSE. Mr. Chairman. 

Chairman LEAHY. Thank you very much, Senator Whitehouse. 

Senator Coburn. 

Senator COBURN. Thank you. 

Well, here we go again. I was just wondering, yesterday you were 

asked a question about whether you wrote a letter of recommendation for Miguel Estrada and you said you did not because he didn’t 

ask you to. Did anybody—either you or anybody on your behalf— 

ask him to write the letter of recommendation for you? 

Ms. KAGAN. I don’t know, Senator Coburn. 

Senator COBURN. Good question. 

Do you believe he should have been confirmed? 

Ms. KAGAN. I said that he is a great lawyer and a great human 

being, and I think I was asked whether he—— 

Senator COBURN. I’m asking you whether or not you believe he 

should have been confirmed. 

Ms. KAGAN. I wasn’t trying to avoid your question. I think he’d 

be a great judge. I think he—— 

280 

Senator COBURN. So your answer is yes? 

Ms. KAGAN. Yes. 

Senator COBURN. And if you were sitting up here you would have 

voted for him, is that correct? 

Ms. KAGAN. I would have. 

Senator COBURN. Thank you. 

Moving on—— 

Ms. KAGAN. I hope I would have, anyway. You know, who knows 

what it feels like to be one of you guys and to be subject to all the 

things that you guys are subject to. 

Senator COBURN. I want to give you a big secret. 

Ms. KAGAN. He should have been. 

Senator COBURN. It’s not all that much fun. 

[Laughter.] 

Senator COBURN. I have to reply to my colleague from Rhode Island. I gave a speech two or 3 weeks ago on the Senate floor, talking about hearings. We didn’t always have hearings. They are a 

relatively new phenomena in the history of our country. You know, 

we hit two areas of very distinct testimony about Judge Sotomayor 

which has demonstrated she did not live up to in the two most recent cases of the Supreme Court. 

So the question really comes, is confidence in our country today. 

We have problems with confidence in our economy, confidence in 

our government, confidence in Congress. I was wondering, Judge 

Kagan, is it important to you that the Supreme Court is seen in 

a light of confidence by the American people? Not us, but by the 

American people? 

Ms. KAGAN. Senator Coburn, it’s an interesting question because, 

of course, you want everybody—you want every—you want the Nation’s citizenry to have confidence in each institution of government. But on the other hand, I think it would be wrong for a court 

to decide an individual case by asking itself—— 

Senator COBURN. I’m not—I’m not implying that. I’m not saying 

you make a decision based on whether you’re going to have confidence. I’m saying, in general, is it important to you, if you are a 

justice, that the American people have confidence in the institution 

of the Supreme Court? 

Ms. KAGAN. I think that the welfare of the country is certainly 

best served if the American people have confidence in the Supreme 

Court, as is true of the other branches of government as well. 

Senator COBURN. Right. Right. 

Do you have any empathy with those of us that feel there’s a low 

confidence right now in the institutions of government? 

Ms. KAGAN. Senator Coburn, I—I think it would be better for the 

country if people had greater confidence than they do in all of the 

institutions of government, and that’s not to say—you know, it’s 

hard to know how these things work out over time. But—but, you 

know, it’s—the country is well served when people have confidence 

in the institutions that lead them. 

Senator COBURN. And would you agree with me that the glue 

that really binds us together is the glue that we, in fact, embrace 

the rule of law, that there’s blind justice, and that’s our goal? We’re 

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ing, is that we can make that available as best we can at every opportunity. That’s a glue that binds us together, is it not? 

Ms. KAGAN. I believe that thoroughly. When I gave my opening 

statement I said that the blessing of liberty, which is the phrase 

that our Constitution uses, the ‘‘blessings of liberty’’ are rooted in 

the rule of law. 

Senator COBURN. Yes. Well, I wonder if you’ve ever thought as 

I have. I’m 12 or 13 years older than you, but one of the things 

that I contemplate—— 

Ms. KAGAN. Maybe not after this hearing. 

Senator COBURN. No, I’m sure I’m older. 

[Laughter.] 

Senator COBURN. Actually, you’re doing quite well. Have you ever 

contemplated the idea of what your freedom was like 30 years ago 

and what it is today? 

Ms. KAGAN. How old was I 30 years ago? 

Senator COBURN. You were 20. 

Ms. KAGAN. I’m not sure I have ever contemplated that exact 

question. 

Senator COBURN. Well, I want to tell you, a lot of Americans 

have, and I certainly have. There is a marked change in this country from when I was 20 to now that I’m 62. And one of the problems with confidence, and the reason I asked you the question, is 

a lot of Americans are losing confidence because they’re losing freedom, they’re losing liberty. 

You’ll recall I asked you about the vegetable questions yesterday. 

That’s on the front of a lot of people’s mind. Not vegetables, health 

care. You knew where I was going. The very fact that the government is going to have the ability to take away, mandate what I 

must buy or must not buy, a very large loss of freedom. 

So my basic question comes back to you, is that important, the 

fact that confidence in all government institutions is at an all-time 

low in this country? And should we be concerned about it, and 

should we be trying to right the ship so that we restore that confidence? 

And I’m not talking of specific rulings, but you would agree that 

we ought to be trying to build that confidence and to reassure the 

American public that we actually get it, we understand the Constitution is the founding document. You’ve testified many times. I 

have some problems with some of what you’ve said, but that’s the 

bedrock instrument under which we have. But with a perceived 

loss of liberty, confidence is declining. 

On top of that, as we discussed yesterday, the Commerce Clause 

and this very expansive view of it as held by the Supreme Court 

which is counter to what our founders wrote, there’s nobody that— 

it started in 1937. It’s counter to what our founders wrote, and as 

it has expanded, liberty has declined. We’ve seen that rapidly increase. And it’s not just Republican or Democratic institutions—administrations that have overseen that, they’ve both been guilty. 

So I just wanted to—whether you’d ever contemplated that, because I think that can give you some insight into what America is 

concerned about. I don’t think judges just go to the bench and look 

at the Constitution. 

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I think they have to look at the fact that, how do we continue 

this wonderful and grand experiment, and that there are consequences to their actions, whether it be the consequences of the 

Senator from Rhode Island seeing a conspiracy, sinister, and people 

who think about and believe in the original intent believe in expanded freedom, not limiting freedom, and believe that what the 

founders had to say in the Federalist Papers and in interpreting 

the Constitution was of any import. So you’ve never contemplated 

any change in the freedom that you’ve experienced? 

Ms. KAGAN. Senator, I guess I’ll say this to what you said, which 

is that I believe that confidence in our institutions is terribly important. The confidence in the Supreme Court is terribly important. 

I do think that the job of a Supreme Court justice is to decide 

cases, and—and in deciding cases it’s not to think about big questions like restoring American confidence, that that’s more a question that belongs to the members of—of this body. I do think that 

the job of a Supreme Court justice is to listen very carefully to all 

arguments that are presented, and that means all arguments. 

That’s what I’ve pledged to do, and that’s what I will do if I’m—— 

Senator COBURN. You said earlier, to Senator Klobuchar this 

morning, that people get to make fundamental decisions about this 

country. You know what? A large percentage of people in America 

today don’t believe that. They don’t believe they’re getting to make 

decisions about this country. I mean, that is a serious problem, 

when 22 percent of the people in this country have confidence in 

Congress. That’s just speaking about Congress. I haven’t seen a 

poll on the Supreme Court. So the question—that’s the ideal, is we 

do want the people to be able to make the decisions. The fact is, 

they’re not today. There’s a disconnect. 

And it’s seen—that’s why we see the unrest, the tension that’s 

out there in the electorate, is that we’re not paying attention. 

That’s why I was so hard and insistent on original intent, because 

they’re like me, they’re non-lawyers. They read the Constitution 

and they see the words. They’re not sophisticated. They didn’t— 

most didn’t go to Harvard. And they say, you know, here’s the fact 

and here’s the statement, and the fact doesn’t match the statement. 

And I’m just saying, when it’s a sliver dividing line one way or 

the other, if the Supreme Court isn’t paying attention to that on 

an individual case when it can go either way, it ought to go for 

freedom, not more government, not bigger government, not an expanded Commerce Clause. It ought to go for individual freedom, individual liberty when it’s—when it’s on the narrow. I’m not talking 

about major cases that you can easily see plainly, because you’re 

going to have a lot of cases that are going to be tough for you to 

decide. You would agree with that, correct? It’s going to be difficult. 

Ms. KAGAN. Senator Coburn, I think that there are difficult cases 

that come to the court, no question. 

Senator COBURN. The—the other thing that you said to Senator 

Kaufman this morning—you were quoting Holmes again on the 

Commerce Clause—is that ‘‘the judges aren’t principal players in 

that game.’’ That was one of your quotes back to him. And I just 

have to relate to you again my concern, as I read the Constitution 

and I read what the founders wrote about the Commerce Clause. 

283 

I mean, they even said we were going to try to expand it and we 

were going to—I mean, they actually quoted that we would try to 

abuse what they meant, and they said that’s not what we meant, 

and yet we still have this tremendous expansion of the Federal 

Government, and with it a concomitant loss of individual freedom. 

And so I have to tell you, my hair has grayed a little bit the last 

2 days because of your position, or lack of emphasis, on original intent. I think it’s valuable. 

I have one other question in regard to the same thing. Senator 

Grassley quoted to you out of President Obama’s book about property rights and you gave an appropriate, good answer. The question 

I would have to you is, one of the concerns that Americans have 

today, I talked about, I think, our rule of law is what binds us together. No matter where you come from, what your wealth status 

is, the fact is, in this country like no other, you have a better shot 

at getting in a court of law in a fair outcome than anywhere in the 

world. 

But some of the things we’re doing, which the Supreme Court 

should weigh in on, and he talked about property rights, including 

abrogation of contract rights to bond holders in a government-managed takeover of an auto company, I mean, it’s a total violation of 

contract law, that bond holders don’t have a right. When they 

should be first, they’re placed last. 

When we ignore the idea that the problem with illegal immigration isn’t illegal immigration, it’s the very fact that somebody is 

violating a law, and then with amnesty toward that it is seen as 

tearing apart the glue that holds us together. Or the proposed recommendation of cram-down on mortgages, where Congress would 

pass a bill that said mortgage contracts out, and we’re going to tell 

you what your contract is. Do you see my concern on property 

rights in that regard, and also the fact that we’re kind of abandoning contract law, as well as tort law? And this is Congress. I’m 

not talking about the court. 

Ms. KAGAN. Senator Coburn, I think when you say it’s Congress, 

I think that’s right, that some of the things you just talked about 

are policy issues that are appropriately addressed, debated, argued 

about by Congress, that of course decisions get to the court in a different way. They get to the court in the form of individual cases 

and controversies. And the only way that a judge can legitimately 

approach and decide issues is through that forum, by looking at, 

you know, the actual circumstances of a case, the actual facts, the 

record, and trying to apply the—the law as best one can. 

So it might be that some of these bigger issues that take place 

in Congress about the appropriate direction of the country, you 

know, in some way inform or—or—or seen in individual cases or 

controversies, but that’s the only way that the court can look at 

them, not as these big, abstract questions, but just—— 

Senator COBURN. No, I’m not asking you to do that. I’m just asking—trying to get a feel for your appreciation of where we are 

today in this country. Some of my colleagues may disagree, but I’m 

traveling all over this country today and I see something I’ve never 

seen in my 62 years of life: an absolute fear that we’re losing it, 

that our institutions are failing us, that we’re ignoring the basic 

document that combines us and puts us together, and that with the 

284 

abandonment of that we’re liable to lose a whole lot more than just 

our short-term gains in income. It’s a real problem and it’s what— 

you know, the fact is, is today our kids’ future has been mortgaged 

and the confidence that we can get out of that is waning, and that 

we need to build that back up. So, you know, it’s just a plea for 

you to look at as you become a justice, if you do, that it’s not just 

a—the Constitution, it’s what was the Constitution intended to be? 

It’s my appeal for you to go back and look at the Federalist Papers 

and what are—I thought they had tremendous wisdom. They 

weren’t—they didn’t get it all right, but they sure got a lot of it 

right. The proof is in the pudding of where we are today. 

Let me move on. 

Ms. KAGAN. Senator Coburn, I—I said in my opening statement 

that I was only going to make a single pledge, and that was the 

pledge that I made in my opening statement. But I’ll make you another: I’ll reread the Federalist Papers. 

Senator COBURN. Thank you. I’d appreciate that. 

Ms. KAGAN. It’s a great document. 

Senator COBURN. America will appreciate that. 

Ms. KAGAN. It’s a great document. 

Senator COBURN. I want to go to the Second Amendment for a 

minute, if I can. One of the things that we found in some of the 

papers as we looked, and you know we looked at thousands of them 

and there’s no way you’re going to be able to recall all of them, although I’m sure you’ve looked at some of them. You chose a phrase, 

when talking about the Second Amendment, that you were not 

sympathetic when discussing someone’s claim that DC’s handgun 

ban violated their fundamental preexisting right to bear arms. And 

I have a very specific question for you: do you believe it is a fundamental preexisting right to have an arm to defend yourself? 

Ms. KAGAN. Senator Coburn, I very much appreciate how deeply 

important the right to bear arms is to millions and millions of 

Americans, and I accept Heller, which made clear that the Second 

Amendment conferred that right upon individuals and not simply 

collectively. 

Senator COBURN. I’m not asking you about your judicial—I’m 

asking you, Elena Kagan, do you personally believe there is a fundamental right in this area? Do you agree with Blackstone that the 

natural right of resistance and self-preservation, the right of having and using arms for self-preservation and defense? He didn’t say 

that was a constitutional right, he said that’s a natural right. And 

what I’m asking you is, do you agree with that? 

Ms. KAGAN. Senator Coburn, to be honest with you, I don’t have 

a view of what are natural rights, independent of the Constitution. 

And my job as a justice will be to enforce and defend the Constitution and other laws of the United States. 

Senator COBURN. So you wouldn’t embrace what the Declaration 

of Independence says, that we have ‘‘certain God-given inalienable 

rights’’ that aren’t given in the Constitution, that are ours and ours 

alone, and that the government doesn’t give those to us? 

Ms. KAGAN. Senator Coburn, I believe that the Constitution is an 

extraordinary document. And I’m not saying I do not believe that 

there are rights preexisting the Constitution and the laws, but my 

job as a justice is to enforce the Constitution and the laws. 

285 

Senator COBURN. Well, I understand that. I’m not talking about 

as a justice, I’m talking about Elena Kagan. What do you believe? 

Are there inalienable rights for us? Do you believe that? 

Ms. KAGAN. Senator Coburn, I think that the question of what 

I believe as to what people’s rights are outside the Constitution and 

the laws, that you should not want me to act in any way on the 

basis of such a belief, if I had one or—— 

Senator COBURN. I would want you to always act on the basis of 

the belief of what our Declaration of Independence says. 

Ms. KAGAN. I think you should want me to act on the basis of 

law and that is what I have upheld to do, if I’m fortunate enough 

to be concerned—to be confirmed, is to act on the basis of law, 

which is the Constitutions and the statutes of the United States. 

Senator COBURN. Going back to the Second Amendment, what we 

know with the two most recent cases is that they didn’t necessarily 

take away the precedent of Miller, does it? 

Ms. KAGAN. I’m sorry? 

Senator COBURN. They don’t necessarily take away the precedent 

of Miller. Ms. KAGAN. I’ve not read McDonald yet because of these hearings, but if I understand Heller correctly, Heller—Heller did not 

find it necessary to reverse Miller. Heller distinguished Miller as 

involving a different kind of weapon. 

Senator COBURN. So when you say—— 

Chairman LEAHY. The Senator’s time has expired. 

Senator COBURN. We are going to have another round? 

Chairman LEAHY. Those who have asked for it. I—— 

Senator COBURN. I’ve got several more questions, Mr. Chairman. 

Chairman LEAHY. Then we’ll give—well, with all due respect to 

the Senator, if they’re questions, fine. If they’re 10-, 15-minute 

speeches, your personal beliefs, which I know you hold strongly, 

are fine, but I’d prefer questions. I would be willing to give you another 5 minutes when your turn comes back. 

Senator Klobuchar. 

Senator KLOBUCHAR. All right. Thank you very much, Mr. Chairman. 

Hello, again. I wanted to read you a quote. I was thinking as I 

was listening to Senator Graham ask you about your role when you 

worked for the Clinton administration and you were answering 

about how your role was a specific one, and that it was different 

than you trumpeting your own personal beliefs. 

And this was a quote from another nominee at another one of 

these hearings, and this person said, ‘‘My view in preparing all the 

memoranda that people have been talking about was as a staff lawyer. I was promoting the views of the people for whom I worked.’’ 

In some instances those were consistent with my personal views, 

in other instances they may not be. In most instances, no one cared 

terribly much what my personal views were, they were to advance 

the views of the administration for which I worked. Do you think 

that’s a fair characterization of some of the work that you were 

doing when you were working for others in the administration? 

Ms. KAGAN. I think that is a fair characterization, Senator Klobuchar. I think that most White House assistants would—would 

sense the truth of that statement. 

286 

Senator KLOBUCHAR. And that was actually John Roberts, at his 

confirmation hearing, in response to some of the questions from my 

colleagues. I was really interested in listening to Senator Coburn— 

I wasn’t going to focus on this as much—when he was talking 

about the concept of freedom, which is integral to our country and 

to our Constitution, and he was actually asking you just now, back 

30 years ago, if you thought that we were more free. And I think 

it’s a very hard question to answer and not one that necessarily is 

one that you would expect in this hearing. 

But I was thinking back, and 30 years ago was 1980. In 1980, 

I just checked, the top songs were Blondie, ‘‘Call Me’’, Queen, ‘‘Another One Bites the Dust.’’ I remember, I was just starting to wear 

little bow ties and things like that. Then I was thinking about, 

were we really more free if you were a woman in 1980? Do you 

know, Solicitor General, how many women were on the U.S. Supreme Court in 1980? 

Ms. KAGAN. I guess, zero. 

Senator KLOBUCHAR. That would be correct. There were no 

women on the Supreme Court. Do you know how many women 

were sitting up here 30 years ago in 1980? 

Ms. KAGAN. It was very striking when Senator Feinstein said 

that she was one of two women. I thought, how amazing. So, how 

many? 

Senator KLOBUCHAR. There were no women on the Judiciary 

Committee. In fact, no women were on the Judiciary Committee 

until after the Anita Hill hearings in 1991. 

Do you know how many women were in the U.S. Senate in 1980, 

30 years ago? 

Ms. KAGAN. I’m stumped again. 

Senator KLOBUCHAR. No women were in the U.S. Senate. There 

had been women in the Senate before, and then in 1981 Senator 

Kassebaum joined the Senate. 

So as I think about that question, about if people were more free 

in 1980, I think it’s all in the eyes of the beholder. Certainly people 

had the potential freedom to get these jobs, but there were things 

that were impeding them from advancing to where I think that 

they wanted to go. 

And you actually gave a speech in 2005 on ‘‘Women in the Legal 

Profession: A Status Report.’’ And as I mentioned in my opening 

remarks, it’s clear that we have come a long way. And as you 

noted, when Harvard’s president—in this speech you noted that 

Harvard’s president was asked about the law school and how it 

was faring during World War II when so many of the people who 

would have been in the law school were off to war, and his response was that it wasn’t as bad as he expected. He said, ‘‘We have 

75 students and we haven’t had to admit any women.’’ 

But your speech also made some very serious points about the 

ways there are still gender disparities in the legal professions. We 

all know that more and more women are graduating from law 

school and from our professional schools, but women lawyers—to 

quote you, ‘‘Women lawyers are not assuming leadership roles in 

proportion to their numbers.’’ 

And as you note, that is ‘‘troubling not only for the women whose 

aspirations are being frustrated, but also for the society that is losVerDate Nov 24 2008 12:24 Aug 23, 2011 Jkt 067622 PO 00000 Frm 00296 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\67622.TXT SJUD1 PsN: CMORC
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ing their talents.’’ As dean, you clearly recognized the problems and 

disparities faced by women entering the legal profession. 

What did you do about it, and what do you think we should be 

doing about it? 

Ms. KAGAN. Well, there still are these disparities. And it’s interesting, because right now Harvard—and all schools—are about 50 

percent women. Sometimes it’s 48 and sometimes it’s 52. Some 

schools are actually a good deal more, 55. 

Senator KLOBUCHAR. And we know that over 50 percent of the 

people in this country are women, but there’s only 17 out of 107 

Senators that are women. Go on. 

Ms. KAGAN. Yes. And I do think that if you look all over the legal 

profession, not just in—in these governmental institutions but in— 

certainly in law firms, women don’t have the kind of—there’s just 

not the kind of diversity that I think anybody would want. And— 

and I think people are trying hard to make that diversity happen. 

I don’t think it’s a matter of bad faith in this regard, but I do think 

that there are structural obstacles, that there are ways in which 

it’s hard to balance work and family. It’s still harder for a woman 

than it is for a man, and that that often comes into play in the 

legal profession, as it does elsewhere. 

And if you—if you look at these opportunities for women, you 

know, I think probably the best thing that we could do as a society—but this isn’t the court’s role, this really is Congress’ role—is 

to try to enable women and men, but I think that they especially 

strike women, to—to manage those balances, the—the desire to 

have a fulfilling professional life, and also the desire to have a wonderful family life, to manage that balance better and to sort of create the structures that enable them to do so. 

And, you know, the work that I did in the Clinton White House, 

you’re quite right, it had—it has nothing to do with what I would 

do as a judge, and it also didn’t have much to do with my particular beliefs, except that I did believe in—I mean, I was proud 

to serve in the administration of President Clinton. And one of the 

things that I did do there was to work on some of these issues, to 

work on issues relating to child care, for example, and to—to try 

to help women and men with these very difficult issues and how 

to have wonderful professional lives, and also have wonderful family lives. 

Senator KLOBUCHAR. So do you think women are more free, just 

to end this discussion that was sparked by Senator Coburn’s going 

back to 1980? Do you think women are more free to pursue some 

of their career goals now than they were in 1980, given the numbers that we see? 

Ms. KAGAN. I think that there’s no question that women have 

greater opportunities now, although they could be made greater 

still. 

Senator KLOBUCHAR. Thank you. 

One last point I just wanted to make. There still continues to be 

a lot of focus on the recruiting—military recruiting. I think you 

made very clear that at no time were the recruiters banned from 

the Harvard campus, and that in fact I think you’ve mentioned— 

I don’t want to put words in your mouth—but the military recruitVerDate Nov 24 2008 12:24 Aug 23, 2011 Jkt 067622 PO 00000 Frm 00297 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\67622.TXT SJUD1 PsN: CMORC
288 

ing, the numbers went up, more people were recruited during the 

time you were there. Is that right? 

Ms. KAGAN. You know, I don’t want to make too much of this. 

Senator KLOBUCHAR. Yes. 

Ms. KAGAN. The numbers were basically stable. There was certainly no drop in the—in the particular year in question. There was 

actually a slight uptick, but it seems to me that if you look over 

the whole history, both before I was dean and after I was dean, 

what it suggests is that the difference between military recruitment being done under the kind of auspices of the Office of Career 

Services and being done under the auspices of the veterans organization just didn’t make a difference. 

Senator KLOBUCHAR. OK. And I just—you know, numbers are always interesting and important, but for me sometimes what people 

say that would work with someone like you is important, and I 

know that the Chairman put this letter in from a student, Robert 

Marrow, who had served in Iraq. 

In his own words, he went from fighting in the streets of 

Fallujah to studying in the hallowed halls of Harvard Law School, 

and he talked about—in this—in this op-ed that was in the Washington Post, he talked about how students pretty much treated him 

the same as other students, except for a few silly questions, and 

how most of the faculty members were fine but didn’t really acknowledge what had happened. 

But you had acknowledged his service, and he ended by saying 

this. He said, ‘‘She was decidedly against don’t ask/don’t tell, but 

that never affected her treatment of those who had served.’’ He 

says, ‘‘I am confident she is looking forward to the upcoming confirmation hearings as an opportunity to engage in some intellectual 

sparring with Members of Congress.’’ He says, ‘‘She treated the veterans at Harvard like VIPs and she was a fervent advocate of our 

veterans’ association.’’ 

And then he says, when he talks about the sparring with Members of Congress—and I’ll end with this—he says, ‘‘I would especially warn the Members of Congress to do their homework, as she 

has a reputation for annihilating the unprepared.’’ I think that’s a 

good ending. You’ve done a wonderful job. Thank you very much. 

Ms. KAGAN. Thank you, Senator Klobuchar. 

Chairman LEAHY. Thank you very much. 

Senator Sessions, did you want more time? I know Senator 

Coburn said he wants more time. 

Senator SESSIONS. Yes. 

Chairman LEAHY. Oh, I’m sorry. Senator Franken has. We’ll go 

to Senator Franken. Let’s just see how many more want more time. 

Senator Coburn has already said he wants another 5 minutes. You 

want how many? How much more time? You want more time. Senator Hatch. He may. Senator Grassley, you want another 5 minutes. Senator Cornyn. OK. Senator Franken, let’s go on because we 

have the secure room available at 5 to do the closed session. 

Senator Franken. 

Senator FRANKEN. Thank you, Mr. Chairman, General Kagan. 

I’m extremely concerned about the proposed merger between 

Comcast and NBC-Universal. Media consolation matters in a really 

fundamental way. I watch television for entertainment, but I also 

289 

get a lot of my information there too. So when the same company 

owns the programming and runs the pipes that bring us the programming, I think we have a problem. I’m interested in the ways 

that the Supreme Court affects the information that you and I get 

when we turn on the TV or read the newspaper. 

Sixty years ago, in United States v. Associated Press, the Supreme Court found that the First Amendment supported aggressive 

antitrust enforcement. Justice Black wrote, ‘‘The First Amendment, 

far from providing an argument against application of the Sherman 

Act, here provides powerful reasons to the contrary.’’ He then continues, ‘‘Freedom to publish is guaranteed by the Constitution, but 

freedom to combine to keep others from publishing is not.’’ 

When I read Black’s opinion, I think immediately of Comcast and 

NBC-Universal. Comcast is already extremely powerful. It’s the nation’s largest cable operator and also the largest home internet 

service provider. If it owned both the pipes and the programming, 

it would have the ultimate ability to keep others from publishing. 

It could just choose to favor its own programming over programming that other companies produce and withhold its own programming or charge more for it and drive up Minnesotans’ cable bills. 

To make matters worse to me, if Comcast and NBC merge, I 

worry that AT&T and Verizon are going to decide that, well, they 

have to buy ABC or CBS to compete, and that will mean there will 

be less independent programming, fewer voices, and a smaller marketplace of ideas. That’s a First Amendment problem, it’s also an 

antitrust problem. So General Kagan, here’s my first question: do 

you agree with Justice Black that freedom to publish is guaranteed 

by the Constitution but freedom to combine to keep others from 

publishing is not? 

Ms. KAGAN. Well, Senator Franken, I—I—first off, let me say 

that I think that that Comcast merger is under review by the Department of Justice at the current moment, so I want to steer well 

clear of that. 

Senator FRANKEN. I’m not asking you about it specifically. 

Ms. KAGAN. Yes. I mean, the—the—you know, the First Amendment does not provide a general defense, I think, to the antitrust 

laws. I’m not saying that in any particular cases First Amendment 

principles might not be relevant, but in general. The antitrust laws 

are the antitrust laws and they apply to all companies. 

Senator FRANKEN. OK. Let me talk about online. 

Ms. KAGAN. Talk about? 

Senator FRANKEN. Speech that’s online, over the internet and 

over the airways, or over cable. Many of the pipes that carry 

speech are in the hands of corporations, whether those corporations 

are cable companies or internet service providers. 

And I brought this up with then-Judge Sotomayor at last year’s 

hearing. I asked her about net neutrality, and she agreed that 

there is a First Amendment interest in ensuring that the internet 

stays open and accessible, protected from corporate interference. I’d 

like to ask you a variation on that question, now applying it to the 

merger context. Let me start with a pretty simple question: do you 

believe that the First Amendment helps to promote diverse public 

voices and opinions? 

290 

Ms. KAGAN. One of the purposes of the First Amendment is to 

ensure a public sphere in which all kinds of different opinions and 

views and thoughts can be expressed, and we can learn from all of 

them. 

Senator FRANKEN. And would you agree that the First Amendment governs actions or behavior by the federal government? 

Ms. KAGAN. Of course. The First Amendment governs actions 

and behaviors by the federal government, as well as by the states. 

Senator FRANKEN. OK. So the First Amendment helps to promote 

diverse speech and it governs governmental actions. In a merger 

case, the government is the one making the decision to allow two 

companies to merge. Given all of this, do you believe that the First 

Amendment could inform how the government looks at media antitrust cases? 

Ms. KAGAN. Senator Franken, I—I guess you could be thinking 

about that as a kind of policy matter, as to whether the authorities 

that are responsible for approving mergers and such ought to take 

into account so-called, you know, First Amendment values, not 

the—and—and I think I would defer to people who know a lot more 

about antitrust policy than I do on that. So, I guess that’s what I’d 

say. 

Senator FRANKEN. OK. Thank you. One last thing. 

A lot of people have been talking about judicial activism. I know 

that I certainly have, and I’m glad my friend Senator Graham 

brought this up. He said, can you find a judicial activist somewhere? And I can understand why you didn’t want to find one. I 

want to try to help. I always want to help my friend, Senator Graham. You said there are three things that judges hold to when 

they’re not activists. 

You said this: they respect precedent, they make narrow decisions, and they defer to the political branches, in other words, the 

legislature. There are a lot of recent cases that we’ve been talking 

about that instinctively strike me, and a lot of other people, as falling outside of these three guidelines. I think that in these cases the 

Supreme Court was legislating from the bench, which is being activist. 

In Circuit City, which I discussed at length during my first 

round, the Supreme Court explicitly ignored—explicitly ignored— 

Congress, gave absolutely no deference to Congress’ intent. This is 

on the specific provision protecting all workers from mandatory arbitration. The Court read that provision in such a strained manner 

that, even though the legislative history indicated a quite different 

intent, that provision would exclude almost all workers. In Gross, 

and in Rent-A-Center, and in Citizens United, the Court answered 

questions that it wasn’t asked. They didn’t rule narrowly. That was 

your second. 

In a Leegin case, the Court struck down a century-old precedent—that’s your third—that protected small business owners 

against vertical pricing fixing. So those are all three of your conditions: ignoring Congress, the intent; not ruling narrowly, and overturning precedent. So I think that the judges who decided these 

cases are judicial activists. Under the guidelines that you laid out 

to my friend Senator Graham, and that he seemed to like. 

291 

Now, let me distinguished this from Justice Thurgood Marshall. 

Justice Thurgood Marshall argued Brown v. Board of Education, as 

you and Senator Graham discussed, correct? 

Ms. KAGAN. Yes, he did. 

Senator FRANKEN. And if I lumped Brown v. Board of Education 

in with the list of cases I just mentioned, most people in the room 

would balk, don’t you think? 

Ms. KAGAN. Well, Brown v. Board of Education is the kind of 

iconic case that doesn’t belong on any list. 

Senator FRANKEN. Well, there’s a reason that—I mean, it is an 

exemplar of overturning a precedent that needed to be overturned, 

is that correct, would you say? 

Ms. KAGAN. Yes, sir, Mr. Franken. Yes. 

Senator FRANKEN. And that’s because there is a place for judicial 

review in our legal system. I’m trying to make the distinction between judicial activism and not judicial activism. There are certain 

situations where the Supreme Court really should subject the law 

to heightened scrutiny. 

This is what I think Justice Marshall was talking about when he 

said that the court should show ‘‘special solicitude for the despised 

and disadvantaged, the people who went unprotected by every 

other organ of government and who had no other champion.’’ Now, 

in the opening statements, you were criticized for admiring Justice 

Marshall for believing this, but I actually think that this belief, 

that Justice Marshall’s belief, is good, constitutional law. Are you 

familiar with Carolene Products, the Carolene Products case of 

1938? 

Ms. KAGAN. Yes, sir. 

Senator FRANKEN. Are you familiar with Footnote 4 of that decision? 

[Laughter.] 

Ms. KAGAN. Yes, sir. 

Senator FRANKEN. And you’re familiar with that because the 

footnote is really important, isn’t it? It’s often taught in constitutional law classes, whether they be in the first year or the second 

year or the third year, right? 

Ms. KAGAN. It is. 

Senator FRANKEN. Can you tell me what that footnote says and 

why it’s important? 

Ms. KAGAN. Senator Franken, it seems as though you have it in 

front of you and you’re going to do a better job of it than I am at 

this moment. 

Senator FRANKEN. You’re a mind reader. Footnote 4 basically 

says that when courts interpret the Constitution and try to figure 

out whether a law complies with the Constitution, the court should 

give special scrutiny to laws that violate a specific part of the Constitution, that restrict the political process, and that affect ‘‘religious, national, racial, and discrete and insular minorities’’ who 

have a really hard time getting help through the normal political 

process. Now, to me, ‘‘discrete and insular minorities’’ sounds a lot 

like the ‘‘despised and disadvantaged’’ that ‘‘go unprotected’’ and 

‘‘have no other champion.’’ Is it safe to say that Justice Marshall’s 

belief is consistent with Carolene Products? 

292 

Ms. KAGAN. Well, there’s no doubt, Senator Franken, that racial 

classifications are subject to very high scrutiny under the Equal 

Protection Clause, and have been so for a long time. And the Equal 

Protection Clause exists to ensure against discrimination on 

disfavored bases, very much included, and the archetypal example 

is race, and that it is not only appropriate, but obligatory on the 

courts to enforce that prohibition on discrimination on the basis of 

race. 

Senator FRANKEN. So Justice Marshall’s belief that was criticized 

in the opening statements is really very consistent with established 

constitutional law, isn’t it? 

Ms. KAGAN. Well, Senator Franken, I will say that when I wrote 

those words I was not speaking of Footnote 4 and Carolene Products. I was speaking instead of—of what I’ve talked about several 

times at this hearing, which is Justice Marshall’s deep belief in ensuring a level playing field for all Americans and ensuring that 

each and every American, regardless of wealth or power or privilege, that each and every American gets fairly heard before the 

court. And—and when I—when I wrote that tribute to Justice Marshall and wrote those words, that was very much what I had in 

mind. 

Senator FRANKEN. So I’d like to leave you with this thought, 

General Kagan. Justice Thurgood Marshall is one of the greatest 

lawyers and jurists in American history. This is the man who won 

Brown v. Board of Education, who helped end segregation in our 

Nation’s schools and opened the doors to black Americans. This is 

the man who proved that separate but equal was inherently unequal. Not only that, but he served with distinction as Solicitor 

General, as a judge on the Second Circuit, and as the first AfricanAmerican Supreme Court justice. This is a giant of the American 

legal system. 

And I think what I really want to say is that Justice Marshall 

wasn’t some activist radical, rather, his views were very much in 

the mainstream and in line with constitutional jurisprudence since 

1938, since Carolene, and before that. And I just think that we 

need to be aware of that and to remember that. 

Ms. KAGAN. Senator Franken, I’ll just say what I’ve said on 

many occasions in the past, which is that Justice Marshall is a 

hero of American law and a hero of mine. 

Senator FRANKEN. And of mine. Thank you. Thank you, General 

Kagan. 

Thank you, Mr. Chairman. 

Senator FRANKEN. I’m going to yield to Senator Sessions, but I’ve 

already been told that Senator Klobuchar wanted to correct 

one—— 

Senator KLOBUCHAR. Yes. We have learned from many emails to 

our office that in fact, in 1980, Solicitor General Kagan, Nancy 

Kassebaum was already serving in the Senate, so there was in fact 

one woman Senator. There were no women on the Judiciary Committee, and I was correct: ‘‘Call Me’’ from Blondie was the top song. 

[Laughter.] 

Senator KLOBUCHAR. So I wanted to make that. And I assume it 

doesn’t change any of your answers. 

293 

Ms. KAGAN. Isn’t email a wonderful thing? You can learn you’re 

wrong right away. 

[Laughter.] 

Senator KLOBUCHAR. It is nice. Thank you. 

Chairman LEAHY. Trust me, I do. 

[Laughter.] 

Chairman LEAHY. I was just looking at some of the ones that 

have come in since this started. 

Senator Specter, you just wanted to put a letter in? 

Senator SPECTER. Yes, Mr. Chairman. Following Senator 

Franken’s questioning, I ask consent that a letter dated May 11, 

2010 from Senator Casey and me to the Chairman and all the 

members of the Federal Communications Commission regarding 

the NBC-Comcast merger be placed in the record. 

Chairman LEAHY. Without objection, so ordered. 

Senator SPECTER. I thank the Chair. 

[The information appears as a submission for the record.] 

Chairman LEAHY. We will go to Senator Sessions, then Senator 

Hatch if he so wishes, and then Senator—let me see who else? Senator Grassley, did you want more? And, Senator Coburn, you want 

more. 

Senator Sessions. 

Senator SESSIONS. We are doing our best to be cooperative. 

Chairman LEAHY. I still withheld most of my time from my second round. 

Senator SESSIONS. You are very generous. Well, we would normally be going into tomorrow with these hearings. Because of the 

extraordinary events of the week, Mr. Chairman, I am glad to work 

with you to try to finish up tonight, and we will do our best to do 

that. 

Chairman LEAHY. I would note again for the record Senator Sessions has been extraordinarily cooperative in trying to do that. 

Senator SESSIONS. But I know you know that this is not a little 

matter. This is a very, very significant matter. A nominee could 

serve, if she served as long as Justice Stevens, 34 years—38 years 

on the bench, and we wish you a productive service if that occurs. 

I would say at to what kind of agenda you should bring to bear, 

I think the oath sets a good agenda. The oath is that you would 

impartially do your duty with equal right to the poor and the rich, 

without respect to persons under the Constitution and laws of the 

United States. And I guess I would ask you a question. One columnist I saw said, ‘‘Would you do so without any mental reservation or purpose of evasion? ’’ 

Ms. KAGAN. Senator Sessions, I agree with you that that is exactly what I should be doing if I am fortunate enough to be confirmed, and I would do so without any mental reservation or purpose of evasion. 

Senator SESSIONS. All right. 

Ms. KAGAN. It feels a little bit odd to be taking what seems like 

that oath at this table. 

Senator SESSIONS. A bit early. But it is not an exact copy. 

You talked about Miguel Estrada. I so admired him and still do, 

and I think without a doubt spoke more on the floor in support of 

his confirmation than probably any other Senator. One of the big 

294 

issues that occurred was whether or not the internal memoranda 

of the Department of Justice should have been produced so that 

people in the Senate, mainly my Democratic colleagues who filibustered his nomination and kept it from ever coming up to a vote, 

which he would have been confirmed had that occurred. Their objection in large part seemed to be that those internal memoranda 

should have been produced, whereas every living Attorney General—every living former Solicitor General wrote that those documents should not be produced. 

So I guess I would ask you, Solicitor General, do you think now 

that you should produce those documents? Or do you think the better policy is the one the Bush administration pursued, which was 

not to go down the road of producing such documents? 

Ms. KAGAN. Senator Sessions, before you said it, I was just going 

to say that, in fact, every living Solicitor General did say that those 

documents ought not to be produced, and they said that because of 

an understanding about how the office works and how important 

confidentiality within the office is to effective decision-making. And 

I think that that’s absolutely right, and it is one of the reasons why 

I have not wanted to talk about any internal deliberations that 

have occurred within the office, and I certainly think that it was 

the right view then that those documents from within the office 

should not have been produced. 

Senator SESSIONS. Well, I would say I have been interested in 

what might be in those internal documents you were involved in 

in the Solicitor General’s office, but have refrained from asking for 

it. But based on that answer, I assume that you would advise other 

members of the Senate that in the future they should not be demanding such documents of a nominee, absent some special, discrete problem that may justify it in an unusual case. 

Ms. KAGAN. I do think that the Office of Solicitor General is a 

very special kind of office where candor and internal really truly 

thorough deliberation is the norm and that it would very much inhibit that kind of appropriate deliberation about legal questions if 

documents had the potential to be made public generally in that 

way. 

Senator SESSIONS. Thank you. United States Code 983, the Solomon Amendment, I believe the last of the four amendments that 

we passed to try to make sure that our law schools could not continue to get around it some way and find a loophole, says this: that 

the military must be given access ‘‘that is at least equal to the access to campus and to students that is provided to any other employer.’’ 

My question to you is: During the entire time you were dean, did 

you give the military at least equal access to any other employer? 

Ms. KAGAN. Senator Sessions, our consistent view was that we 

were in compliance with the Solomon Amendment. Of course, the 

Department of Defense determined otherwise, and when the Department of Defense determined otherwise, we complied with what 

the Department of Defense asked of us. 

Senator SESSIONS. I do not think that answered the question. I 

do not think there is any doubt that they were not given equal access to the campus. It was based on a decision you made to reverse 

295 

previous Harvard policy, and I just remain troubled that we cannot 

seem to get in sync on that issue. It is a big problem for me. 

My colleague asked about judicial activism. I would say that 

Judge Barak’s statement that Lindsey Graham read is a classic. He 

says, ‘‘The statute remains the same as it was, but its meaning 

changes because the court has given it a new meaning that suits 

new social needs.’’ 

I believe an activist—and I think I am quoting Senator Hatch, 

although he would not give me credit for it—he would not take 

credit for it. My view of an activist judge is one who allows their 

personal, political, ideological, religious or other views to cause 

them to not be faithful to the law. And when Justice—I know you 

are rushing me, Mr. Chairman. 

Chairman LEAHY. I am not rushing you. 

Senator SESSIONS. You are breaking my little train of thought. 

It is so easy. My brain is weak. But Justice—— 

Chairman LEAHY. It probably is the third or fourth—— 

Senator SESSIONS—[continuing]. Marshall—well, I guess Solicitor 

General Marshall and the courts who ruled against separate but 

equal, I do believe in my mind, by my definition, that was a decision consistent with the plain words of the Constitution. When you 

said a child could not go to this school because of the color of their 

skin and another one must go to that school simply because of the 

color of their skin, that is not equal protection. So I think they just 

simply returned to the plain words of the document, and there was 

evidence that the people who drafted it had that in mind. But I 

think originalism has its limits. Each theory has its limits. But 

fundamentally I think it is not activism to reverse a bad decision, 

and the Court should do that, and the courts who failed to set aside 

bad decisions are not in harmony with the law or are failing in 

their responsibilities. 

Mr. Chairman, one more. 

I did not quite understand. I thought that Harvard had abandoned any constitutional law course requirement. You and Senator 

Grassley I think talked about first-year law school requirements of 

constitutional law. Is there a requirement at Harvard in any year 

that they take constitutional law? 

Ms. KAGAN. Senator, at least as far back as when I was a student, there has actually not been a requirement that constitutional 

law is taken, but almost all students take a very great deal of constitutional law. 

Senator SESSIONS. But international law was required recently? 

A course in international law was required recently? 

Ms. KAGAN. When we reviewed our first-year curriculum, we determined really because the constitutional law professors of the 

school wanted to keep constitutional law in the second and third 

year where it could be taught more in-depth and more broadly 

where students would have really greater time to study it, the constitutional law professors thought that it would not be a good idea 

to put it in the first year. Some constitutional law actually we did 

put into the first year in a course on the governmental process, and 

particularly that deals with separation of powers law. 

In general—and this has been true for a long time—Harvard has 

taught constitutional law in the second and third year where there 

296 

are not requirements, but the vast majority of students take a very 

great deal of constitutional law. 

Senator SESSIONS. Well, yesterday you indicated that the Court 

could consider foreign court opinions as they could ‘‘learn about 

how other people might approach’’ and think about approaching 

legal issues. And you said, ‘‘I guess I am in favor of good ideas coming from wherever you can get them.’’ I think some of the Justices 

on the Court have used that phrase. But ideas sound like policy to 

me. It does not sound like authority to me. 

I guess I want to ask you, there is a raging debate on the Court 

and within the legal community over the propriety of citing foreign 

law in opinions as providing guidance. Justice Stevens in the 

McDonald firearms case Monday dissented and cited ‘‘the experience of other advanced democracies’’ regarding their gun restrictions. 

We have got a constitutional amendment that says you have the 

right to keep and bear arms. He wants to consider the experience 

of other advanced countries. 

All right. This is my last question. 

He went on to say, ‘‘While the American perspective must always 

be our focus, it is silly, indeed arrogant, to think we have nothing 

to learn about liberty from the billions of people who live beyond 

our borders.’’ And Justice Scalia noted with some sarcasm that, ‘‘No 

determination of what rights the Constitution of the United States 

covers would be complete, of course, without a survey of what other 

countries do.’’ In other words, he was saying he thought this was 

a very unwise policy. 

So I would ask you on whose side do you come down, Justice 

Scalia’s or Justice Stevens’? 

Ms. KAGAN. Well, Senator Sessions, I have not read the McDonald case so I have not read what either Justice Scalia or Justice 

Stevens has to say about that question. It is interesting that you 

ask this with respect to the Second Amendment, because I think 

that I was asked about this question during my SG confirmation, 

was given a written question about whether I thought that the use 

of foreign law was appropriate in the context of the Second Amendment. And I hope I am remembering this correctly that I said it 

was not, that the Second Amendment question as defined by Heller 

was so peculiar to our own constitutional history and heritage that, 

you know, foreign law did not have any relevance. 

So I hope I am paraphrasing that accurately, but I know I wrote 

about it to the Senate previously. 

Senator SESSIONS. Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. 

I will also put in the record—you had mentioned Solicitors General. We have a letter directed to Senator Sessions and myself 

signed by Solicitors General in the administrations of Presidents 

Ronald Reagan, George H.W. Bush, William Clinton, and George 

W. Bush, all supporting you, Ms. Kagan, to be on the Supreme 

Court. It is signed by Charles Fried, Kenneth Starr, Drew Days, 

Walter Dellinger, Seth Waxman, Ted Olson, Paul Clement, Gregory 

Garre, all supportive. And I will put that in the record. 

[The letter appears as a submission for the record.] 

Chairman LEAHY. Senator Grassley, you are recognized. 

297 

Senator GRASSLEY. If you answer the questions briefly, I will not 

need the 13 minutes and 10 seconds that Senator Sessions just 

took. 

Ms. KAGAN. You were counting, huh? 

Senator GRASSLEY. Here is where we are. I want to make one 

statement because I did not want you to have the last word on 

Baker and settled law, so I would make this clarification, and you 

do not need to comment. 

My question on the precedential value of Baker was whether 

Baker is binding as settled law on lower courts until the Supreme 

Court revisits the issue. The Supreme Court has stated, ‘‘Lower 

courts are bound by summary decisions by this Court ‘until such 

time as the Court informs (them) that (they) are not.’ ’’ So until the 

Supreme Court speaks directly in response to the issue in Baker, it seems that the Court precedent supports the position that Baker 

is settled law and should control in the lower courts. 

Ms. KAGAN. Senator Grassley, may I? 

Senator GRASSLEY. You may. 

Ms. KAGAN. This is not an area which I know a great deal about, 

so I thought that I was stating, you know, what Senator Leahy 

called hornbook law on this question. But it is not an area that I 

have studied in any depth, and I look forward to being further informed about it. 

Senator GRASSLEY. Thank you. I want to go to the fact that in 

1996 Congress passed and President Clinton signed into the law 

the Defense of Marriage Act. That law defines marriage for purposes of Federal law as between one man and one woman, and it 

also provides that no State or territory shall be required to give effect to another State that recognizes same-sex marriages. Both provisions have been challenged as unconstitutional, and Federal 

courts have upheld both. 

Do you agree with Federal courts which have held that DOMA 

does not violate the full faith and credit clause and is an appropriate exercise of Congress’ power to regulate conflicts between the 

laws of different States? 

Ms. KAGAN. Senator Grassley, I do think that that is an issue 

that might come before the Court, the constitutionality of DOMA, 

so it would not be appropriate for me to comment on it. 

Senator GRASSLEY. OK. Let me move on then, a little bit along 

the same line but a different approach, whether or not you played 

any role in approving or reviewing the Reply Memorandum in Support of Defendant United States’ Motion to Dismiss in the case of 

Smelt v. United States? If so, could you please explain why the Justice Department abandoned the argument that traditional marriage rationally served the legitimate interest of promoting the 

raising of children by both parents, which Congress could reasonably conclude is the optimal environment for raising children? 

Ms. KAGAN. Senator Grassley, this was not a case in which I was 

the decisionmaker. It was a case in district court, and the Solicitor 

General’s decision-making responsibilities take over at the appellate court level. It was a case in which members of my office and 

I reviewed some briefs and participated in some discussions. And 

I think I would need to say with respect to those discussions that, 

you know, I cannot reveal any kind of internal deliberations of the 

298 

Department of Justice, but just to say that, in general, lawyers do 

make a raft of decisions, strategic and otherwise, about how best 

to present cases. And the Department of Justice is right now defending the DOMA legislation in the courts in that case and in a 

couple of others. 

Senator GRASSLEY. Do you believe that it was necessary to note 

in the Reply Memorandum that ‘‘the Administration does not support DOMA as a matter of policy, believes that it is discriminatory, 

and supports its repeal’’ ? Do you believe such language is consistent with your promise to vigorously defend the statutes of our 

country? 

Ms. KAGAN. Senator Grassley, I am reticent to talk about particular decisions made with respect to that brief, not only because 

I was not the decisionmaker on that brief, but because the Department of Justice is currently litigating those cases, and I do not 

want to do anything that interferes or undermines or, you know, 

in any way gets in the way of the defense the Department of Justice is making on those cases. 

Senator GRASSLEY. OK. Well, you took an oath to defend the 

laws of the United States, including DOMA. Would you agree that 

calling a law ‘‘discriminatory’’ and advocating for its repeal is no 

defense? 

Ms. KAGAN. Senator Grassley, I do believe that the Department 

of Justice is vigorously defending DOMA in that case and in other 

cases. 

Senator GRASSLEY. OK. On another matter, in Griswold Justice 

William Douglas stated—— 

Chairman LEAHY. How much more time would the Senator like? 

Senator GRASSLEY. I want less than what Senator Sessions had. 

Chairman LEAHY. Senator Sessions, of course, is the Ranking 

Member and by tradition—— 

Senator GRASSLEY. Oh. Well, then can I have 2 more minutes? 

Senator SESSIONS. Mr. Chairman, I think he can—— 

Senator GRASSLEY. Can I have—— 

Senator SESSIONS. You can give him—— 

Chairman LEAHY. He asked for 2 more minutes, and I am going 

to give it to him. But I just want to know because we have to plan 

for the—— 

Senator GRASSLEY. This will be the last question. 

Chairman LEAHY—[continuing]. Security people on the closed 

room. 

Senator SESSIONS. And we can be so pleased that he can be 

Ranking Member next year. 

[Laughter.] 

Senator SESSIONS. You should be nice. 

Chairman LEAHY. I would miss you so much, I do not know if 

I could handle that. 

Go ahead, Senator Grassley. 

Senator GRASSLEY. Do not worry. 

In Griswold, Justice William Douglas stated that, although the 

Bill of Rights did not explicitly mention the right to privacy, it 

could be found in the ‘‘penumbras’’ and ‘‘emanations’’ of the Constitution. 

299 

A two-part question. Do you agree with Justice Douglas that 

there are certain rights that are not explicitly stated in our Constitution that can be found by ‘‘reading between the lines’’ ? Is it 

appropriate for a judge to go searching for ‘‘penumbras’’ and ‘‘emanations’’ in the Constitution? 

Ms. KAGAN. I think, Senator Grassley, that rights have to have 

textual bases, and so I would not subscribe to the Justice Douglas 

approach on penumbras and emanations. 

I do, as I think every nominee has, support the result in Griswold. I think that the way other Justices have understood that result as properly justified is through the Liberty Clause of the 14th 

Amendment. 

Senator GRASSLEY. Well, then I think from your answer, which 

I like, that you do not—you would not say that there are a lot of 

other rights that are implicitly written into the Constitution then? 

Ms. KAGAN. I do believe that rights need a textual basis in the 

community, and they might have that basis in general clauses, but 

there needs to be a textual basis in the Constitution for any right. 

Senator GRASSLEY. OK. Then the last point would be a continuation of this, and I think you probably answered it, but let me tell 

you why I ask these questions, because of somebody called Justice 

Souter. Some judges found ways to make law through ‘‘penumbras’’ 

in the Constitution. Justice Souter in his confirmation hearing told 

me that the courts fill ‘‘vacuums’’ in the law. Justice Sotomayor has 

said that the court of appeals is ‘‘where policy is made.’’ If you are 

confirmed, will you try to find a creative way to ‘‘make policy’’ from 

the bench based upon ‘‘penumbras’’ or Souter’s ‘‘vacuums’’ ? 

Ms. KAGAN. Senator Grassley, I have tried during the course of 

this day and a half to state how I would approach constitutional 

interpretation, that where the text governs, the text governs; where 

more work needs to be done, what judges ought to look to is the 

structure of the Constitution, the history of the Constitution, and 

the precedent relating to the Constitution. And that is what I 

would do in any case. It is law all the way down, I think is what 

I said yesterday, and that is what I believe. It is not personal 

views. It is not moral views. It is not political views. It is law all 

the way down. 

Senator GRASSLEY. I gave you an opportunity to sum up 2 days 

of what you have been trying to tell us. Thank you. 

I was 5 minutes short of Senator Sessions. 

Chairman LEAHY. I found when the Republicans were in control 

and I was ranking members, they always gave me a little bit extra 

and Senator Sessions has never been cutoff. Senator Graham, did 

you have anything? 

Senator GRAHAM. No. 

Chairman LEAHY. Senator Coburn, how much time would you 

like? 

Senator COBURN. Oh, less than 10 minutes. 

Chairman LEAHY. You are recognized. Go ahead. 

Senator COBURN. Thank you. 

Chairman LEAHY. And at that point, just so people know on the 

schedule, when Senator Coburn finishes, you have a short 10- 

minute statement you want to make, I will too and we will break 

for about 15 minutes and then reconvene in the regular room, 

300 

right? The regular room which has been secured by the people who 

do that. I have only been here for 36 years, I am still learning my 

way around. Senator Coburn, go ahead. 

Senator COBURN. Thank you, Mr. Chairman. Again, thank you 

for your testimony and your answers to our questions. I know it 

hasn’t been the most pleasant experience in the world, but this is 

my fourth one and I think this has been one of the best. 

Ms. KAGAN. Senator Coburn, I want to say that I think it has 

been terrific. Everybody has been very fair and very considerate 

and I hope you found it informative. I found it somewhat wearying 

but actually a great moment in my life. 

Senator COBURN. Just a couple of questions and hopefully I won’t 

use all 10 minutes. 

I was interested in your discussion about the economic versus 

non-economic test on the commerce clause and just to put your feelings on whether or not that test supercedes original intent. 

Ms. KAGAN. Well, Senator Coburn, I think this goes back to some 

of the discussion that we were having yesterday. As I understand 

the court’s commerce clause law, that test is the governing test 

which is entitled to the weight the precedent usually has. 

That means that it’s not enough to say that the decisions are 

wrong and it doesn’t matter why the decisions are wrong. It doesn’t 

matter whether the decisions are wrong because they are contrary 

to original intent or for some other reason why people might think 

that decisions are wrong. 

The point of precedent is to constrain judges and the point of 

precedent is to remind judges that they don’t know everything and 

that they should rely on sort of the wisdom of the courts and of 

other judges over time. I think that, and the point of precedent is 

to provide stability and reliability in the law. 

I think that those values govern even though somebody might 

come in and say a decision is wrong. That is true if the person says 

the decision is wrong because it violates the text or it violates the 

history, the original history or it violates anything else that there 

is, there needs to be a kind of high bar for reversing precedent. 

Senator COBURN. But that does not preclude that precedent can 

be reversed. 

Ms. KAGAN. It can be reversed, and we have talked on various 

occasions about when it can be reversed. In particular if the precedent is unworkable or if the precedent’s doctrinal support has eroded or if the precedent no longer fits the actual factual empirical circumstances that exist in the country, there are occasions in which 

precedent can be reversed. 

Senator COBURN. Let me go onto another section if I might. The 

coercion test that you discussed. Do you find it ironic that the coercion test applied to graduating seniors in high school who are old 

enough to go and die for this country but the coercion test says 

they are not old enough to make a decision about something they 

hear? Is that ironic to you? 

Ms. KAGAN. Senator Coburn, I have tried hard not to characterize particular decisions, not to grade them, not to give them the 

thumbs up or the thumbs down. 

Senator COBURN. You would admit there is some irony in that? 

301 

Ms. KAGAN. Senator Coburn, when I talked about this with, I forget who I talked to about it. 

Senator COBURN. I do, too. I forgot who you talked to about it 

as well. 

Ms. KAGAN. I did talk about how one of the, I think an attribute 

of the coercion test is that four different people can look at a practice and have four different views as to whether coercion has in 

fact taken place. 

I think everybody would say that coercion, adults are different 

than children. I think the question of sort of who counts as a child 

and who counts as an adult is one of those matters that I think 

the coercion test is, notably presents that different people can look 

at the same set of facts and reach different conclusions as to 

whether the government in fact has engaged in coercive activity. 

Senator COBURN. Thank you. I have two final questions. One, 

was there at any time, and I’m not asking what you expressed or 

anything else, was there at any time you were asked in your 

present position to express an opinion on the merits of the health 

care bill? 

Ms. KAGAN. There was not. 

Senator COBURN. Thank you. And final question. It is your testimony before this Committee that you had no efforts at all to influence the decision by ACOG in terms of what they ultimately put 

out on partial birth abortion? 

Ms. KAGAN. My only dealings with ACOG were about talking 

with them about how to ensure that their statement expresses 

their views. I was a staffer with no medical knowledge. I would not 

have presumed to nor would ACOG have thought it was relevant 

for me to. 

Senator COBURN. But you were part or at least you acknowledge 

being a part of the people who developed the four options for President Clinton. 

Ms. KAGAN. I definitely participated in discussion of this issue. 

Senator COBURN. And you referenced that that was our memo, 

correct? In other memos to the President. 

Ms. KAGAN. Yes. I mean, I definitely participated as an aide in 

trying to implement the President’s views on this issue. 

Senator COBURN. And you were concerned with their original 

language, that is true? 

Ms. KAGAN. I was—— 

Senator COBURN. ACOG’s original language. You were concerned 

with. It was problematic. 

Ms. KAGAN. I was concerned that that language did not accurately reflect what ACOG’s views were and what they had expressed to us. 

Senator COBURN. Their original language, being somebody that 

has delivered thousands of—where it was absolutely accurate. 

Their second language was not accurate. I would think that the 

vast majority of those who have been through my experience would 

agree with that. 

I have no other questions for you. I thank you for the spirit in 

which you answered the questions here today. As was said in the 

paper today, you kind of light up a room. I agree with that. Congratulations on your nomination. 

302 

Ms. KAGAN. Thank you so much, Senator Coburn. 

Chairman LEAHY. Thank you. 

Senator COBURN. And that’s 3 minutes early, Mr. Chairman. 

Chairman LEAHY. It’s what? 

Senator COBURN. Three minutes early. 

Chairman LEAHY. God bless you. I will put it on your positive—— 

Senator COBURN. I know the Chairman remembers when he was 

a lowly low Ranking Member of the Judiciary Committee some 35 

years ago. 

Chairman LEAHY. I have so many stories, I’m not going to do it 

with the television. I will tell you a couple of them afterwards. I 

will put the extra 3 minutes in your ledger. Now it is very full. 

Senator COBURN. Thank you. 

Chairman LEAHY. Senator Session, you want to make a short 

posing, I understand? 

Senator SESSIONS. I would be pleased to. First I would offer a 

number of letters for the record from Colonel Gonzolo Bagara who 

would oppose the nomination, Judicial Action Group, the National 

Right to Life Committee, Military Families United, Southern Baptist Ethics and Religious Liberty Commission, American Association of Christian Schools and Center for Military Readiness who expressed opposition to the nominee. 

We talked about a lot of important issues today. The interstate 

commerce issue, several of our Committee members asked about it. 

Lopez, Morrison, a 5–4 decision. Foreign law, that’s a ranging debate within our country today. 

I do not see how anyone can justify a citation to actions outside 

the country as any authority whatsoever to define what Americans 

have done. Americans believe that you only govern with the consent of the governed and we have not consented to be governed by 

Europe or any other advanced nation. 

People are concerned about abortion issues, they are concerned 

about national security. We’ve got raging debates in our conference 

over that. I think this nominee in private life wrote a very intemperate letter about some of those issues that causes me concern. 

The ownership of firearms. We’ve got two seminal cases 5–4 that 

had it been one vote switched within 5–4, completely eviscerating 

the right to keep and bear arms, allowing any city or any county 

in America, any state to completely deny the people of the right to 

keep and bear arms. 

People are worried about that. Senator Coburn has been, some 

of the things he’s saying that I’m hearing as I’m going around my 

state, people are concerned and are asking the question is there 

any limit on what you do in Washington? Does anybody care? We 

do. We are tired of this. We are worried about this and I think 

their worries are legitimate. I don’t think it’s extreme. 

We are talking about activism. Justice Barak says, you know, the 

words don’t change but you give them new meaning that suits new 

social needs. Well, I know you said he’s your hero and I’m sure 

you’re correct that you don’t adopt all of his philosophies, but many 

judges in the court system in America today are not too far from 

that I believe, and I believe some of those judges are not fulfilling 

303 

their oath. I’m not going to vote for a judge I do not believe is committed to that. 

I am worried about the idea of legal progressivism. I think that’s 

a pernicious philosophy. A liberal ideal has always, I have had, I 

do admire the liberal ideal in the American tradition. But this progressive movement I think is particularly hostile to playing the 

law. I’m not pleased with it. 

The President, I think as Senator McCain said is a legal progressive, or Mr. Greg Craig, his counsels have said and indicated that 

you are, Ms. Kagan. So I worry about that. 

And I would just say with regard to the discussion about Harvard and the military, I am concerned about the way you overall 

described what happened, suggesting that it really wasn’t that big 

a deal and that you always wanted to help the military. 

I was involved in writing the Solomon Amendment, several different versions of it. It took four times to get it so the deans around 

the country couldn’t figure a way to get around it. It was a national 

debate, it was very intense at Harvard and I do believe that your 

actions, I think your actions there were not consistent with the 

law. 

So a nominee is a person of skill and intelligence who has a diverse background. I do think that this Senate has a very serious 

responsibility at this time and people are deeply worried about our 

Constitution and is it being followed. They want to know that the 

next nominee to our Supreme Court will be faithful to that Constitution even if they don’t like it. 

Some of the things you have said today have indicated that, but 

a combination of record and statements leave me uneasy. So I look 

forward to studying that record and trying to fairly and objectively 

make my evaluation of whether I should vote for you for Supreme 

Court of the United States. Thank you, Mr. Chairman. 

Chairman LEAHY. Solicitor General Kagan, the good news is that 

this is in all likelihood the last time you will ever have to be in 

a public hearing before a Senate Judiciary Committee. 

Some of us have probably enjoyed it more than you have. I have 

appreciated your, not only your intellect but your good humor 

throughout. 

I said to somebody, see, we do agree on something. I said to 

somebody earlier today who mentioned I have been here throughout all the hearings, I said it was like going back to my favorite 

courses in law school. 

You have patiently listened to our statements, you have answered our questions over the last 3 days, yesterday you testified 

10 hours, today you have been here since 9 this morning. Each 

Senator both sides participated in a 30-minute opening round. 

Some took the opportunity for another 20-minute round and some 

have gone beyond that to over an hour. 

Of course I mention for the public watching, this is in addition 

to our other interactions with you. All of us have met with you privately. I know speaking from my views, when I met with you you 

answered openly and candidly every single question I asked you. 

I appreciate that you engaged with Senators, you have answered 

their questions more fully than many recent nominees. Senators on 

304 

both sides of the aisle have liked and agreed with some of your answers and they have differed with others. 

That, based on my experience, is not unusual in hearings. Based 

on my review of your record, now your answers this week I expected that you and I would not always agree. I do not agree with 

every decision that Justice Stevens has written or Justice O’Connor 

or Justice Souter, but I have such great respect for their judgment. 

I respect their judicial independence and I have never once regretted my vote for each of these Justices. 

I mentioned each were nominated by a Republican President. I 

voted for each of them. I have never regretted those votes for each 

of them. I hope the Senators and the American people have a better sense of the kind of Justice you would be. 

You demonstrated an impressive, I’d say an encyclopedic knowledge of the law and we can see why so many of your students, 

many of whom I have met here during these hearings consider you 

a wonderful teacher of the law. 

I told my wife last night, I really wish I could be back in law 

school taking a course with you. You spoke about your approach to 

the law, you consistently spoke of judicial restraint and your respect for our Democratic institutions, your commitment to the constitution and the rule of law. 

You demonstrated a traditional view about deference to Congress 

and judicial precedent, a view that conservatives used to embrace 

and fortunately few still do. I’m pleased that over 1,000 members 

of the public were able to attend your hearings in person. Thousands more watched your confirmation hearing live on television 

and we streamed it online through the Judiciary Committee 

website. 

I believe the country needs and deserves a Supreme Court that 

bases its decision on the law and the Constitution, not politics or 

ideological agenda by either the right or the left. No Justice should 

substitute his or her personal preferences and overrule Congressional efforts to protect hard working Americans pursuant to our 

constitutional role. 

Judges have to approach every case with an open mind and a 

commitment to fairness. I respect your plight and I take so seriously which you pledge to all of us here that you will do your best 

to consider every case impartially, modestly, with a commitment to 

principle in accordance with law. 

Solicitor General Kagan, I believe you. We stand in recess. 

[Whereupon, at 5:35 p.m., the Committee was recessed.] 

(305) 

THE NOMINATION OF ELENA KAGAN TO BE 

AN ASSOCIATE JUSTICE OF THE SUPREME 

COURT OF THE UNITED STATES 

THURSDAY, JULY 1, 2010 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 4:04 p.m., in room 

SH–216, Hart Senate Office Building, Hon. Patrick J. Leahy, 

Chairman of the Committee, presiding. 

Present: Senators Leahy, Specter, Schumer, Durbin, Cardin, Klobuchar, Kaufman, Sessions, Hatch, and Kyl. 

Chairman LEAHY. Good afternoon. First off, I should say I apologize to everybody who has been waiting patiently. In respect for 

our former colleague and long-serving colleague, Senator Robert 

Byrd, whose body was lying in repose in the Senate, some that is 

an extraordinary occurrence, until just a few minutes ago, we decided not to hold the hearing during that time. 

There are a number of panels. If any one of you has a full statement, we will put the statement in the record, no matter what. You 

can just submit your statement. All of it will be in the record, and 

then I would urge you, each one, to keep within the 5-minute limit, 

and then Senators will be recognized for 5 minutes each to go 

around. 

I would ask all of you to stand. I will administer an oath. 

[Laughter.] 

Sorry. No, just the witnesses. 

I was beginning to feel important at that point. I never had a 

room stand before. Colonel, I know about your shoulder, and do not 

worry. We are not going to ask you to raise your right hand. But 

others, if you would, repeat after me, do you solemnly swear that 

the testimony you all give in this matter will be the whole truth 

and nothing but the truth, so help me God? All you have to do is 

say, ‘‘I do.’’ 

Ms. LEDBETTER. I do. 

Mr. GROSS. I do. 

Ms. GIBBINS. I do. 

Captain YOUNGBLOOD. I do. 

Captain HEGSETH. I do. 

Colonel MOE. I do. 

Chairman LEAHY. Thank you. Frankly, I cannot imagine any 

member of this panel or the other panels doing anything but. 

306 

Our first witness is Ms. Ledbetter. Lilly Ledbetter served as a 

manager at the Goodyear Tire and Rubber Company plant in Gadsden, Alabama, for more than 19 years. She was the plaintiff in the 

employment discrimination suit Ledbetter v. Goodyear, and she is 

now a tireless advocate for workplace fairness. Her case was one 

where she had been paid less than men doing the same thing, and 

that was kept hidden from her until well after she had retired. The 

Lilly Ledbetter Fair Pay Act of 2009 is named in her honor. 

Ms. Ledbetter, please go ahead. 

STATEMENT OF LILLY LEDBETTER, PLAINTIFF, LEDBETTER v. 

GOODYEAR TIRE 

Ms. LEDBETTER. Thank you, Mr. Chairman and members of the 

Committee. My name is Lilly Ledbetter, and it is an honor to be 

here. I am not a lawyer, but I know two things. I know that the 

Supreme Court’s decisions have a profound effect on everyday 

Americans, and I have learned that who is on the Supreme Court 

makes all the difference. 

I never in a million years would have thought that one day I 

would end having my fate decided by the Supreme Court. But I 

did. It all started in 1979 when Goodyear hired me to work as a 

supervisor in their tire plant in Gadsden, Alabama. I worked hard 

and I was good at my job, but Goodyear did not make it easy. I 

was one of only a few female supervisors, and I faced discrimination and sexual harassment by people who did not want women 

working there. 

At the end of my career, someone left an anonymous note in my 

mailbox at work showing how much I got paid compared with the 

male managers. I was actually earning 20 percent less than the 

lowest-paid male supervisor in the same position. 

On my next day off, I filed a complaint with the EEOC. Goodyear 

tried to say I was a poor worker and that is why they had given 

me smaller raises than the men. But after hearing all of the evidence, the jury did not believe them. It found that Goodyear had 

discriminated against me because I was a woman. That was a good 

moment. The jury was not going to stand for a national corporation 

paying me less than others just because of my sex. 

But then by a single vote, the Supreme Court took it all away. 

Five of the Justices said I should have complained after the first 

time I was paid less than the men, even though I did not know 

what the men were getting paid and had no way to prove that it 

was discriminatory. 

The Court said that once 180 days passed the smaller paychecks 

no longer counted as discrimination. But it sure feels like discrimination when you are on the receiving end of that smaller paycheck 

and trying to support your family with less money than the men 

are getting for the same job. 

And Goodyear continues to treat me like a second-class citizen 

and worker today because my pension and Social Security is based 

on the amount I earned. Goodyear gets to keep my extra pension 

as a reward for breaking the law. 

Justice Ginsburg hit the nail on the head when she said that the 

majority’s decision did not make sense in the real world. People 

cannot go around asking their co-workers how much money they 

307 

are making. In lots of places that could get you fired. Plus, even 

if you know that some people are getting paid more than you, that 

is no reason to suspect discrimination right away. You want to believe that your employer is doing the right thing and it will all 

even out down the road. And, anyway, it is hard to fight over a 

small amount of money early on. 

But the majority did not understand that or did not care. How 

it could have thought Congress would have intended the law to be 

so unfair I will never know. So Congress had to pass a new law 

to make sure that what happened to me would not happen to others in the future. My case shows that who gets appointed to the 

Supreme Court really makes a difference. 

If one more person like Justice Ginsburg or Justice Stevens were 

on the Court, one more person who understands what it is like for 

ordinary people living in the real world, then my case would have 

turned out differently. 

Since my case, I have talked to a lot of people around the country. Most cannot believe what happened to me and want to make 

sure that something like it does not happen again. They do not 

care if the Justices are Democrats or Republicans or which President appointed them or which Senators voted for them. They want 

a Supreme Court that makes decisions that make sense. 

That is why these hearings are so very important. We need Justices who understand that law must serve regular people who are 

just trying to work hard, do right, and make a good life for their 

families. And when the law is not clear, Justices need to use some 

common sense and keep in mind that the people who write laws 

are usually trying to make a law that is fair and sensible. 

This is not a game. Real people’s lives are at stake. We need Supreme Court Justices who understand that. 

Thank you very much for allowing me this honor. Thank you, sir. 

[The prepared statement of Ms. Ledbetter appears as a submission for the record.] 

Chairman LEAHY. Thank you very much, Ms. Ledbetter. You 

have been before this Committee before, and I always appreciate 

your being here. 

Our next witness is Jack Gross. He recently retired from the 

Farm Bureau Financial Services, FBL, after 29 years. He was the 

plaintiff in Gross v. FBL Financial Services, Inc. The Supreme 

Court’s 5–4 decision in that 2009 case made it more difficult for 

employees to prove they are victims of age discrimination. I advocated for the passage of the Protecting Older Workers Against Discrimination Act. 

Please go ahead, sir. 

STATEMENT OF JACK GROSS, PLAINTIFF, GROSS V. FBL 

FINANCIAL SERVICES, INC. 

Mr. GROSS. Thank you, Chairman Leahy, Ranking Member Sessions, and Committee members, for inviting me here to tell my 

story and state my position regarding the outcome and implications 

of the Supreme Court decision in my case, Gross v. FBL. 

It is an honor to be given this opportunity to speak out on behalf 

of millions of older workers, all too many of whom have experienced discrimination in the workplace. 

308 

While my name has now become associated with age discrimination, my story is being duplicated daily across the country, and my 

case has already been cited hundreds of times to deny remedies to 

victims of many other non-Title VII forms of workplace discrimination. I certainly never imagined that my case would end up here 

when it all started over 7 years ago or that it would have such farreaching implications. 

Very briefly, my employer, Farm Bureau Insurance, or FBL, demoted all claims employees who were age 50 or over and had supervisory or higher positions. I was included in that wholesale demotion even though I had 13 consecutive years of performance reviews in the top 3 to 5 percent of the company. My career and my 

contributions were exceptional, and they were very well documented for the jury. 

With very strong evidence of age discrimination, I filed a complaint, and 2 years later a Federal jury spent a week listening to 

all the testimony, seeing all the evidence, and being instructed on 

the ADEA, your law. The verdict came back in my favor and I 

thought the ordeal was over in 2005. As we now know, it was just 

the beginning. 

FBL appealed and the Eighth Circuit overturned my verdict because I had a ‘‘mixed motive’’ jury instruction, and they said that 

required so-called direct evidence instead of just the preponderance 

of circumstantial evidence that we had provided. 

With four decades of legislation and court precedent overwhelmingly on our side, we appealed to the Supreme Court, and we were 

elated when they accepted certiorari on that one issue of direct evidence requirements and ‘‘mixed motive’’ instructions. At the hearing, however, the Supreme Court broke with their own protocol and 

allowed the defense to advance an entirely new argument, one that 

had not been briefed nor had we been given an opportunity to prepare a rebuttal. In effect, it was a bait-and-switch on us—accepting 

cert. on our question and then ignoring that question to use my 

case as a vehicle to eviscerate the clear intent of the ADEA by creating a new hierarchy of workplace discrimination. Those that were 

specifically covered in Title VII were now at the top and required 

the prevailing standard of proof while all others, including age, 

now require—are at the lower tier and require a new and significantly higher standard of proof. 

I believe Congress, the branch of Government closest to the people clearly intended to abolish discrimination in the workplace, not 

to create exceptions for it or to stratify it. We came to DC last June 

believing our highest Court would uphold the rule of law and apply 

it consistently to all areas of discrimination. We were disappointed 

and, quite frankly, disillusioned by their arrogance in putting their 

own ideology ahead of the clear will of Congress and their own 

precedents. 

Since the Supreme Court’s decision, I have been particularly distressed over the collateral damage that has been inflicted on others. I hate having my name associated with the pain and injustice 

now being inflicted on other victims of discrimination because it is 

now nearly impossible to provide the level of proof required by that 

decision. 

309 

My case went largely unnoticed by the media and the public, but 

its tentacles are going to impact the lives of millions of workers. 

I have to keep reminding myself that I am not the one who 

changed your law. Five Justices did. With that I am not labeling 

the Court as a bad Court, but it is one that got at least one case 

entirely wrong, and the way they did it was unjust. Mistakes can 

be fixed, and we can move on. 

Congress has a long history of working together on a bipartisan 

basis to create and maintain and level playing field in the workplace. The ADEA is just one example. I urge you on behalf of millions of workers who only want an equal opportunity to revive that 

bipartisan spirit you have demonstrated in the past on civil rights 

issues and pass the Protecting Older Workers Against Discrimination Act soon, before more of your constituents back home are hurt 

by the new Court-made law. 

I am here before you as a man who agonized over the decision 

to pursue this case. As much as I hate discrimination in all its 

forms, I knew that I would be burning my career bridges behind 

me once I was branded as litigious. My wife, Marlene, and I prayed 

about it, decided it had to be done, and we left the outcome in 

God’s hands, never expecting that He would bring us here. If my 

experience eventually prevents anyone else from having to ensure 

the pain and humiliation of discrimination, I will always believe 

that this effort was part of God’s plan for my life. 

Thank you. 

[The prepared statement of Mr. Gross appears as a submission 

for the record.] 

Chairman LEAHY. Thank you very much, and thank you for coming here again. 

Jennifer Gibbins is the Executive Director of the Prince William 

Soundkeeper, the leading environmental advocacy organization in 

Prince William Sound, Alaska. 

Incidentally, I went there once years ago with former Senator 

Ted Stevens. It is a beautiful area. 

She lives in the remote fishing town of Cordova, the site of the 

1989 Exxon Valdez oil spill. For the past 7 years, she has worked 

to inform the public about the ongoing environmental, economic, 

social, and cultural impacts of the Exxon Valdez oil spill. 

Ms. Gibbins, please go ahead. 

STATEMENT OF JENNIFER GIBBINS, SOUNDKEEPER/ 

EXECUTIVE DIRECTOR, PRINCE WILLIAM SOUNDKEEPER 

Ms. GIBBINS. Thank you, Mr. Chairman and Committee members. I am honored to be here today and speak briefly regarding the 

spill’s ongoing impacts to people of my community and across 

Prince William Sound. I also want to be clear that everyone here 

understands that I myself am not an Exxon plaintiff. 

The precedent-setting decision in that case equated Exxon’s punishment, at the time the most profitable corporation in the world, 

to the loss of individual working men and women after 20 years of 

litigation. 

When the decision was announced in my town, the streets were 

silent, people were somber, and they just did not speak for days. 

You walked into the local breakfast dive which is typically bustling 

310 

with activity and fishermen talking about the upcoming season, 

and it was quiet. People were dazed. They stared at their eggs, 

they stared at the wall. 

There are five key messages I wish to deliver to you today, and 

they are especially important with what is going on in the gulf. 

First, above all, you cannot clean up an oil spill. Period. 

Second, the more than 32,000 victims of the Exxon Valdez spill 

were never made whole as Exxon promised. Regardless of compensatory or punitive damages, life as they knew it was permanently 

and irrevocably altered. 

Third, lingering oil persists in Prince William Sound to this very 

day, and you do not need a shovel to find it. 

Fourth, there is the pervasive sense that Government and the 

courts have failed the people—to the point where many question 

their relevance—and the question goes far beyond the health of 

their fundamental right to justice. They question its simple existence. 

Fifth, and perhaps most sadly, almost 20 years to the day, it is 

as if there is an echo coming from the gulf. The people of Prince 

William Sound stand in solidarity with the people in the gulf, and 

I do not know a single person who is surprised by what has happened. We tell them very clearly, do not believe a single word that 

BP is telling you. Do not expect anyone to help you. And, sadly, do 

not hold your breath when it comes to the courts. 

I am going to speak very briefly today to some of the impacts. 

There are four primary areas—environmental, cultural, economic, 

and social—and I am going to skip most of those and just focus on 

the societal impacts. 

One of the least understood impacts of the Exxon Valdez spill is 

the impact of litigation that continued for 20 years. Victims were 

promised in exact words—and we are hearing similar words 

today—that ‘‘you are lucky it was Exxon’’, that Exxon would ‘‘make 

you whole,’’ that the litigation ‘‘will not go on for 20 years.’’ 

After the spill, there were divorces, suicides; there were families 

that lost everything, and a lot of people left. Men speak to this very 

day of the psychological struggle due to losing their identity as 

family provider. 

One fisherman, now 50, has described to me of sinking into a 

mental abyss over the years following the spill when his wife had 

to become the sole breadwinner for the family. He was so affected 

that he began to fantasize about killing her. 

Another fisherman friend of mine about the same age stunned 

the community at a gathering just 2 years ago, declaring that he 

had recently been contemplating suicide because of his feelings of 

worthlessness. At about that same time, a woman in Cordova told 

me that the endless court case made her feel that she simply did 

not exist as a human being. 

Personal resource loss, chronic stress, feelings of alienation, anxiety, social disruption—these have been studied by highly 

credentialed social scientists in our town for 20 years, and these 

same scientists are now in the gulf. 

Because Exxon has such deep pockets—which, not incidentally, 

expanded exponentially over the past 20 years—they could litigate 

endlessly, wearing down their victims who, even as they stood toVerDate Nov 24 2008 12:24 Aug 23, 2011 Jkt 067622 PO 00000 Frm 00320 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\67622.TXT SJUD1 PsN: CMORC
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gether, were dwarfed. Exxon knew that if they played it as long as 

they could, memories would fade, the context could be changed, and 

they could win big. 

In 2008, a representative for Exxon speaking in the media called 

the punitive damages as originally awarded ‘‘an excessive windfall’’ 

for the plaintiffs. 

Exxon fought hard to avoid a precedent, and the cruelest irony 

for the plaintiffs is that a precedent was indeed set, one that diminished them further. 

To be dragged through litigation for 20 years is to be victimized 

over and over again. The burden of proof is always on the victim, 

and we are now hearing this from BP. They will pay all ‘‘legitimate’’ claims. We in Prince William Sound know exactly what that 

means. 

Somewhere along the way America has forgotten that corporations do not own the air or the lakes or the rivers or the seas. A 

privilege to use them has been granted on behalf of the millions of 

citizens who do, in fact, own them, and the business community is 

not living up to that privilege. 

How often is the root of disaster a cost-cutting, profit margin 

issue? Citizens need a better way of ensuring that people in business take the time to do what is right. I support the Big Oil Polluter Pays Act, and I believe that it is time to update OPA 90. 

Today in Prince William Sound we are working to move on, and 

it has been a long haul. But the journey is just beginning for the 

people in the gulf. And I think Elena Kagan seems like a fine 

nominee to the Supreme Court. She clearly knows the law, and she 

has a passion for it. And she wants the job. 

I just wish the nomination process was more about thinking and 

thoughtful discussion and less about sort of the silly pursuit of the 

‘‘ah-ha’’ moment. 

You know what they say about thinking: that it is patriotic. 

Thank you. 

[The prepared statement of Ms. Gibbins appears as a submission 

for the record.] 

Chairman LEAHY. Thank you very much, Ms. Gibbins. 

Our next witness is Captain Flagg Youngblood. He is an Army 

veteran who deployed to Afghanistan in 2003 and 2004 as a member of the California Army National Guard. He has served as Director of Military Outreach for Young Americans Foundation. He is 

a native of Nashville, Tennessee. Captain Youngblood graduated 

from Yale University. Am I correct in all that? 

Captain YOUNGBLOOD. Thank you. No. I will say just for the 

record that I actually did not serve in Afghanistan. 

Chairman LEAHY. Oh, I am sorry. 

Captain YOUNGBLOOD. I was deployed to the California National 

Guard in command of a unit that oversaw security for Travis Air 

Force Base. 

Chairman LEAHY. Thank you. Please go ahead, sir. 

312 

STATEMENT OF CAPTAIN FLAGG YOUNGBLOOD, UNITED 

STATES ARMY (RETIRED) 

Captain YOUNGBLOOD. Thank you for the opportunity today to 

give voice to the concerns many of our fellow citizens and veterans 

have regarding Elena Kagan’s Supreme Court nomination. 

My father, who is a veteran from Vietnam, asked me to join the 

Army when I was 16. He said to me, ‘‘You owe it to our country. 

You do not have to make a career of it, but you should.’’ 

As a college freshman in 1993, my daily walks by the war memorial in the heart of Yale’s campus made me question why learning 

the art of military leadership required a 65-mile drive to the University of Connecticut for ROTC. Never mind the gratuitous jabs 

when a tight schedule required wearing the uniform on Yale’s campus. 

After an English instructor once remarked, ‘‘Flagg, you should 

not wear that uniform to class; it is not conducive to learning,’’ I 

decided I had to speak out and do something about a situation I 

did not think was right. 

Trips to Washington, DC, in the summers of 1994 and 1995, 

along with lots of work and help in between, gave rise to the passage of the ROTC Campus Access Act, better known today as part 

of the Solomon Amendment. 

I am here today as a concerned citizen who cares deeply about 

the future of our constitutional republic. 

Having worked closely with the legislative team that crafted the 

original language of the Solomon Amendment, I can speak to legislative intent. The goal was simple: to renew institutional support 

for the military on campus. 

As the Supreme Court’s unanimous ruling on the Solomon 

Amendment reflects, ‘‘In order for a law school and its university 

to receive Federal funding, the law school must offer military recruiters the same access to its campus and students that it provides to the non-military recruiter receiving the most favorable access.’’ 

Claims that Dean Kagan acted adequately to comply with Solomon Amendment are factually false for two primary reasons; 

First, Dean Kagan admitted to breaking the law in September 

2005 in a letter she wrote to the Harvard Law School community. 

To abbreviate for clarity, ‘‘Although the Court’s decision meant no 

injunction applied, I reinstated our policy. My hope in taking this 

action was that the Department would choose not to enforce the 

Solomon Amendment.’’ As the military has long known, hope is no 

method. In Dean Kagan’s case, her hope demonstrates a total disregard for the rule of law. 

Second, separate but equal is, quite simply, not equal. Full-time 

students who act as part-time volunteers will never be able to compete with Harvard Law’s paid full-time career services staff and 

the institutional might it brings to bear. 

As the 2005 letter from Harvard Law School’s Veterans Association indicated, ‘‘We possess neither the time nor the resources to 

routinely schedule campus rooms or advertise extensively for outside organizations, as is the norm for most recruiting events.’’ 

To illustrate this point another way, imagine Dean Kagan owned 

a lunch counter. What she said to the military was, in effect, Sure, 

313 

you are welcome here, but would you be so kind as to use the back 

door by the garbage? You do not mind eating in the kitchen, do 

you? 

To the all but 12 percent of Americans who hold unfavorable 

views of the military, most favorable access means, particularly in 

a post-9/11 environment, that Dean Kagan would have invited the 

military into every Harvard Law classroom each semester, personally introduced the recruiters, and encouraged every eligible young 

adult to take the oath to ‘‘support and defend the Constitution of 

the United States against all enemies, foreign and domestic.’’ 

To defend the barriers Dean Kagan erected by saying military recruiters did not suffer or military recruiting did not suffer completely misses the point. A consistent policy of institutional support, namely, ‘‘most favorable access,’’ as the Solomon Amendment 

demands, would have unquestionably increased the ranks of those 

interested in serving. Just imagine how many more of the school’s 

1,900 students would have answered the Defense Department’s call 

if they were asked as routinely as they were by other employers. 

Barriers do indeed prevent all but the most committed from serving. I personally would not have joined the Army had my father not 

routinely encouraged me to do so. 

Dean Kagan’s unlawful brand of segregation clearly estranged 

the students of Harvard Law School from the military. Dean 

Kagan’s actions deem the military not worthy so much as to gather 

up the crumbs under Harvard’s table, and all during a time of war, 

after thousands of innocent Americans were brazenly murdered on 

our soil. All the Defense Department humbly requested was equal 

access. Neither Dean Kagan nor Harvard is above the law, even 

though both have acted as though they are. 

So what are the implications for Ms. Kagan’s fidelity to the text 

of the Constitution and the laws and ability to judge impartially, 

especially when she is presented legal claims that do not suit her 

ideological tastes? What signals do her actions at Harvard Law 

School send? 

Dean Kagan’s double-dealing betrays an unprincipled refusal to 

make these choices. Quite simply, it reflects a condescension toward American rule of law. A vote to confirm Ms. Kagan as a Supreme Court Justice is a vote to harm the interests of our military, 

the American people who overwhelmingly support it, and not just 

now but potentially for decades to come. 

Thank you. 

[The prepared statement of Captain Youngblood appears as a 

submission for the record.] 

Chairman LEAHY. Thank you very much, Captain Youngblood. 

Captain Pete Hegseth—did I pronounce that correctly, sir? 

Captain HEGSETH. Yes. 

Chairman LEAHY. He is the Executive Director of Vets for Freedom and an infantry officer in the Massachusetts Army National 

Guard and an Iraq war veteran. He received his B.A. from Princeton University and is currently pursuing a master’s degree at Harvard University’s John F. Kennedy School of Government. 

Is that all correct? 

Captain HEGSETH. Yes, sir. 

Chairman LEAHY. Thank you. Please go ahead. 

314 

STATEMENT OF CAPTAIN PETE HEGSETH, EXECUTIVE DIRECTOR, VETERANS FOR FREEDOM, ARMY NATIONAL GUARD 

Captain HEGSETH. Chairman Leahy, Ranking Member Sessions, 

other members of the Committee, thank you for the opportunity to 

be here today. It is a privilege to take part in these proceedings. 

My name is Pete Hegseth, and I am the Executive Director of 

Vets for Freedom, an organization of Iraq and Afghanistan veterans dedicated to supporting our warfighters, and their mission on 

the battlefield. I received my commission from Princeton University 

in 2003 and have since served two tours with the United States 

Army, the first at Guantanamo Bay, Cuba, and second in Iraq with 

the 101st Airborne Division. I am currently an infantry captain, as 

the Chairman said, with the Massachusetts Army National Guard 

and a graduate student at Harvard University. I am at this committee today as a citizen and a veteran and do not purport to speak 

at all on behalf of the military. 

I am going to start with the bottom line up front, as we do in 

the Army. We are a Nation at war, a Nation at war with a vicious 

enemy, on multiple fronts. I have seen this enemy firsthand, as 

have a precious few from my generation. The enemy we face detests and seeks to destroy our way of life while completely ignoring, 

and exploiting, for that matter, the rule of law. 

This context motivates my testimony today. I have got serious 

concerns about Elena Kagan’s actions toward the military and her 

willingness to myopically focus on preventing the military from 

having institutional and equal access to top-notch recruits at a 

time of war. I find her actions toward military recruiters at Harvard unbecoming a civic leader and certainly unbefitting a nominee 

to the United States Supreme Court. Ms. Kagan is clearly a capable academic, and the President has the right to choose whom he 

pleases. But in replacing the only remaining veteran on the Supreme Court in Justice John Paul Stevens, how did we reach this 

point in this country where we are nominating someone who, 

unapologetically, obstructed the military at a time of war? Ms. 

Kagan chose to use her position of authority to impede, rather than 

empower, the warriors who have fought and who have fallen for 

this country. 

I know a number of my fellow veterans will testify to Ms. 

Kagan’s personal support of veterans on Harvard’s campus. And 

Ms. Kagan has had good things to say about the military, which 

I appreciate. But, for my money, actions always speak louder than 

words. And Ms. Kagan’s actions toward recruiters, with wars raging overseas, undercut the military’s ability to fight and win wars, 

and they trump her rhetorical explanations. 

General David Petraeus calls counterinsurgency ‘‘a thinking 

man’s war.’’ Defeating our enemy on the battlefield and in the 

courtroom takes the best America has to offer. Yet in 2004, as you 

have heard many times already, Ms. Kagan took the law into her 

own hands, blocking equal access for military recruiters, in direct 

violation of Federal law. Moreover, she encouraged students to protest and oppose the presence of military recruiters. 

These actions coincided with my deployment to Guantanamo 

Bay, Cuba, itself a legal maze of graduate-level proportions. Would 

not the legal situation there and in the courtrooms of Iraq and AfVerDate Nov 24 2008 12:24 Aug 23, 2011 Jkt 067622 PO 00000 Frm 00324 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\67622.TXT SJUD1 PsN: CMORC
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ghanistan be better off with participation of lawyers of Harvard 

Law School caliber? And don’t we believe our best and brightest 

should be encouraged to serve? 

In response to his critique, Ms. Kagan has repeatedly stated 

that, despite her decision to bar recruiters from the Office of Career Services, the number of military recruits actually increased 

during her tenure. Let us be clear about that. It increased in spite 

of Ms. Kagan, not because of her. But I ask a more important question: Would that number not have been even higher had she actually supported recruiters rather than actively opposing them? 

To be fair, I do not begrudge Ms. Kagan’s opposition to the socalled Don’t ask, don’t tell legislation; reasonable people disagree 

about this policy. However, her fierce and activist opposition to the 

policy was intellectually dishonest and unnecessarily focused on 

the military. 

In e-mails to students and statements to the press, Ms. Kagan 

slammed, and I quote, ‘‘the military’s discriminatory recruitment 

policy.’’ Yet as a legal scholar, she knows better than that. She 

knows that the policy she abhors is not the military’s policy, but 

a policy enacted by Congress and imposed on the military. In fact, 

after the law was passed, Ms. Kagan went to work for the very 

man who signed ‘‘Don’t ask, don’t tell’’ into law—President Clinton. 

So for her to call it ‘‘the military’s policy’’ is intellectually dishonest, and her opposition to military recruiters at Harvard Law 

School had the effect of shooting the messenger. 

Likewise, while Ms. Kagan sought to block full access to military 

recruiters, she welcomed to campus numerous Senators and Congressmen who voted for the law she calls ‘‘a moral injustice of the 

first order.’’ Additionally, Harvard Law School has three academic 

chairs endowed by money from Saudi Arabia, a country where 

being a homosexual is a capital offense. So rather than confront the 

congressional source of the true legislation or take a stance against 

a country that executes homosexuals, Ms. Kagan zeroed in on military recruiters for a policy they neither authored nor emphasized. 

In closing, the real moral injustice is granting a lifetime appointment to someone who, when it mattered most, treated military recruiters like second-class citizens. I urge you to consider this as you 

consider Ms. Kagan. 

Thank you for the opportunity to address this important topic. 

[The prepared statement of Captain Hegseth appears as a submission for the record.] 

Chairman LEAHY. Thank you very much, Captain. 

Thomas Moe is a retired Air Force Colonel and Vietnam veteran, 

served in the Navy Reserve and the Air Force Reserve. He flew 

85—is that right?—combat missions in Vietnam until he was forced 

to eject over North Vietnam where he spent more than 5 years as 

a prisoner of war until he was released during Operation Homecoming in 1973. He received his B.A. from Capital University and 

M.A. from the University of Notre Dame. 

Please go ahead, Colonel. 

316 

STATEMENT OF COLONEL THOMAS N. MOE, UNITED STATES 

AIR FORCE (RETIRED) 

Colonel MOE. Thank you, Chairman Leahy and Senator Sessions 

and members of the Committee, for the opportunity to testify before this Committee. 

I would like to express my concern regarding the nomination of 

Ms. Kagan to the Supreme Court for the following reasons. Some 

of them are referring back to some of the reasons my colleagues 

have mentioned as well. 

Chief among them is that she has demonstrated a strong bias 

against the military, particularly while Dean of the Harvard Law 

School, largely over policies concerning the eligibility of homosexuals to serve in the military. 

As we have heard, in 1993 Congress passed and President Clinton signed Title 10 U.S.C. Section 654. Among other things, the 

law provided that the administration could omit the requirement 

that persons joining the military make any reference to their sexual orientation, a policy that became known as ‘‘Don’t ask, don’t 

tell.’’ 

In 1995 Ms. Kagan joined the Clinton administration as Associate Counsel, but I know of no stand that she took against ‘‘Don’t 

ask, don’t tell’’ during her tenure with Mr. Clinton. 

But when she was appointed Dean of the Harvard Law School 

in 2003, she began to loudly condemn the law and policy, calling 

it ‘‘a profound wrong’’ and ‘‘a moral injustice of the first order,’’ disregarding the fact that the 1993 law was approved by strong bipartisan majorities in Congress. 

She also knowingly defied the particular law we have already 

heard about, the Solomon Amendment, which concerns military recruitment. As Dean, Ms. Kagan treated military recruiters as second-class citizens. She did not allow the military to recruit on an 

equal basis with other agencies, and even called on her students 

to forcefully criticize military personnel. 

As we have heard on some occasions, she has expressed support 

for those in uniform, but such superficial gestures cannot mitigate 

her official actions. She apparently was encouraged by a ruling in 

2004 by the Third Circuit Court of Appeals that the Solomon 

Amendment was likely unconstitutional, but this court had suspended its own ruling pending review by the U.S. Supreme Court. 

Nevertheless, in violation of the Solomon Amendment, Ms. Kagan 

continued to restrict military recruiters at Harvard Law School. 

In 2005, she escalated from hostile words to legal activism, and 

she joined a friend of the court argument to the Supreme Court, 

claiming that Harvard Law could bar military recruiters because it 

barred all recruiters who discriminated against homosexuals. But 

in 2006, this argument, along with the suspended Third Circuit 

Court ruling, was struck down by the Supreme Court unanimously. 

Even the most liberal-minded Justices rejected Ms. Kagan’s position. With a stinging rebuke, the Court said that her theories were 

clearly not what Congress had in mind. She later acknowledged 

that her actions were not justified, but said that she had acted anyway in the hope that the Department of Defense would not enforce 

the law. The issue here is bias, and Ms. Kagan’s record reveals the 

persistent bias, at least regarding the military. 

317 

As a citizen, I cannot support the appointment of Justices who 

would pick and choose which law they wished to follow or violate 

a law in hopes that it would not be enforced. As a veteran, I am 

even more troubled that an activist Justice would not instead defer 

to the other branches of Government, particularly the Congress, 

which the Supreme Court has itself recognized as more qualified to 

act on issues concerning the military. 

And what evidence is there that Ms. Kagan has shown an understanding of the Defense Department’s position regarding homosexuals in the military? The 1993 law clearly states why homosexual activity in the military is harmful to its mission while 

stressing that the military is a specialized society subject to special 

laws that would not apply to the citizenry at large. Those who do 

not understand the special nature of the military should not be 

handed authority to make important decisions that affect it. 

And I question whether Ms. Kagan has consistently applied her 

stated principles regarding discrimination against homosexuals. 

Her principles did not seem to come into play in 2007 when President Clinton, the sponsor of ‘‘Don’t ask, don’t tell’’, spoke at Harvard’s commencement or, as we have already heard, when a member of the Saudi ruling family, a person in a position to influence 

the policy in Saudi Arabia which executes homosexuals opened a 

school on campus and Ms. Kagan did not lift her voice against that. 

Last, I would think that a person so opposed to rules governing 

the military as Ms. Kagan would encourage rather than hinder 

participation in the military by her graduates so that they may be 

part of the composition of the military’s leadership and thus have 

the opportunity to influence military policy. 

It is unfortunate that Ms. Kagan has presumed herself the wisdom to demand the military to accept professed homosexuals, but 

in my view, she has neither the experience on which to base that 

wisdom nor the responsibility to deal with the consequences of her 

conviction. 

I thank you again, Chairman, for this opportunity. 

[The prepared statement of Colonel Moe appears as a submission 

for the record.] 

Chairman LEAHY. Thank you, Colonel. And, of course, yesterday—and now I will be on my time—we put into the record a letter 

from First Lieutenant David Tressler, who is currently serving in 

Afghanistan, who strongly supports Solicitor General Kagan. He 

was at Harvard Law when she was dean. And we will have on the 

next panel Kurt White, who is the President of the Harvard Law 

School Armed Forces. After graduating from West Point, Mr. 

White, served as a platoon leader, an executive officer in Iraq 

where he earned two Bronze Stars in 2004 and 2006, left active 

duty in 2007 with the rank of captain, went on to serve in the National Guard, currently finishing graduate degrees in law and business at Harvard, who supports Solicitor General Kagan. 

Mr. Gross, it is nice to have you back to the Committee, and I 

appreciate you following in Ms. Ledbetter’s footsteps by educating 

people about why the Supreme Court matters and how their decisions in your case need to be overturned by legislation. I hope that 

my friends on the other side will join us in passing the Protecting 

Older Workers Against Discrimination Act. We passed the 

318 

Ledbetter bill with bipartisan support, and we will need the same 

help there. In fact, in your written testimony, you state that all 

Americans owe Ms. Ledbetter thanks for helping us overturn an 

unjust decision. 

Ms. Ledbetter, yesterday Senator Klobuchar made a great point 

about women like Elena Kagan who broke the glass ceiling. When 

you started working at Goodyear, how many women managers 

were there? 

Ms. LEDBETTER. None to my knowledge. I never met any. 

Chairman LEAHY. Do you know how many women were on the 

Supreme Court when your case went before them? 

Ms. LEDBETTER. One. 

Chairman LEAHY. How do you think women or young girls in 

this country would feel if Solicitor General Kagan is confirmed and 

we have for the first time three women on the nine-member Supreme Court? 

Ms. LEDBETTER. I think it would be an outstanding accomplishment for the people across the Nation, not only the women but also 

their families. And one thing I have heard in observing and watching the hearings, all of Elena Kagan’s responses have been that she 

would adhere and follow the law, not make the law. She understands what her responsibility would be as a Supreme Court Justice. 

Chairman LEAHY. Is that why you support her? 

Ms. LEDBETTER. Yes, sir. Yes, sir. 

Chairman LEAHY. Thank you. 

Ms. LEDBETTER. I wish the people on the Supreme Court, five of 

those Justices, just one more had adhered to the law in my case. 

Then my outcome would have been different. 

Chairman LEAHY. Thank you. 

Ms. Gibbins, you spoke about life and work on the shores of 

Prince William Sound in Alaska. You have dedicated your life to 

doing it, rather gripping stories to hear the personal effect on people, the suicides, the demoralized people. All those people, as I understand it, like the folks in the gulf, worked very hard, played by 

the rules, did not expect any—expected everybody else to play by 

the rules. In your testimony, you touched on the impact of the 

Exxon case on your community, and you are not one of the litigants 

in it, so you do not have a financial interest in this. But you have 

seen what it has done to the people there, just as we are seeing 

every night on the news and every morning in the papers about 

what it is doing to the people down in the gulf. 

Do you think that the Supreme Court ruling in Exxon Shipping 

v. Baker has affected public confidence in our justice system? And 

if so, how? 

Ms. GIBBINS. Well, as I mentioned briefly, the impact that it had 

on the people in my community, what they took away from it is a 

sense that there is no justice. And currently I work a lot with people in the gulf. We are trying to be very supportive of them. And 

I think there is the same fear. 

And when you look at the mistakes that have been made, the 

human errors, the attention on the profit margin, the missed opportunities over and over again to prevent things like this—and I 

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319 

ness, and I believe that business can do the right thing. But when 

the laws are not enforced and the best tool that we have to hold 

corporations accountable, punitive damages, is not used in the way 

that they were intended, then people lose faith. And I would have 

to say that the people in my community have lost faith. 

Chairman LEAHY. Thank you very much. My time has expired. 

I am going to be putting a letter in the record after, but I will yield 

to Senator Sessions. 

Senator SESSIONS. Thank you, Mr. Chairman. 

I thank our military witnesses for, with clarity, stating the true 

facts of what happened at Harvard. It was not a little bitty matter. 

It was not a matter that just slid into reality and Dean Kagan was 

caught somehow in the middle of a controversy. She was a leader, 

she was a driving force in the effort to remove the military from 

full and equal access to that campus after the Solomon Amendment 

had been passed and that was required. 

Captain Hegseth, were you with General Petraeus in Mosul? 

Captain HEGSETH. I was not. I did not have the chance to serve 

under him. No, sir. 

Senator SESSIONS. I was with the 101st there during that time 

in Mosul. They had the Alabama National Guard attached to them, 

too, at that time. 

But you talked about coming in the back door, having to eat— 

or maybe it was Captain Youngblood—having to dine in the kitchen and not sit out front. Do you think just from—both of you, you 

are Yale, you are Harvard, you are Notre Dame. Do you feel that 

that policy, setting aside the impact it may have had on recruiting, 

sent a message of some kind to the veterans and to the recruiters 

who may themselves have come off the battlefield to come on that 

campus? 

Captain YOUNGBLOOD. Oh, absolutely. 

Senator SESSIONS. What was that message, Captain? 

Captain YOUNGBLOOD. That message very clearly is that your 

service to the country and to protect the Constitution is not valued 

by these institutions. 

Senator SESSIONS. Captain Hegseth. 

Captain HEGSETH. It certainly was not a message of support. You 

know, I know she met with veterans on Veterans Day. I know she 

honored them on public occasions. And, you know, that is appreciated by veterans. We learned that lesson from Vietnam vets who 

we did not honor. But it is a whole other thing when you take actions on their behalf to proactively give them access, elevate their 

service, show fellow classmates that indeed entering the military, 

going to the JAG Corps, and being an Army lawyer or an Air Force 

lawyer is a way to contribute to your country just like any other 

legal defense fund. It is one thing to say it. It is another thing to 

do it. And I think she made that very clear. 

Senator SESSIONS. You being somewhat familiar with the Harvard campus, I understand that the speech she made to a protest 

was at the same time that a recruiter was in the next building attempting to recruit students. And so she made a speech in which 

she condemned the military policy and spoke out in that fashion. 

Do you think that would have been an asset to the recruiter in 

his effort in the next building? 

320 

Captain HEGSETH. It is certainly not going to help, sir. Also, the 

fact that it was encouraged that students would sign up for time 

with recruiters who had no interest in joining the military to clog 

the time and clog the rolls so that less actual possible recruits 

would have access. That is something Ms. Kagan also is purported 

to have encouraged. 

Senator SESSIONS. Well, this veterans group, do you have any 

knowledge of it at Harvard—— 

Captain HEGSETH. I have been a member of some veterans 

groups. Oftentimes, we sit around and drink beer sometimes, but 

we do not usually bring recruiters on campus, sir. 

Senator SESSIONS. Well, the veterans group at Harvard, they did 

not have a salary, they did not have an office. They were just a 

group of people that got together on occasion. How do you feel— 

Dean Kagan’s testimony here about how the veterans association 

was offered the opportunity to be helpful to the recruiters. How do 

you judge that as a realistic explanation for denying them the official ability to utilize the recruiting services and office? 

Captain HEGSETH. I just do not think there is anyway you could 

possibly say that that is equal access. You are thrusting it on students with a full workload like anyone else. They did not sign up 

to bring recruiters on to campus. They do not have the resources. 

They are not being paid. They are not able to publicize it. Students 

oftentimes did not even know that recruiters were there. So it is 

an issue when the Office of Career Services—anybody that has 

been at a university knows that all the folks that come in to offer 

jobs go through the Career Services. You read the bulletin or you 

look on the screen to see when they are here, who you can meet 

with. When you do not have access to that, you are not accessing 

the pool of students in any sort of equal way. 

Senator SESSIONS. Do you agree, Captain Youngblood? 

Captain YOUNGBLOOD. I absolutely do. In fact, you know, much 

is made over time about the network, you know, the networking opportunities going to an Ivy League will provide students and be 

shut out of that, when everyone goes through a Career Services Office, in effect prevents people from ever considering those careers. 

Senator SESSIONS. Colonel Moe, thank you for your service. Do 

you have any comments on that subject? 

Colonel MOE. Well, you know, actually the experience I had at 

Notre Dame was in direct contrast to what these gentlemen have 

said for the very opposite reason. Notre Dame, a strictly Catholic 

school, practices the Catholic character of the just war, et cetera, 

has a very, very strong ROTC presence, and as a student and later 

a faculty member and then a researcher at the Kroc Peace Institute, I saw very well and discussed very heatedly with a number 

of faculty about the position of the military on campus and even 

issues of war. 

But one of the references I made in my testimony, Senator, actually comes from the mouth of Father Ted Hesburgh, by many 

standards certainly not a flaming conservative, who believed that 

one of the main reasons to have a strong ROTC presence at Notre 

Dame, both in the undergraduate and graduate school, was that 

those graduates who go forth in the military and influence the military such as they could from their upbringing. 

321 

Senator SESSIONS. Thank you. 

Chairman LEAHY. Thank you. My brother-in-law was a teacher— 

he is a Holy Cross priest, and he was a teacher there for some 

time. I would love to hear more of it. We are trying to keep to our 

strict schedule, and I am going to turn the gavel over to Senator 

Cardin, although the next person to be recognized will be Senator 

Specter. And if anybody feels like they are being cutoff, it is, again, 

because of the extraordinary circumstances of starting this at this 

hour, just so all the others who are going to want to testify will 

have the time to, both for and against Solicitor General Kagan. So 

that is why I am—and I know you have been waiting patiently, but 

that is why we are keeping to the time. Thank you. 

Senator SPECTER. Mr. Chairman, may I yield to Senator Durbin 

and take a turn a little later? 

Chairman LEAHY. Certainly. Go ahead, Senator Durbin. 

Senator DURBIN. Well, thanks Senator Specter, and thanks to the 

panel for your testimony, all of you. 

I want to especially thank Ms. Ledbetter, Mr. Gross, and Ms. 

Gibbins for putting a face on many of the issues that are before the 

Supreme Court. Our hearings here tend to be so general and so 

technical and so legal that I am sure at the end of the day a lot 

of people think, well, this will never affect me. But each one of you 

has a story to tell about how it affected you personally, and I thank 

you very much for doing that. 

Ms. Ledbetter, we met before, and I congratulate you for not giving up after losing in the Supreme Court. I was there when President Obama signed his first bill, the Lilly Ledbetter Fair Pay Act, 

and I was glad to be part of that. 

Mr. Gross, coming from the Midwest and having worked with the 

Farm Bureau all my life, I am sorry you were the victim of age discrimination, and I am sorry this Court, the Supreme Court, which 

is supposed to be a non-activist Court, decided to invent a legal 

theory to deny you recovery. I think that is unfortunate. 

Ms. Gibbins, 21 years ago I was up in Prince William Sound, 

right after the spill, and I saw it. And I will never forget it as long 

as I live. And I, too, share your skepticism about some of the promises that are made on the corporate side and know that we need 

to have a court system and a Congress that is sensitive to the need 

to think, as you say, and be thoughtful in the way we approach 

some of these environmental issues. 

To the other three witnesses, I apologize for stepping out for a 

moment, but I have read your testimony, and I thank you for being 

here and thank you for your service to our country. We all appreciate it very much. 

I would like to note by way of a question two things that struck 

me recently. One is the fact that we all know so many of our great 

veterans of World War II are passing on. Time is taking its toll. 

And I have one Joe Flynn who lives in my home town and who was 

part of the D-Day invasion and the Battle of the Bulge. A great old 

fellow, so proud of his service in World War II, and I do not question for a minute what Tom Brokaw said, ‘‘The Greatest Generation.’’ They served for the duration when they decided to enlist in 

our armed forces. 

322 

But there was also another historic event just last week, the 60th 

anniversary of the beginning of the Korean War, and we gathered 

in Statuary Hall, and one of the first persons to speak was Congressman Charlie Rangel of New York. Congressman Charlie Rangel was a combat veteran of the Korean War. He had enlisted before the Korean War in an army that was segregated. And Congressman Rangel happened to be able to serve in Korea in combat 

because of the efforts of President Truman to integrate our armed 

forces. 

I raise that issue because I want to ask one of you, any of you, 

if you think that we can honor the Greatest Generation and our 

military men who gave so much to our country and still look back 

with some dismay that it was a segregated force and it was not 

until the Korean War that our military was truly integrated. And 

if you think that you can—and I believe you can—can you understand for a moment how some may have feelings about discrimination in our current military against those of a different sexual orientation and believe that that discrimination should also be noted 

and people may want to speak out on it? 

I invite your comments. 

Captain HEGSETH. Senator, I would say that I can understand 

that certain members of our society would feel excluded because of 

a particular policy, and many people have different opinions on 

that policy. My testimony and my issue is the way in which Ms. 

Kagan confronted that policy. She could have done so by talking 

about the wrongs of countries like Saudi Arabia that execute homosexuals. She could have taken issue with it by not bringing Senators and Congressmen who voted for the law she calls ‘‘immoral, 

wrong, of the first order’’ to campus. 

There are many different ways she could have zeroed in on that 

particular policy and instead used the military as the focal point 

to do it when these recruiters, you know, they are messengers. 

They are there to recruit—— 

Senator DURBIN. But I ask you, you do not disagree with the 

premise, that if you feel that there is discrimination in our society 

and even though you respect the institution, the military in World 

War II, but know there was discrimination, that speaking out is 

not un—— 

American or inconsistent with our history, is it? 

Captain HEGSETH. I am not calling it un-American, but I think 

you also have to look at it in the context of a post-9/11 world where 

we are fighting a real enemy and we need recruits and good ones. 

Senator DURBIN. I understand that, and I also understand the 

testimony of Solicitor General Kagan, and you have all noted and 

see it differently that during this period of time, the recruiters 

were on campus with veterans organizations and they actually increased the number of recruits. Some of you said, well, we could 

have had maybe more if they had done it in a different fashion. 

But I think it was clear from the letters we have received in this 

Committee, she is not opposed to veterans. She is not opposed to 

the military. It was a matter of conscience for her to speak out. I 

respect her for that. She might have done it differently. We all 

might do things a little differently. But I think in the end there is 

323 

no question that she has the greatest respect for the military and 

our country, as I have respect for your service. 

Thank you. 

Senator CARDIN. [Presiding.] Thank you, Senator Durbin. 

Senator Hatch. 

Senator HATCH. Mr. Chairman, I’m just grateful for all these witnesses and appreciate their testimony here today. Thank you. 

Senator CARDIN. Senator Klobuchar. 

Senator KLOBUCHAR. Thank you very much, all of you, and thank 

you especially for your service and everything you’ve done for our 

country. I really appreciate it. 

We talked a lot about your case during the questions of Solicitor 

General Kagan, Ms. Ledbetter, and I wanted to just go through 

some of that. First of all, could you just go through again how you 

found out, how you had to find out that some of your counterparts—your male counterparts were making more money than you 

did and got raises that you didn’t get? 

Ms. Ledbetter. Yes. I only learned about the discrepancy in my 

pay after 19 years, and that was with someone leaving me an 

anonymous note, because otherwise I would not have known because Goodyear prohibited each one of us from ever discussing our 

pay or we would not work there. So our pay was never discussed 

and we could not find out, and that was the only way I had to find 

out. 

Senator KLOBUCHAR. So you had no way of knowing that other 

workers, men that were getting more money than you, and it kept 

getting worse and worse as the years go by, you didn’t know that? 

Ms. LEDBETTER. No, I did not. I had no way to know. 

Senator KLOBUCHAR. Right. Then you go to court and you win an 

award to say you could make up that money that you’d lost, and 

then you go to the U.S. Supreme Court, and what did they tell you 

in terms of when you were supposed to have found that out? 

Ms. LEDBETTER. According to the response that Justice Aleto 

wrote, he said that I should have complained after the first paycheck that I received that was discriminatory, even though I didn’t 

know that and no way to prove it. 

Senator KLOBUCHAR. So I’m just wondering, and I know that 

Justice Ginsburg—and this is something I talked to Solicitor General Kagan about this—was I suppose only—you would have had 

to be, like, rifling through the drawers, looking at paystubs or asking your fellow employees who much they were making. Is that 

what you were supposed to do? 

Ms. LEDBETTER. Well, I was supposed to do that in order to find 

out, and had I done that I would have been fired. 

Senator KLOBUCHAR. Right. So I think one of the reasons your 

case, in addition to the obvious wrongs that were righted by the 

law that was passed in Congress, but I think one of the things that 

interested me about your case was it was just an example of you, 

who never thought you’d end up here in the halls of Congress, nor 

I think did any of the other witnesses here, I can see them shaking 

their heads at the end, wondering if it’s that fun anyway to be 

here. 

But what you were—what strikes me most about your case is 

that you just happened to be in this situation. You ended up going 

324 

to the highest court in the land, and I think to me you are an example of what I talked about, that these decisions have an impact 

on regular people when the court makes these decisions. 

You touched on the fact, through your testimony, that sometimes 

the law isn’t always clear, Ms. Ledbetter, and that the importance 

of the court using common sense is very important. And do you 

want to talk a little bit more about why you think Solicitor General 

Kagan, who I know you’re here to testify for today, why you think 

she has that common sense? 

Ms. LEDBETTER. Because that’s what I’ve heard her say in these 

hearings so far, is that she would adhere to the law and not be 

making the law. It’s Congress’ job to change laws and make new 

laws. A Supreme Court justice should adhere to the law and follow 

the precedent, and I’ve heard her say she would follow precedent. 

I heard Senator Specter yesterday comment about some of the— 

two of the last three Supreme Court justices that went on the 

bench have not ruled according to the way they testified when they 

were confirmed. 

Senator KLOBUCHAR. Very good. 

Now, Ms. Gibbins, I was always interested in your case, not only 

because of the horrible wrong that happened there, but also actually it was a Minnesota law firm that represented the fishermen, 

the plaintiffs in the case. So I’m somewhat familiar. I actually read 

a book on it called Cleaning Up about the case and how long it 

took, and those kinds of things. 

What do you think we can learn from what happened, the delay? 

I think 8,000 of the plaintiffs died before getting any of the awards 

because of the delay in their case. As you mentioned, the verdict 

was $5 billion slashed down to $500 million. What are the lessons 

we can learn in terms of the Supreme Court, and also what we 

should be doing now with the oil spill in the Gulf? 

Ms. Gibbins. Have you got a couple of weeks? 

[Laughter.] 

Senator KLOBUCHAR. I have exactly 19 seconds. No, I think you 

can go a little into my time. The Chairman will allow me. 

Senator CARDIN. Fifteen seconds. 

Ms. Gibbins. Well, one of the big problems was, after 20 years, 

everything was out of context. The strategy that the lawyers had 

for their clients was out of context, the climate of the country had 

changed. One of the things that I think concerns me the most is, 

over that time, the U.S. Chamber of Commerce had a really serious 

influence on the composition of the court, and as an environmental 

activist and as president of our local Chamber of Commerce, I support business, but I think somewhere along the line we forgot that 

the backbone of the United States is actually small business. 

In terms of what’s going on in the Gulf, I think we need to look 

at some of the things that were applied in Alaska, our oil response 

system, our regional Citizens Advisory Councils, and those things 

need to be institutionalized nationwide. I also think that it’s incredibly important that we institutionalize transparency through public 

participation in the incident command system, in the development 

of plans. Here we have a plan for response in the Gulf that— 

there’s nothing there, and if citizens can be participating, I think 

that’s the real hope of transparency. 

325 

Senator KLOBUCHAR. Thank you very much. 

Thank you, Mr. Chairman. 

Senator CARDIN. Thank you very much. 

Senator Kyl. 

Senator KYL. Thank you, Mr. Chairman. I appreciate all of the 

witnesses’ testimony. 

As to the first three, I take from the invitation to have them testify a hope that their presence argues for a justice who would rule 

for them; a more results-oriented ploy, I cannot imagine. It is precisely the concern I have about the President’s motivation in nominating Elena Kagan. As to the last three, I thank you for your 

service and your testimony. 

Senator CARDIN. Let me thank all of our witnesses. I particularly 

want to thank our three military witnesses for their service to our 

country, and we very much appreciate you being here. 

I do want to put in the record a letter that was sent to Chairman 

Leahy today from Zachary Prager, a Lieutenant in the Navy, in 

support of Dean Kagan, who was at Harvard during the time in 

question. Without objection, that will be made part of the record. 

[The letter appears as a submission for the record.] 

Senator CARDIN. I also want, during my time, to underscore the 

point that I said in my opening statements at Solicitor General 

Kagan’s hearing. That is, I wanted Americans to get a better understanding of the impact of the Supreme Court on their everyday 

lives. I think this panel has been particularly helpful in that regard. It affects students, their decisions. It affects, certainly, workers. It affects consumers, and clearly affects those who are fighting 

for our environment. 

I particularly want to thank Lilly Ledbetter and Jack Gross and 

Jennifer Gibbins for putting a face on the issue. We hear statistics, 

we hear numbers, but we really are talking about the effect on real 

people’s lives. We know the name Gross and we know the name 

Ledbetter because of Supreme Court decisions, but they’re real people, as we see here today, who have real emotions. Solicitor General Kagan said that she wants every American to get a fair shake. 

It’s something that really impressed me in her opening comments. 

So I just want to go back just one more time and give you, Ms. 

Ledbetter, Mr. Gross, Ms. Gibbins, a chance to respond as to how 

you felt when you took your case to the court and were able to 

prove discrimination, able to get a jury to give you an award, knew 

that Congress had passed a law against gender discrimination, 

against age discrimination. You had the law on your side. Then 

your case goes to the Supreme Court. 

In one case, Ms. Ledbetter, the court rules against you. In the 

other, Mr. Gross, the court changes the case in order to take up 

basically a different matter. But the results were the same: you 

both were denied your individual justice, but just as importantly, 

the reason you brought the case, is to make it clear that gender 

discrimination and age discrimination have no place in America. 

How did you feel the day you learned about the Supreme Court 

decision? 

Ms. LEDBETTER. The day I learned, I was very disappointed because, as you said, the law had been on my side. It supported my 

case. The Equal Employment office had supported me all the way 

326 

to the Supreme Court. And then those five justices decided I should 

have complained back in the early days when my pay was first set, 

even though I didn’t know it and even though I had no way to 

prove it, and even though we were not allowed to discuss or ask 

about our pay. 

It was so hard to understand how they could do that, and the 

precedent had always been in other cases that it would have gone 

in my favor. It was really devastating, because this is real people, 

real lives, and it’s not easy to swallow this disappointment when 

they change the law. I felt—and the Supreme Court didn’t say I 

had not been discriminated against, they just said I waited too 

long. 

Senator CARDIN. Mr. Gross. 

Mr. GROSS. A couple of things. During the hearing, Justice Suter 

made the comment that juries are smarter than justices, and that 

kind of rang true. I really felt like the first obligation of our court 

system would be to try to sanctify that a jury who heard all of the 

evidence and saw all of the testimony, our citizens, heard the law. 

I think they were able to interpret it; they’re pretty bright Iowans. 

I think the discrimination is a little bit like pornography. You may 

not be able to define it clearly, but you know it when you see it. 

I believe the jury did. 

Second, when we got to the hearing and we had presented everything that had been briefed, I had personally spent $11,000 just in 

printing costs for the briefs once we got there. We got through our 

argument, the Solicitor General took half of our time and made an 

argument on our behalf. 

And then all of a sudden, we were just blindsided. They decided, 

let’s just take off in a new direction, and instead of addressing the 

issue that they had agreed to take, they said let’s go back and look 

at the entire context of the ADA and the language of it, and essentially they just redefined the law. 

Senator CARDIN. Thank you. 

Ms. Gibbins, you’ve already answered that from your community, 

I think. 

Senator Specter. 

Senator SPECTER. Thank you, Mr. Chairman. 

Captain Youngblood, I was in ROTC myself. Some will say the 

University of Pennsylvania is elite. You expressed concern about 

difficulties of recruiting on so-called ‘‘elite’’ campuses. I think 

ROTC is very important. Just a 20-second personal story. I went 

to summer camp, one of 2,000 cadets, on June 25, 1950. It was the 

day the Korean War started. We were in khaki. We thought we’d 

never go back to college. Most were fourth year. But when we finished our training, they sent us back to school because they wanted 

to win the war. I served stateside during the Korean War as a lieutenant in the United States Air Force. 

And I think the military has to have access to campuses. When 

you deal with the issue of sexual orientation, you’re on a very sensitive subject. Thinking has evolved on the matter with the Supreme Court changing the law of criminality there. I have a couple 

of issues that I’d like you to respond to. 

One issue is whether sexual orientation has any impact on the 

ability to serve, and the second would be whether, even if you disVerDate Nov 24 2008 12:24 Aug 23, 2011 Jkt 067622 PO 00000 Frm 00336 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\67622.TXT SJUD1 PsN: CMORC
327 

agree with Ms. Kagan—and I’ve disagreed with her on quite a few 

things over the course of the last couple of days, and I’m thinking 

about her nomination very carefully. Would you say that this one 

issue, in the context of her overall career, would be a disqualifier? 

But take up Number one first, about sexual preference having any 

impact on a person’s ability to serve, man or woman. 

Captain YOUNGBLOOD. Well, I would say, first off, Senator, the 

issue—and this is something I’ve argued since I was a student in 

college and this was an issue back in the 1990s. You know, so long 

as someone is willing to put their service to the military first, just 

like everybody in the military has to do, mission comes first, I personally don’t have a problem with that. 

But again, mission has to come first. If something arises that disrupts the mission, it doesn’t matter what it is, it could disrupt the 

mission. So, you know, Congress sets that policy. It’s your decision 

as a Member of Congress so to do. You know, someone in the military would just salute and drive out smartly. 

Senator SPECTER. Well, there are a number—many things can affect mission. But do you think sexual orientation does? 

Captain YOUNGBLOOD. Well, again, like I say, if someone’s willing to put their service first and worry about the mission first, to 

me it’s not something that’s an issue. 

Senator SPECTER. And how about the question of one issue disqualifying a nominee for the court? 

Captain YOUNGBLOOD. Well, I think it’s not an issue, strictly 

speaking, of don’t ask/don’t tell here. It’s more an issue that 

through her own decision, Dean Kagan, at the Harvard Law 

School, decided to strictly ignore the law. There was no injunction 

from a court that had jurisdiction over Harvard Law School. No 

one issued a statement or enjoined the DoD from enforcing the law. 

As her letter said, which I read into the record, she strictly acted 

hoping that she would be able to not have the law enforced, knowing full well that the law was in full force and effect. 

So to that, I would say somebody that shows disregard of that 

nature to a Federal law, a law set by this body, is not acting in 

conjunction or in honoring the rule of law, which she has been on 

record saying that she would honor the rule of law, so there’s a direct contradiction there. But then second, especially in a time of 

war when there are people out fighting and dying, we have somebody that is flouting the foundation of the rule of law, which is to 

say our Constitution. So that, I do have a serious issue with. 

Senator SPECTER. Well, thank you for your service, Captain 

Youngblood and Captain Hegseth and Colonel Moe. 

One question for you, Mr. Gross. Your age discrimination victory 

before a jury was reversed by the Supreme Court, which as you 

characterized it, did not follow precedent. And I think that precedent is very important. We’ve had a lot of discussion in this room 

about stare decisis, the fancy Latin phrase, ‘‘to follow the law.’’ 

I’ve been concerned about, nominees talk about stare decisis and 

then not follow it. I talked extensively about Chief Justice Roberts, 

who said he would follow it, then issued a long concurring opinion, 

really repudiating his testimony. One of the concerns I have is 

what we can do about nominees who say one thing here, and cross 

the street and cite it some other way. 

328 

I’ve been pushing television for a long time as the one thing, if 

people understand what the court does and they decide all the cutting-edge questions, there might be some pressure on accountability. I’d like your opinion, as a fellow who’s been to the Supreme 

Court, probably even watched television, whether you think that 

television would have a good impact generally, or if we understood 

what the court was doing, would have some influence on accountability. 

Senator CARDIN. Mr. Gross, you can respond quickly. You can always supplement this by a written response. 

Mr. GROSS. Well, there’s actually several parts to that question. 

In general, I agree with a lot of what you’re saying. I watched a 

little bit of the hearings. I think there’s a consensus among everybody, both parties, that we don’t want activist judges, we want 

them to follow the law. I’ve heard it time after time. There does 

seem to be some partisanship that enters into that. I don’t know 

if you can find a perfectly unpartisan candidate for that spot. I 

think you have a very tough job on your Committee to vet people. 

That’s what we hire you to do, and we’re assuming that you’re 

going to do the best job that you can, being as diplomatic as I can. 

As far as televising things and keeping them open, I think that 

would be good, transparent. But I don’t know where else to go with 

that. 

Senator CARDIN. Thank you. That was a very concise answer. Appreciate it. 

I thank our witnesses for their testimony. That will conclude the 

first panel. We will now call up the second panel. 

Senator Leahy has announced that because we are unable to do 

more than one round, that there may be some questions that will 

be propounded in writing to our different panelists. With your cooperation, we might be coming back to you and asking you for further information. I believe the record is open until noon on Monday 

for questions to the witnesses. 

Thank you all very much for being here. 

Senator SESSIONS. Mr. Chairman? I’d just thank all of you. I’m 

sorry I didn’t get to talk to the first three witnesses. I got carried 

away with the military issue that I care about. 

Ms. Ledbetter, it’s good to see you went past that Goodyear plant 

a lot of times, according to my wife, who grew up in Gadsden. And 

congratulations on moving the Congress to alter the law, I think, 

in a way that will not allow that kind of thing to happen. 

Ms. LEDBETTER. Thank you, Senator. 

Senator CARDIN. Again, we thank all the witnesses for making 

the effort to be here. It’s certainly important for this process. This 

is the Supreme Court and it’s important we get as much information as possible. 

Ms. LEDBETTER. Thank you. 

Senator CARDIN. If I could ask the witnesses, and the witnesses 

only, to rise in order to take the oath, I would appreciate that. 

Thank you very much. 

[Whereupon, the witnesses were duly sworn.] 

Senator CARDIN. Thank you. Please be seated. 

As pointed out in the last panel, we would ask that you respect 

the 5-minute clock. Your entire written statement will be placed in 

329 

our Committee record. We will adhere to a 5-minute round for the 

members. And as I also indicated, we might be propounding supplemental questions in writing. If we do, we’d ask your courtesy in 

responding in a timely way. 

Our first witness is Professor Jack Goldsmith. Mr. Goldsmith is 

the Henry L. Shattuck Professor of Law at Harvard University. He 

holds a JD from Yale Law School, a BA and MA from Oxford University, a BA from Washington & Lee University. 

He clerked for the Supreme Court Justice Anthony M. Kennedy, 

Court of Appeals Justice J. Harvey Wilkinson, and Judge George 

Aldritch on the Iran-U.S. Claims Tribunal. 

Professor Goldsmith. 

STATEMENT OF JACK GOLDSMITH, HENRY L. SHATTUCK 

PROFESSOR OF LAW, HARVARD LAW SCHOOL 

Mr. GOLDSMITH. Thank you, Mr. Chairman, and thank you to the 

members of the Committee. Thank you for the opportunity to comment on the nomination of Elena Kagan to be an Associate Justice 

of the Supreme Court of the United States. 

I have come to know Elena Kagan well since Harvard hired me 

in 2004 during her term as dean. Based on hundreds of conversations with her, based on my reading of her scholarship, and based 

on my assessment of her very successful legal career, I believe that 

she will be a truly outstanding Supreme Court justice. 

In my written testimony I offered three reasons for this conclusion. The first concerns her immense competence, that is, her intelligence, her knowledge of the law, and the range of her relevant experiences. This point has been ably demonstrated by Elena Kagan 

herself over the past 3 days and I will not comment on it further. 

I will instead focus on the two other reasons I think she will be 

a great justice, her attitude toward the law and her temperament. 

First, her attitude toward the law. Elena Kagan’s unusual seriousness about the law was apparent in the very first conversation 

we ever had in 1994. I’m sure she doesn’t remember it, but I remember it well. I was an entry-level law professor candidate visiting the University of Chicago where Kagan was teaching at the 

time. 

Over dinner, I summarized a paper that I was presenting to the 

faculty the next day on the role of Federal courts in deciding foreign relations cases in the absence of guidance from Congress. 

Kagan responded with an avalanche—and I use that metaphor advisedly—of difficult questions that pressed me to clarify my thesis 

and that pushed me on its implications for matters racing from the 

conflicts of law, to the Erie doctrine, to the meaning of the Commerce Clause. 

It was a truly remarkable performance. I had been in the teaching market for many months but I had not encountered Kagan’s 

razor-sharp questions, questions that exposed weaknesses and inconsistencies in my thesis. Kagan quickly grasped my central point, 

questioned how it fit in with broader legal principles. 

Here was someone who took legal doctrine seriously, someone 

who by instinct cared a lot about getting the doctrine and the case 

holdings and the broader legal implications just right, and someone 

who is remarkably knowledgeable about the law and unusually 

330 

adept at legal argument. I will say that she also displayed a similar attitude toward the law countless times during our years together at Harvard in conversation, and in appointment Committee 

meetings, and in faculty workshops. 

Kagan’s view—in my opinion, Elena Kagan views the law with 

an earnest respect to have a reality, to have an autonomy, and to 

have a constraining bite. And while I do not purport to speak for 

fellow conservatives of various stripes, I think this quality is one 

reason why so many prominent conservative lawyers who know 

Elena Kagan well admire and support her confirmation. My colleague John Manning, who has known Kagan since law school, 

writes to this Committee that she is ‘‘careful and reflective in her 

legal analysis and cares deeply about law and legal craft.’’ 

Former Judge Michael McConnell, now a professor at Stanford 

Law School who has known Kagan for 20 years since they were together on the Chicago faculty, writes that ‘‘she has demonstrated 

a fidelity to legal principle, even when it means crossing her political and ideological allies.’’ 

These are extraordinary testaments to Kagan’s—these and others—and there are other similar testaments from conservative lawyers on the record—are an extraordinary testament to Kagan’s 

commitment to the integrity of law and should count in favor of her 

confirmation. 

Now I turn to her temperament. And I think she has an ideal 

temperament to be a Supreme Court justice. She has a remarkably 

open mind, she cherishes intellectual debate, and she generally 

considers all sides of an argument before exercising her judgment. 

These were some of the qualities that, in my opinion, helped 

make Harvard Law School an intellectually richer and intellectually more diverse law school under her deanship. It’s a little awkward for me to talk about this because I am actually held up as 

a conservative scholar who was hired while serving in the Bush administration. 

I’m held up as the example of how open-minded she was. It 

makes it a little awkward for me to talk about this, but I do think 

that her actions as dean, not just in connection with me but much 

more broadly, do demonstrate a commitment to the frank and open 

exchange of ideas and reveal a temperament ideally suited for the 

Supreme Court. 

I don’t think she was interested in achieving balance for balance’s sake. I think she thought that excellence in law school required an intellectual environment where every idea can flourish. 

Now, this might seem like an obvious point, but in the American 

Legal Academy, and especially among the most elite law schools, 

it is far from obvious and not at all established. 

Much attention has been paid to her hiring of conservative scholars, but this is too narrow a focus, for these hires were a small feature of a larger commitment to treating everyone and all ideas on 

the merits rather than through an ideological lens. 

My time is running short, but I would say it was not just the 

way she treated me and not just the way she treated conservatives, 

but the way she treated everyone. I agree with Michael McConnell 

that these aspects of Kagan’s deanship ‘‘demonstrate qualities of 

mind and character that are directly relevant to being a justice on 

331 

the Supreme Court, respect for opposing argument, fair-mindedness, and willingness to reach across ideological divides, independence, and courage to buck the norm. 

Thank you. 

[The prepared statement of Professor Goldsmith appears as a 

submission for the record.] 

Senator KAUFMAN. [Presiding] Thank you, Mr. Goldsmith. 

Curt White is the president of the Harvard Law Armed Forces 

Association and hails from Teliqua, Oklahoma. After graduating 

from West Point, Mr. White served as platoon leader and executive 

officer in Iraq, where he earned two bronze stars in 2004 and 2006. 

He left active duty in 2007 with the rank of captain and went on 

to serve in the National Guard. He’s currently finishing his joint 

graduate degrees in law and business at Harvard. 

Please proceed, Captain White. 

STATEMENT OF CAPTAIN KURT WHITE, PRESIDENT, HARVARD 

LAW ARMED FORCES ASSOCIATION, ARMY NATIONAL GUARD 

Captain WHITE. Thank you, Mr. Chairman and members of the 

Committee. It’s a great honor to be asked to testify at this hearing. 

I’m most grateful, however, for the opportunity to help dispel 

some of the untrue and unfair accusations of anti-military bias that 

have been leveled against Ms. Elena Kagan, a woman who, in my 

short time of knowing her as the dean of the Harvard Law School, 

went to such great lengths to show her respect for, and appreciation of, the military and military veterans. 

Rather than spending my time directly addressing the policies toward military recruitment at Harvard Law School during Ms. 

Kagan’s time as dean, issues which she has spoken to and directly 

addressed herself, I will rather spend my few minutes explaining 

my interactions with Dean Kagan, her feelings toward the military, 

and the pro-military environment that she created during her tenure as dean. 

I first heard Ms. Kagan speak in the fall of 2007 as she gave the 

welcoming address to the students of my incoming law school class. 

Sure, she had many eloquent and inspiring words, but one of her 

speech has remained particularly memorable for me. As Dean 

Kagan was ensuring that every student knew what a special class 

they had just joined, she began listing the States and countries 

from which students had come, and then began speaking to some 

of the incredible honors and accomplishments of those seated 

around me. 

As I listened to the descriptions of my classmates, I was somewhat surprised that I had been allowed to join this amazing group 

as a student at the Harvard Law School. I was more surprised, 

though, when Dean Kagan pointed out the number of military veterans seated in the room among the incoming class as a group of 

students that others should keep their eye out for and try to meet 

during the coming year. 

It was truly a proud moment to be recognized in such a way, that 

the dean of the law school saw military service as something so important that she would mention the veterans to the entire class on 

our first day. It made me immediately feel welcome and respected 

in my new environment. I later found out, from speaking to vetVerDate Nov 24 2008 12:24 Aug 23, 2011 Jkt 067622 PO 00000 Frm 00341 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\67622.TXT SJUD1 PsN: CMORC
332 

erans in other classes, that Dean Kagan made a point of highlighting military members and military service each year during 

her welcoming address. 

Later that year, I had the rare opportunity as a first-year law 

student to spend an evening visiting intimately with the dean. 

Around Veterans Day, Dean Kagan hosted a dinner for military 

veterans and their families. During this dinner she spoke very little, other than to express her deep gratitude to the current and 

former service members seated at the table. 

The evening consisted mainly of Dean Kagan asking about our 

military service, listening intently to our stories, and expressing 

her sincere appreciation for our service. It was truly moving to 

have the dean of the law school take an evening out of her schedule 

to show her thanks to our small group of veterans. More, she made 

each of us feel as if she was the one who was honored to have the 

opportunity to dine with us and visit with us for the night. This 

event which Ms. Kagan pioneered during her time as dean meant 

a great deal to the veterans at the school and has luckily been continued by her successor. 

Also, while Dean Kagan was leading the law school, numerous 

other attempts were made to emphasize the service of the military 

veterans at the school, from articles published on the school web 

site, to highlights of veterans and their stories in alumni newsletters. 

During the time I knew her as dean of the Harvard Law School, 

Ms. Kagan’s support of the military was clearly evident. Over the 

past 3 years, I’ve been a part of numerous conversations between 

veterans at the Harvard Law School where all have spoken warmly 

of her graciousness toward the veterans since we arrived there. 

It might seem that this would not be a conversation that we 

would need to have with each other on multiple occasions, but such 

was the importance of Dean Kagan’s words and actions toward us 

to our overall experience at the law school that it was something 

that we could not help but discuss frequently. 

It is, thus, my honor to have the opportunity to answer anti-military accusations made against Ms. Elena Kagan, who again did so 

much to make the experience of myself and my fellow veterans 

what it was, and who did so much to make us feel welcome, appreciated, and as she has mentioned earlier in her testimony, indeed 

revered while she was the dean. 

With that I’ll conclude my remarks. 

[The prepared statement of Captain White appears as a submissions for the record.] 

Senator KAUFMAN. Thank you, Captain White. 

Professor Robert Clark is the Harvard University Distinguished 

Service Professor and Austin Wakeman Scott Professor of Law, and 

the former dean and professor of law at the Harvard Law School. 

He’s also a former commercial and corporate lawyer and faculty 

member of the Yale Law School. He received his BA from Marinaw 

College, his Ph.D. from Columbia University, and his JD from Harvard Law School. 

Professor Clark. 

333 

STATEMENT OF ROBERT C. CLARK, HARVARD UNIVERSITY 

DISTINGUISHED SERVICE PROFESSOR, AUSTIN WAKEMAN 

SCOTT PROFESSOR OF LAW, AND FORMER DEAN, HARVARD 

LAW SCHOOL 

Professor CLARK. Thank you, Senator and members of the Committee. I support the appointment of Elena Kagan to the court and 

I’d like to offer some perspectives based on my own experience as 

her colleague and her predecessor in the role of dean at Harvard 

Law School. 

I believe her superb performance as dean should be a positive 

factor in your decision-making. Now, I admit that the case for Solicitor General Kagan has many parts. First, she has demonstrated, 

I think, to all of you in the last few days, as she clearly demonstrated to me personally, she is extremely bright. I know this 

from having taught her and observed her and graded her in the 

mid-’80s and from having studied her scholarship in the late 1990s 

when deciding whether to support—which I did—her appointment 

to our faculty. 

Moreover, she thinks like a lawyer, and I, at least, mean this in 

a good way. She makes sure she understands the law and the facts 

very closely and accurately and precisely and puts them together 

carefully before she draws her conclusions. 

I think that a lawyer who actually does this, as she does, is unlikely to get too creative or loose when she makes decisions as a 

judge. She will feel obligated to follow the law, not make it up. 

Furthermore, she has relevant experience with the law not only 

in her recent experience as Solicitor General, but in my view also 

in her many years of spectacularly successful teaching of constitutional law and administrative law, which are very relevant subjects 

to this position that she’s about to get, I hope. 

This teaching experience tends to be neglected, I know, when 

people discuss her qualifications for the court, but I think it’s relevant because she knows legal doctrines inside and out in a way 

that very few practicing lawyers do. 

But I want to stress now her performance as an institutional 

leader and explain why I think the skills and attributes she 

brought to her role as dean and developed while dean would benefit 

her and the court if she’s confirmed. I was dean for 14 years, a long 

time, 1989 to 2003, and strongly supported Elena Kagan as the 

choice to be my successor. 

From my viewpoint, once she became dean she did a fantastic job 

of taking positive changes and initiatives that had been begun in 

the 1990s and building on them. She was not one who tried to take 

over and change the paradigm, as so many new leaders do, or to 

take things in an ideological or particular direction. She built on 

what the faculty had come to want to do. 

For example—I’ll give three examples, if I have time. We hired 

a large number of faculty members, including some top scholars 

from leading schools during her tenure. The number went up about 

two dozen in just 6 years, from about 1981. That is, in a law school 

context, kind of amazing. 

In my view it’s a positive indicator because in the case of a very 

complex law school like Harvard with multiple constituencies, it 

says something about the ability of the dean to build consensus. 

334 

The appointments process is relentlessly democratic: you need twothirds of the voting faculty to approve an appointment. 

In a strong-willed faculty, which we have, with widely varying 

views about what really counts as good scholarship, you need a 

dean who can understand many different points of view and then 

encourage people to work together. Dean Kagan did this successfully. I watched her learn to do it even better as she proceeded. She 

wasn’t just political, she actually learned to understand and appreciate many different points of view. 

Similarly—this is dealing with another constituency—she took 

over and led a very successful fundraising campaign. In the late 

1990s, under my guidance the law faculty developed an ambitious 

long-term strategic plan. We then proceeded to get university-level 

approval for a campaign to fund it—not easy—and I spent a couple 

of years getting initial gifts and commitments. Then in June of 

2003, my last month in office, we had a so-called kick-off of a public 

phase of this campaign. I announced we had already raised over 

$170 million in commitments and gifts, and gave, standing right 

next to me the about-to-become dean Elena Kagan and her team, 

the hard task of getting that number up to $400 million. 

Well, flash forward five-plus years later, the fall of 2008. The campaign closed, having greatly exceeded its goal by reaching $476 

million, which was another record in law school fundraising. We 

had done that already 10 years previously. 

This fundraising success, which is of fundamental importance to 

an institution like Harvard Law School that does not depend much 

on foundation grants or any government grants, would not have 

happened without Elena Kagan’s skill in seeing other people’s perspectives. I can say this from personal experience: in order to gain 

support from 23,000 alumni and friends of the school, which the 

law school did during this campaign, its dean had to learn to understand and appreciate the viewpoints of many very different people out there who have strongly varying attitudes about what the 

school was doing and planning to do. I watched her get better and 

better at this over time, and I heard reports from old alums that 

I knew already. I believe that her experience and success in this 

role will help her do a better job as justice of the court. 

And as with faculty and alumni, so with students. Dean Kagan 

did a superb job of boosting the mood and morale of the student 

body. She did this with gestures great and small, everything from 

an ice skating rink and free coffee—— 

Senator KAUFMAN. Professor, could you wrap it up, please? 

Professor CLARK. OK. To substantive revamp of the first-year 

curriculum. I could go on listing her other achievements, but given 

the time I won’t. I will note that I have an op-ed piece from the 

Wall Street Journal that I’d like to have put in the record that 

deals with the military recruiting issue. That’s not my theme 

today. My concluding point is, I think the Committee’s decision 

about Solicitor General Kagan ought to be positive. 

Yes, we may not—it may happen that as a justice she’ll sometimes fill in the blanks of received common law in a way that some 

of us don’t like, but as—and as history shows it’s really hard to 

predict accurately what a future justice will do, but I think in this 

case worrying too much about the downside possibilities is to miss 

335 

the forest for the trees. She’s an excellent choice for the court and 

should be confirmed. 

[The prepared statement of Professor Clark appears as a submission for the record.] 

Senator KAUFMAN. Thank you, Professor Clark. 

Gregory G. Garre is a partner in the Washington, DC office of 

Latham & Watkins. He served as the 44th Solicitor General of the 

United States under President George W. Bush. 

Prior to his unanimous confirmation as Solicitor General by the 

Senate, Mr. Garre served as principal Deputy Solicitor General and 

then as Acting Solicitor General. She served as a law clerk for 

Chief Justice William H. Rehnquist, and to Judge Anthony J. 

Scalia of the U.S. Court of Appeals for the Third Circuit. 

Mr. Garre received his BA from Dartmouth College and JD from 

George Washington University Law School, where he was editor-inchief of the Law Review. Mr. Garre. 

STATEMENT OF GREGORY GARRE, PARTNER, LATHAM & WATKINS, FORMER SOLICITOR GENERAL OF THE UNITED 

STATES 

Mr. GARRE. Thank you, Mr. Chairman, Ranking Member Sessions, members of the Committee. It’s an honor to appear before 

you today. 

I had the great privilege of serving as Solicitor General of the 

United States at the close of the last administration, and like all 

former Solicitors General going back nearly a quarter of a century 

over the course of the Reagan, Bush I, Clinton, and Bush II administrations, I’m pleased to support the nomination of Solicitor General Kagan to be Associate Justice of the Supreme Court. My testimony today is focused on how General Kagan’s service as Solicitor 

General will serve her well on the Supreme Court. 

Service as a Solicitor General is by no means a necessary, or in 

itself sufficient, qualification to sit on the Supreme Court, but the 

Office of the Solicitor General offers a valuable training ground for 

service on the court. In fact, the Solicitor General is sometimes referred to as the tenth justice, although as many former Solicitors 

General would say, and I can attest, never by the justices themselves. 

The Solicitor General is enmeshed in virtually all aspects of the 

court’s business. She and her lawyers argue in about two-thirds of 

the cases appearing before the court each term. She personally argues the most important and usually most contentious cases before 

the Supreme Court each term, formulating and advancing the positions that serve the best interests of her client, the government. 

By all accounts, General Kagan has served the government well 

before the Supreme Court. Importantly, she managed the challenging transition from one administration to the next, with the 

best interests of the Solicitor General’s Office and the United 

States in mind, and minimizing changing positions before the 

court. 

One vitally important area where the government’s positions 

have remained essentially unchanged is in litigation involving the 

war on terror. General Kagan has successfully briefed and argued 

336 

many significant cases in this area of law, including the decision 

in the case Holder v. Humanitarian Law Project, in which she successfully defended the constitutionality of the material support 

statute before the Supreme Court this term, as well as other cases 

involved in the handling of wartime detainees. 

It is not possible to work on these cases without gaining a deep 

appreciation for the national security challenges facing this country, and for the men and women who confront these challenges in 

the armed forces on a daily basis. I believe this experience will 

serve Solicitor General Kagan well. 

It is also significant that General Kagan has earned the confidence, trust, and admiration of the enormously talented career 

lawyers in the Office of the Solicitor General. It’s hard for me to 

think of a higher compliment when it comes to her service as Solicitor General, nor better indication that she possesses the intellect, 

fair-mindedness, and dedication to duty that Americans expect in 

a justice of the Supreme Court. 

Now, it’s true that General Kagan lacks judicial experience, but 

history shows that prior judicial experience is by no means a prerequisite to distinguished service on the Supreme Court, especially 

for someone like General Kagan with a varied background in the 

law and numerous accomplishments when she goes on the court. 

Some 40 individuals have joined the Supreme Court without 

prior judicial experience. I had the great privilege to clerk for one 

of them, Chief Justice William Rehnquist, and I am confident that 

his lack of prior judicial service in no way impeded his enormous 

accomplishments on the court. 

The Constitution grants the President broad leeway in determining how to carry out the enormously important responsibility of 

choosing a justice for the Supreme Court. One can hold different 

views on the important legal issues facing the country and still conclude that General Kagan is well-qualified to serve on the Supreme 

Court. Like my predecessors as Solicitor General going back over 

the course of the past four administrations, I support Solicitor General Kagan’s nomination to be an Associate Justice, and I hope that 

this Committee will do so, too. 

Thank you. 

[The prepared statement of Mr. Garre appears as a submission 

for the record.] 

Senator KAUFMAN. Thank you, Mr. Garre. 

Ronald Rotunda is the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence at Chapman University School 

of Law. Previously, he was professor at George Mason University 

School of Law and the University of Illinois School of Law. He received his BA from Harvard College and his JD from Harvard Law 

School. He subsequently clerked for Judge Walter Mansfield in the 

Second Circuit Court of Appeals. 

Professor Rotunda. 

STATEMENT OF RONALD ROTUNDA, THE DOY & DEE HENLEY 

CHAIR AND DISTINGUISHED PROFESSOR OF JURISPRUDENCE, CHAPMAN UNIVERSITY SCHOOL OF LAW 

Professor ROTUNDA. Thank you very much. If you have any questions, speak up. My tie is kind of loud, so it’s hard for me to hear. 

337 

It’s been 40 years since a Solicitor General has been nominated 

to the Supreme Court, since the late great Thurgood Marshall, the 

grandson of a slave. Since then, among other things, the law has 

changed. There’s now a special law dealing with such situations, 

455 U.S. Code—that is, 28 U.S.C.A. Section 455(b)(3). 

Basically it provides that if the justice has served in government 

employment, in such capacity participated—I’m paraphrasing, 

now—as an advisor concerning the proceeding or expressed an 

opinion concerning the merits of the particular case or controversy, 

she must disqualify herself. 

That’s augmented by Section 455(a) that says you should disqualify yourself if the impartiality might reasonably be questioned. 

The Senate was, I think, pretty serious about this law in the House 

because they provided, in Section 455(e), that the parties cannot 

waive this particular disqualification, the justice must disqualify 

herself. Congress enacted the law in response to a case called Laird 

v. Tatum in 1972. 

The respondents in Laird moved to disqualify the new Justice 

Rehnquist because he had testified on a particular legal issue relating to this case when he was at the Justice Department and expressed a statement about the merits of a case. He wasn’t a lawyer 

on the brief. He wasn’t even in the Solicitor General’s Office, he 

was Office of Legal Counsel. 

Justice Rehnquist, in his opinion, acknowledged—he said they’re 

correct in stating that during the course of my testimony and on 

other occasions I expressed an understanding of the law, as established by the decided cases, that was contrary to the position that 

the respondents took, but he refused to disqualify himself. Under 

the law at the time, I think that was correct. So people were upset 

with that, so they changed the law. 

Now they had this much broader language. If they participated 

not simply as counsel but as an advisor, whether his opinions are 

public or private, whether they’re oral or written, if he’s expressed 

an opinion concerning the merits of a particular case or controversy, he must disqualify himself. There are very few cases interpreting this, but those that do exist are fairly broad. 

First of all, it’s clear under the statute this applies to U.S. Supreme Court justices, not just the others. So Solicitor General 

Kagan, if she’s on the court, will obviously disqualify herself in all 

cases in which she’s counsel of record, but it doesn’t matter that 

she’s no longer counsel of record, that the Deputy Solicitor General 

has taken over. She also has to recuse herself if she was an advisor 

concerning the proceeding, that is, gave advice about the particular 

proceeding or expressed an opinion concerning the merits of a particular case or controversy. 

The statute defines proceeding very broadly to include pre-trial 

matters. The Supreme Court web page acknowledges this. It says 

that if you’ve earlier been involved in the case as a lawyer you 

must disqualify yourself, whether or not you’re on the record. The 

pre-trial—that is, all stages of litigation, including the pre-trial. 

One of the few cases interpreting the section is United States v. 

Iron—in 1994. It involved a U.S. Attorney who became a district 

judge. He was U.S. Attorney at the time of an investigation before 

338 

there was an indictment. It eventually led to indictment and a 

criminal trial. 

The judge was not personally involved in the investigation, it 

simply occurred under his watch. The Ninth Circuit said you have 

to disqualify yourself. The Ninth Circuit acknowledged he wasn’t 

personally involved, but said it imputes to the U.S. Attorney the 

knowledge and acts of his assistants. Now, that would be everybody, of course, I think, in the Solicitor General’s Office. 

Several years ago under the Bush administration, the Solicitor 

General’s Office coordinated and had advice on many, perhaps all, 

of the detainee cases then in the lower courts. I don’t know what’s 

done now, but if the keep the same procedure she would have to 

disqualify herself in all of the detainee cases, even though they’re 

not yet at the appellate level. Newspapers have reported that she 

gave oral advice and had input into briefs filed in the Arizona immigration case. 

If that’s true—I don’t know, we’ll ask her—she should disqualify 

herself if that case ever comes to the Supreme Court. If the administration asked her advice on the constitutionality of proposed legislation in connection with contemplating proceeding, either where 

the United States would be plaintiff or defendant, if you have a 

particular proceeding, a particular thing in mind, she’d have to disqualify herself. 

Now, she’s only been Solicitor General for, what, less than 2 

years. I don’t think there will be a lot of cases like this. I would 

think within the next year or two she would—this qualification 

would end. But until that time, in cases involving the United 

States, she should disqualify herself. 

Thank you very much. 

[The prepared statement of Professor Rotunda appears as a submission for the record.] 

Senator KAUFMAN. Thank you, Professor Rotunda. 

Robert Alt is the Senior Legal Fellow and Deputy Director of the 

Center for Legal and Judicial Studies at The Heritage Foundation. 

He’s also a fellow in Legal and International Affairs of the John M. 

Ashbruck Center for Public Affairs at Ashland University in Ohio. 

He received his bachelor’s degree from al Souza Pacific University 

and his JD from the University of Chicago Law School. 

Professor Alt. 

STATEMENT OF ROBERT ALT, SENIOR FELLOW AND DEPUTY 

DIRECTOR, CENTER FOR LEGAL AND JUDICIAL STUDIES, 

THE HERITAGE FOUNDATION 

Mr. ALT. Thank you, Mr. Chairman and Ranking Member Sessions, for inviting me to testify. 

As these hearings open, numerous members of this Committee 

lamented what was variously described as the judicial activism or 

corporativism of the Roberts court. Indeed, TV viewers who tuned 

in late could be excused if they believed they were watching reruns of the confirmation hearings for John Roberts or Samuel 

Aleto, given the frequent references to those justices. 

Singled out for special condemnation were the Roberts court’s decisions in Citizens United and Ledbetter. The complaints raised 

closely tracked those of liberal activists who issued reports which 

339 

both highlighted their grievances and served as talking points on 

these cases and on the Roberts courts in anticipation of these hearings. 

The story of a conservative activist pro-corporatist Roberts court 

may sound compelling at first blush, particularly with its repetition 

and regrettable distortion of the cases involved, but it is just a 

story, and a fictional one at that. 

Take, for example, the case of Citizens United. In his State of the 

Union Address, the President chided the Supreme Court for reversing a century of law. Multiple members of this Committee complained at the beginning of this hearing about the Roberts court 

overturning longstanding precedent. But the suggestion that the 

court overturned a century of precedent just isn’t true. 

The leading case in this area of campaign finance law is Buckley 

v. Vallejo. In that case, and time and time again thereafter, the 

court affirmed the First Amendment free speech rights of individuals, groups, and incorporated groups making independent expenditures. Since Buckley, the only interest that the court has accepted 

as being sufficient to justify governmental regulations closely 

drawn is preventing the actual corruption or the appearance of corruption. This has been the consistent standard applied by the 

court, including in cases in which the free speech rights of corporations were recognized. 

There was just one outlier case, Austin v. Chamber of Commerce, in which the court, for the first and only time, embraced a kind of 

speech equalization theory to permit restrictions on corporate independent expenditures in an opinion which ignored well-established 

precedent. 

But this case was the jurisprudential equivalent of an orphaned 

eunuch: it had no jurisprudential parents and it bore no meaningful jurisprudential children. Even after Austin, the court returned 

to rejecting rationales for government regulation outside of preventing actual corruption or the appearance of corruption. 

The court in Citizens United overturned precedent, yes, but it did 

not overturn a 100-year-old precedent that was well-revered or established. It overturned a 20-year-old case that was an outlier in 

the law and that stood as contrary to the leading case on the topic 

and virtually every other case on the topic decided and it did so in 

the service of a well-grounded approach to the Constitution, one 

which recognizes that political speech is really the core speech protected by the First Amendment. 

Contrary to the misguided claims bandied about, this case is not 

a sin against stare decisis, but rather comported with the proper 

understanding of that term by adhering to the multiple precedents 

which Austin itself ignored and abrogated. 

Or take Ledbetter. President Obama said that Ledbetter ‘‘didn’t 

know that she was getting paid less. When she discovered it, she 

immediately filed suit to get back pay, and the suggestion was 

somehow that she should have filed suit earlier.’’ 

Just this week, Senator Feinstein said that she found it shocking 

that ‘‘the court would hold to a technicality when a woman couldn’t 

possibly have known, during the time that the tolling was taking 

place, that she was disadvantaged, and when she learned she was 

disadvantaged it was too late.’’ 

340 

But it just isn’t true. As the court noted, Ledbetter conceded in 

her own deposition, which I have right here, that she knew about 

the alleged pay inequity more than 5 years before she filed suit. 

Her novel arguments were necessary in order to evade the statute 

of limitations that were imposed by Congress, not by the courts. 

This raises a very important issue. In many of the cases that 

have been used by liberal activists and most recently by members 

of this Committee to allege activism by the court, the crux of the 

argument is that the person objecting does not like the policy outcome. 

But the outcomes in these cases were dictated by policies of Congress and dutifully carried out by the courts. If Congress disagrees 

with its own policy it can change it, as it did in the wake of the 

Ledbetter case. Far better this than courts undermining the rules 

that Congress has drafted in order to impose its own view of what 

policy is. Now, that would be activism. 

There is no need to make a papier maˆ che ́ Mephistopheles of activism. There’s real activism in the world. There are even examples 

of real pro-business activism decisions by the Supreme Court, such 

as its decision in BMW v. Gore, in which Justice Stevens found in 

the Due Process Clause, probably hiding behind some emanations 

and penumbra, a constitutional cap on punitive damages, a position rejected by conservative justices who sought to apply the law 

according to its original meaning. 

But the claims of a concerted conservative pro-corporatist Supreme Court, while good political talking points and an able diversion from questions about Dean Kagan’s failure to adhere to the requirements of Federal law in the Solomon Act, are just not true. 

Thank you. I welcome your questions. 

[The prepared statement of Mr. Alt appears as a submission for 

the record.] 

Senator KAUFMAN. Thank you, Mr. Alt. 

Ed Whelan is the president of the Ethics and Public Policy Center. He served as principal Deputy Assistant Attorney General for 

the Office of Legal Counsel under President George W. Bush. He 

clerked for Judge J. Clifford Wallace in the U.S. Court of Appeals 

for the Ninth Circuit, and for Supreme Court Justice Antonin 

Scalia. Mr. Whelan received his undergraduate degree from Harvard University, his JD from Harvard Law School. 

Mr. Whelan. 

STATEMENT OF ED WHELAN, PRESIDENT, ETHICS AND 

PUBLIC POLICY CENTER 

Mr. WHELAN. Thank you, Senator Kaufman. Thank you, Senator 

Sessions. 

Various supporters of Elena Kagan’s nomination have sought to 

bolster their position by flinging assertions that the Supreme 

Court, under Chief Justice Roberts, has engaged in conservative judicial activism. Those assertions are badly confused. A sober assessment of the current reality and future risk of judicial activism 

provides compelling reason to vote against the Kagan nomination. 

Since the Warren court’s heydays in the 1960s, the court has entrenched the Left’s agenda and usurped the realm of representative 

government through a series of activist rulings on a broad range 

341 

of matters, including abortion, secularism, obscenity and pornography, gay rights, criminal procedure, national security, and the 

death penalty. These monuments of liberal judicial activism have 

deeply transformed—and I would submit degraded—American politics, institutions, and culture. 

Even worse, new edifices of Leftist ambition are in the works. 

Elena Kagan is a predictable vote, quite possibly the decisive fifth 

vote, in favor of inventing a Federal constitutional right to samesex marriage. Reasonable people have different views on whether 

and how public policy should accommodate same-sex relationships, 

and that’s a matter that’s being worked out through the democratic 

processes. 

But the court’s invention of a constitutional right would not only 

radically redefine the central social institutions of marriage and 

the family for the entire Nation, it also branded as bigots and inevitably would coerce and penalize all those Americans who understand the essence of marriage as a union of a man and a woman. 

Ms. Kagan would also provide the fifth vote to continue the 

court’s unprincipled practice of selectively relying on foreign law to 

alter the meaning of the Constitution, one part of a broader, 

transnationalist agenda that would displace the constitutional processes of representative government and dilute cherished constitutional rights to free speech and religious liberty. 

By contrast to the decades-long reality and ongoing threat of liberal judicial activist rulings, the overall picture of supposed conservative judicial activism pales into virtual nothingness. Let’s consider a remarkable colloquy that took place just last week on the 

Senate floor among three Senate Democrats, all members of this 

Committee, though I see that unfortunately none of them is able 

to be here right now. 

Each of the three Senators complained about the supposed conservative activism of the Roberts court, each offered a supposedly 

compelling example of that activism. Senator Cardin gave as his 

example of judicial activism the Supreme Court’s ruling in 

Ledbetter. In that case, the court majority ruled that the time period for filing a charge of employment discrimination with the 

EEOC begins when the discriminatory act occurs and that it isn’t 

retriggered by later non-discriminatory acts. That ruling flowed directly from four Supreme Court precedents over the previous three 

decades. I’m quite sure that Mr. Garre, who signed the brief in that 

case for the government, will attest and argue for the exact position the Supreme Court adopted—will attest to that. 

The court in Ledbetter expressly left open the question ‘‘whether 

Title 7 suits are amenable to a discovery rule, whether, that is, in 

those instances in which the employer was not aware that she’d 

been discriminated against, the charging period would instead run 

from the time that she discovers the discrimination.’’ 

But here’s what Senator Cardin had to say about the Ledbetter 

ruling: ‘‘This defies logic. How can a person bring a claim when 

they don’t know they’re being discriminated against? It makes no 

sense.’’ 

In short, Senator Cardin’s vehement denunciation of the 

Ledbetter ruling rests on his simply misreading the case. Three 

years after the court’s ruling in Ledbetter, Senator Cardin thought 

342 

that the court had rejected applying a discovery rule to the charging period in Title 7 suits. He also evidently didn’t understand that 

Mrs. Ledbetter had waited more than 5 years after she learned of 

the discrimination to file her EEOC charge. 

As respected legal analyst Stuart Taylor has written, President 

Obama and other Democrats were able to make the court’s ruling 

against Ledbetter seem outrageous only by systematically distorting 

the undisputed facts. 

Next in the Senate colloquy was Senator Whitehouse. His showcase ruling was a 2008 case in which the court ruled, by a 5:3 vote, 

that punitive damage is awarded against Exxon in connection with 

the Exxon-Valdez oil spill was excessive as a matter of maritime 

common law. 

Senator Whitehouse’s discussion of the case suffers from a few 

unfortunate omissions. First, the author of the majority opinion 

that he decries was the liberal Justice Suter. Second, Justice Ginsburg, in dissent, describes Suter’s opinion as ‘‘well-stated and comprehensive,’’ and called the case ‘‘a close one.’’ 

Third, Senator Whitehouse leaves the impression that the court’s 

general review of punitive damages awards divides justice along 

ideological lines, but in fact Justices Scalia and Thomas are the 

strongest opponents of the position that the Constitution imposes 

general substantive limits upon punitive damages. 

I see that my time is running out. I’d be happy to address any 

questions on the arbitration case that Senator Franken had so 

much to say about, inaccurately, during the confirmation hearing. 

But let me conclude by simply noting that it’s entirely proper that 

Supreme Court decisions be subjected to careful scrutiny and, 

where appropriate, vigorous criticism. 

But as the colloquy I’ve discussed and detailed more extensively 

in my written comments illustrates, so many of the criticisms of 

the Roberts court for supposedly engaging in conservative judicial 

activism are of dismal quality and invite the suspicion that they’re 

motivated by crude political considerations. Genuine concerns 

about judicial activism cut strongly against the Kagan nomination. 

Thank you. 

[The prepared statement of Mr. Whelan appears as a submissions for the record.] 

Senator KAUFMAN. Thank you, Mr. Whelan. 

Stephen Presser is the Raoul Berger Professor of Legal History 

at Northwestern University School of Law, and holds a joint appointment at Northwest’s Kellogg School of Management. He’s a 

graduate of Harvard College and Harvard Law School. Following 

graduation, he served as a law clerk for Judge Malcom R. Willkey 

of the Court of Appeals for the DC Circuit. 

Professor Presser. 

STATEMENT OF STEPHEN PRESSER, RAOUL BERGER PROFESSOR OF LEGAL HISTORY, NORTHWESTERN UNIVERSITY 

SCHOOL OF LAW 

Professor PRESSER. Thank you, Mr. Chairman. I’ve been asked to 

address the propriety of a Supreme Court justice’s turning to international or foreign authority in order to interpret the Constitution 

of the United States, a point to which Mr. Whelan alluded. 

343 

This question is really part of a broader problem, which is what 

a Justice is supposed to do when a Justice explicates the meaning 

of constitutional provisions. Here, we should return to first principles, and in particular return to the most important statement on 

judicial review, that offered by Alexander Hamilton in Federalist 

‘78, quoting the Baron de Montesquieu, to the effect that ‘‘there can 

be no liberty when judicial function of government is not separated 

from the legislative.’’ 

To put it in the vernacular—and we talked about this—it’s the 

job of justices to judge, not to make law. In the past few years 

we’ve seen several instances of justices turning to international or 

foreign law to make American constitutional law. Thus, Justice 

Kennedy, turning to the law of the European community, found 

support for his view, departing clearly from prior precedent, that 

consensual homosexual acts could not be criminally punished. 

In a similar manner, recent Supreme Court decisions, relying in 

part on European and other international authority, have decided 

that it is unconstitutional to apply the death penalty to minors and 

that it is unconstitutional to apply the death penalty to persons 

suffering from mental retardation. 

Now, the results in all of these cases might be wise social policy, 

but they all represent really legislative acts by the court. In America, where the people are supposed to be sovereign, changes in such 

social policies are supposed to be for the popular organ, the legislature, or for the ultimate popular organ in action, amending the 

Constitution. 

Turning to international or foreign authority then as a means of 

reworking constitutional provisions or overturning prior precedents 

betrays the nature of our Federal system and flies in the face of 

the rule of law. It should be acknowledged of course that, from the 

beginning of our history, Federal judges and Supreme Court Justices have used international authority in order to reach judicial 

decisions, and indeed even to aid in the interpretation of provisions 

of the United States Constitution. But there’s a profound difference 

between this use of international law and that use of Justice Kennedy’s referred to earlier. 

In the early years of our Republic and subsequently, judges and 

justices have quite properly sought to understand and apply the 

Law of Nations, a body of super-constitutional principles that apply 

to every nation and that have been the subject of work by international scholars for hundreds of years. 

But this recourse to the ancient Law of Nations, this traditional 

recourse to international law, is very different from turning to recent international or foreign jurisprudence to implement policies 

and rules, very different from those previously prevailing. One is 

a longstanding legitimate use of international authority, the other 

is a usurpation of the sovereignty of the people. 

As you members of the Senate examine the qualifications of General Kagan for this awesomely responsible position, you must ask 

yourselves whether she is a person who believes that it’s appropriate to turn to international or foreign authority to alter the 

meaning of the Federal Constitution. 

There are some troubling comments on this issue made by thenDean Kagan about 2 years ago when she was introducing Justice 

344 

Kennedy at Harvard. Dean Kagan praised Kennedy as a jurist who 

addressed constitutional questions from an independent perspective 

and as one who understood that questions of constitutional interpretation had to be made pursuant to a realization that the United 

States is part of an international community. 

Dean Kagan observed that Justice Kennedy has emerged as a 

fiercely independent voice on cases involving all manners of legal 

issues. Further, Dean Kagan remarked that ‘‘I would point to Justice Kennedy’s unique and evolving vision of law. Far from swinging between positions that are defined by others,’’ she said, ‘‘Justice 

Kennedy consistently charts his own course.’’ It seems very likely 

to me that, in her words to introduce Justice Kennedy then, Dean 

Kagan laid out her own jurisprudential philosophy. 

Her praise of Justice Kennedy’s jurisprudence and his independence could certainly be interpreted as Ms. Kagan is suggesting, 

both that it was appropriate for Justices to formulate their own notions of what the Constitution should mean, and that it was appropriate for Justices to change the meaning of the Constitution by 

reference to emerging international norms and policies. Both of 

these ideas are not what a Justice is supposed to do, and I do believe it is your task to discover if that is in fact what General 

Kagan believes. If she does, I think you have cause to hesitate before voting to confirm her as a justice of the Supreme Court. 

In a country such as ours, governed by the rule of law, it’s not 

the job of a judge or justice to have a unique and evolving vision 

of law or to chart his own or her own course. It is, to the best of 

his or her ability, to determine what the law is and then to follow 

it. Before you vote to confirm a Justice Kagan, you must be sure 

that she understands that. 

Thank you. 

[The prepared statement of Professor Presser appears as a submission for the record.] 

Senator KAUFMAN. Thank you, Professor Presser. 

I’m to start with the round, 5 minutes each. I’ll start with me 

and then Ranking Member Sessions, and so on. 

Professor Goldsmith, in your testimony you spoke briefly about 

your view of the relevance of prior judicial experience to serve on 

the Supreme Court. Can you elaborate on that, and also on whether there might be a down side to having the entire court come from 

an appellate court background? 

Mr. GOLDSMITH. Thank you, Senator. In my written testimony I 

stated that I thought it was irrelevant that she had no prior judicial—that Elena Kagan had no prior judicial experience, and I stated, as Greg Garre did, that many of our most distinguished Justices did not have—Chief Justice John Marshall, Chief Justice William Rehnquist, Chief Justice Earl Warren, and I could go on and 

on. I think Greg said there were 65. I don’t have a particular view 

about whether it’s a good or bad thing to have had prior appellate 

experience. 

Senator KAUFMAN. Thank you. 

Captain White, let me begin by recognizing your service to the 

country as a platoon leader and—your service to us all, and we 

thank you for it. 

345 

The testimony this morning that General Kagan was welcoming 

and accommodating to military veterans. Can you tell us a little bit 

more about that? 

Captain WHITE. So, during my time there—I say it really started 

on my first day with me. I think for most of the veterans I have 

spoken to, we all went to—we all went into Harvard with some bit 

of trepidation, going to an Ivy League school which traditionally, 

I think, don’t have the reputation of being as supportive of the 

military as maybe some other institutions in the country. 

So it was really wonderful on that first day to be recognized for 

our service in front of our classmates and for that to be pointed out 

and for then Dean Kagan to show her gratitude toward us. So that 

was really, I guess, what started it. And then I think after that 

being there while articles were published in the school newspaper 

as well as on the school website, highlighting veterans and their 

stories, was something that just really went toward creating an environment that showed that even whatever the policies were regarding military recruiting in the Office of Career Services it was 

an administration headed by Dean Kagan that was very supportive 

of the military in general and very much appreciated the service 

of the veterans that were there at the law school. 

Senator KAUFMAN. Thank you. 

Professor Clark, you preceded Dean Kagan as dean of the school. 

Can you give us a brief description of the chronology of the law 

school’s interaction with military recruiters in connection with the 

Solomon Amendment? 

Mr. CLARK. Yes. Well, as you know the law school adopted its 

nondiscrimination policy rule that said that each person that wanted to recruit and use the OF COURSE had to sign the statement 

way back in 1979, long before I became dean. After the don’t ask, 

don’t tell policy emerged, the practice developed that the military 

recruiters couldn’t sign in, they couldn’t use OF COURSE, but we 

quickly enlisted the veterans students association as a vehicle for 

getting military recruiters on campus. And the idea there was fairly simple, but it is possible to express disagreement with a policy 

while still showing respect and appreciation for the military. 

The Solomon Amendment came out in 1996 and in 1998 we got 

an inquiry from, I think it was the Air Force asking us to explain 

why we thought we had complied with the regulations under that. 

We sent them a letter and they said, ‘‘this seems OK.’’ And it was 

like that until about December 2001, not surprisingly a few months 

after 9–11 when perhaps with new members or perhaps because of 

the new environment we got another letter saying, we no longer 

see how this constitutes the requisite access what your practice is 

there and we’re going to recommend to the Department of Defense 

that the funding be cut. 

So I consulted at great length with the president of Harvard, 

Larry Summers, and the general counsel and with student groups 

of all sorts and faculty members on the placement committee and 

we tried to respond to that letter. They were not satisfied and cut 

it short, I guess, and in July 2002 we said, OK, we’ll let them use 

the OF COURSE and then issued a statement to the student body 

in August explaining the history and what was going on and said, 

you’re still free to express your views on the don’t ask, don’t tell 

346 

policy, but this is the way it’s going to be. And so that is the practice that she took over. 

And, in effect, what she did after the Third Circuit opinion was 

to simply revert back to the old pattern which had existed for, I 

don’t know, a very long time and seemed to work while the case 

was on appeal to the Supreme Court. But changed when she got 

the msg from that Department of Defense that despite all this she 

was not going to—they were not—they were going to try to cutoff 

Harvard’s funding. 

And as my letter to the Wall Street Journal—my op-ed pointed 

out, this was really a matter of law school expressing a policy 

about discrimination. We’re a law school, after all. And we did not 

feel it was our—I did not feel it was our right to put the whole university at risk of funding, you know, by maintaining a policy. Especially, you know, it didn’t matter at all to the law school, but it 

mattered enormously to the medical school and the school of public 

health which got a lot of funding from the various government departments that were covered in the Solomon Amendment. 

Senator KAUFMAN. Thank you, Professor Clark. 

Ranking Member Sessions. 

Senator SESSIONS. Thank you, Mr. Chairman. 

A good place for a professor of law to be who is not a lawyer. 

Mr. CLARK. Thank you. 

Senator SESSIONS. Your remarkable ascendency here. 

Mr. Goldsmith, do you consider yourself a conservative? 

Mr. GOLDSMITH. Yes, I do. 

Senator SESSIONS. I felt your book on terrorism was a sea or an 

island of insanity maybe and a sea of some hysteria around. And 

I have quoted from it a number of times in a debate over how to 

handle these issues and I respect you for it. But let me just ask 

you this, I believe Manning and Mule were hired with you by Dean 

Kagan? 

Mr. GOLDSMITH. We were all hired within a few years, yes, sir. 

Senator SESSIONS. Of her appearance on campus. Are you aware 

of any other recognized conservative who was hired under her tenure? 

Mr. GOLDSMITH. Well, we don’t really think about it as much as 

people outside the law school do about conservatives and nonconservatives. And I don’t know the political or legal views of a lot 

of my colleagues. I do think it’s misleading if you’re implying that 

only three conservatives were hired in her tenure. 

Senator SESSIONS. Yeah, I’m implying that. 

[Laughter.] 

Mr. GOLDSMITH. Yes, sir. I don’t think that’s accurate. 

Senator SESSIONS. Three out of 43. 

Mr. GOLDSMITH. I don’t think that’s accurate, sir. I think you 

have the numerator wrong. The reason that I would say that the 

reason the Vermule and Manning and I are picked out is because 

we write about legal issues and public law and we are taken to 

have a conservative stance on that. 

Senator SESSIONS. Maybe you’re right. 

Mr. GOLDSMITH. But I don’t believe the numerator is accurate. 

And I would also say that, you know, there were a whole range of 

347 

hires right, left, and center of all stripes and I don’t know and I 

don’t really care about the political affiliations. 

[Simultaneous conversation.] 

Senator SESSIONS. There are not many known out of the 100- 

some-odd faculty conservatives other than you three. 

Mr. GOLDSMITH. No, sir. I would disagree with that as well. 

Senator SESSIONS. Not a lot. What percentage would you give? 

Over 10? 

Mr. GOLDSMITH. Yes, sir, I would. 

Senator SESSIONS. Over 20? 

Mr. GOLDSMITH. I don’t know. 

Senator SESSIONS. I doubt it. I doubt over 10. 

Mr. White, the only thing I would say to you is, I appreciate your 

testimony and respect it. I would just note that when you came in 

this was after the controversy and Dean Kagan had started having 

some dinner with the military. But before that, she was not doing 

that, and that’s when the controversy occurred. And I think the 

other witnesses’ testimony that the military wasn’t the one that 

should have been blamed, those in Congress who voted the law are 

the ones responsible for that law. 

Mr. Whelan, you talked about this question of activism and I 

really do think it’s important. I think I used Senator Hatch’s formulation of it. I’m not sure he agrees I got it right, but I would 

say an activist that deserves criticism is one who ceases to be faithful to the legitimate interpretation of the law or the Constitution 

and allows personal political, religious, social agenda to impact how 

they decide a case, a non-legal basis for a decision. 

And with regard to Ledbetter, in your opinion, were previous 

cases—that decision consistent with previous interpretations of the 

statute? 

Mr. WHELAN. Absolutely. 

Senator SESSIONS. Were there any previous interpretations of a 

similar type? 

Mr. WHELAN. Well, absolutely, Senator. The decision was consistent with four Supreme Court precedents over three decades. 

The opinion spelled that out in detail. And, again, I really invite 

you to ask the man who wrote the brief argument in the case for 

the government. Mr. Garre, I’m sure, will confirm that. 

Senator SESSIONS. Is that correct? That’s right, Mr. Garre. 

Mr. GARRE. That’s correct. It was one of the Department of Justice attorneys on the brief. I did not argue the case. I do think that 

Mr. Whelan is right that the government’s position in that case 

and ultimately the Supreme Court’s decision in that case was in 

line with a number of prior Supreme Court decisions. 

Senator SESSIONS. And it would therefore be unfair to accuse the 

court of an activist ruling in that case? 

Mr. GARRE. I agree with that, your honor. 

Senator SESSIONS. Your honor? 

Mr. GARRE. Senator. 

[Laughter.] 

Mr. GARRE. Force of habit. 

[Laughter.] 

Senator KAUFMAN. He liked the former better. 

348 

Senator SESSIONS. I would note that Dean Kagan never made 

that mistake having never argued or been before a judge but a few 

times in arguing a case. 

Mr. Alt, on Citizens United people criticized the Court for ordering a rehearing as if this were some error on the Court. It seems 

to me that showed their great respect and understanding that a 

case might need to be reversed and it needed great care before such 

an action would be taken, the Austin case, I guess, in particular. 

Would you consider that the Court ordering a rehearing was a wise 

thing to do before making a significant decision in that circumstance? 

Mr. ALT. I certainly would, Senator. I think it gave the parties 

ample opportunity to both brief and argue the question. Regrettably the government’s position given the failings of the statute 

didn’t get any better. It went from defending it on the basis of it 

could be used to ban books, to well, the statute could be used to 

ban pamphlets. And I think that the Court found that equally disturbing in the second argument. 

One of the other criticisms that has been frequently made is that 

they didn’t try to avoid the question. But if you look, the Court had 

been avoiding the constitutional question on this for a long time 

and it had gotten to the point where they were bending the law to 

the point where it was breaking. They needed to answer this question. And I do think that rehearing gave the parties ample opportunity to brief and to argue before the action was taken to overturn 

Austin. 

Senator SESSIONS. Professor Rotunda. 

Mr. ROTUNDA. Just to add to that—— 

Senator SESSIONS. Before you say, let me just thank you for the 

serious question on recusal. I think we’ll all have to think about 

that as this nomination goes forward. 

Mr. ROTUNDA. Thank you. Just to add to that, Citizens United 

is talked about as a conservative decision. I don’t understand that 

part. That is, the ACLU was very prominent in it filed an amicus 

brief on behalf of the winning position, the so-called ‘‘conservative 

position.’’ The Court was very clear, the majority, going through 

the long history. You had politicians like Senator—or President 

Harry Truman when he signed a particular statute acknowledging 

he thought the provision on corporate restrictions was unconstitutional. And there was a long series of victims in prior cases from 

justices like Justice Douglas, who most people would not think of 

as all that conservative, supporting the position that the majority 

embraced. 

I mean, you can like Citizens United, you can not like it, it’s a 

free country. You can say what you want. But to say that that’s 

a conservative opinion is surprising when there were so many liberal supporters embracing the position that the Supreme Court ultimately adopted. 

Senator SESSIONS. Thank you. 

Senator KAUFMAN. Thank you. Senator Hatch. 

Senator HATCH. Thank you, Mr. Chairman, I appreciate it. I appreciate each one of you folks who are here today. 

Professor Goldsmith, I’m happy to have you there. I think it’s a 

great addition to Harvard. 

349 

Captain, we have to respect what you say. 

Dean Clark, I’ve watched you for years and I enjoyed your testimony. It was very frank. You mentioned some concerns you had, 

but on the other hand it’s important testimony. 

Mr. Garre, I’ve had quite a bit to do with a number of you guys 

here, so I feel very deeply toward all of you. 

I’ve read Professor Rotunda and his constitutional law and his 

whole series. And I just want to pay tribute to you as well. 

You read it too, huh? 

[Laughter.] 

Senator HATCH. Now, if I understand you, Mr. Alt, and you, Mr. 

Whelan, you’re saying in the Ledbetter case that the Court did 

nothing wrong, it just sustained a Congressional enaction—enactment; right? 

Mr. WHELAN. Well, yes, Senator. It’s even beyond that. 

Senator HATCH. Sustained a—is it a 180-day statute of limitations? 

Mr. WHELAN. A charging period for EEOC filings. But, again, 

Senator, it’s beyond that. My point is that the criticisms that have 

been leveled against it rest constantly on a misrepresentation of 

what the Court held. The Court made clear that it was not—— 

Senator HATCH. That’s my point. I mean, I agree with you on 

that. The fact of the matter is Congress then came back and 

changed it so that they could correct the so-called ‘‘ill.’’ But in all 

honesty, if it’s true that she had 5 years since she left the position, 

she could have asserted herself in 180 days. Now, that’s cloudy in 

a lot of our minds, but the fact of the matter is, it’s not activism 

to sustain the law that Congress passed. And if it happens to be 

wrong, Congress can change that law which it did in this particular 

case. If I get you right, that’s what I understand you were saying. 

Mr. WHELAN. Well, that’s correct, Senator. And, again, the examples that I used of liberal judicial activism were rulings on constitutional grounds that invalidated democratic enactments in 

hugely important areas in a way that Congress and state legislators cannot possibly address. So that’s where you see the core of 

judicial activism when courts wrongly rule on constitutional issues 

in a way that invalidates democratic enactments. 

Senator HATCH. I don’t disagree with you. In the Citizens United 

case, either one of you could answer this or anybody else for that 

matter, in the Citizens United case it seemed to me that that case 

overruled the Austin decision. But how many decisions were different from Austin before that? 

Mr. ALT. Once again, I do think it’s apt to refer to it as an orphaned unique. This is a case, if you take a look—— 

Senator HATCH. You don’t have to convince me on Austin. I think 

they should have overruled Austin. My point is a bigger point than 

that and that is they really sustained years and years and case 

after case that had preexisted. Am I right or wrong on that? 

Mr. ALT. Absolutely. Dating back from the U.S. v. the Congress 

of Industrial Organizations case in 1948 in which the Court suggested that limitations which would restrict writing by a union 

would—writings by a union would—— 

[Simultaneous conversation.] 

350 

Senator HATCH. Basically what they did was reaffirm Buckley v. 

Bolin. Mr. ALT. Certainly with regard to the core. Again—— 

[Simultaneous conversation.] 

Senator HATCH. My point is it doesn’t sound like activism to me. 

Mr. ALT. No. Buckley said that free speech was the rule and the 

exception is limitations on corruption and the appearance of corruption. Austin came up with a fanciful expansion on that. 

Senator HATCH. When this hearing started, our colleagues on the 

other side, I think were taking on the Roberts Court as though it 

was an activist Court. I personally think that’s wrong. And I think 

you’ve made a fairly decent case here today that it is wrong. 

Mr. WHELAN. Senator, if I may add one point about Citizens 

United that I developed more in my written testimony. Solicitor 

General Kagan declined to defend the actual rationale of Austin, a 

point which underlies what an outlier that case was. She was criticized by folks on the left for doing so. Chief Justice Roberts in his 

concurring opinion pointed out her failure to do so. And I think— 

I’m not faulting her for that, I’m pointing out that it illustrates 

that Austin was not a precedent worthy of respect. 

Senator HATCH. Well, the Court explained that it overruled Austin because Austin was not consistent with the First Amendment. 

I’ll always argue on the part of the First Amendment if I can. In 

other words, in overruling Austin, the Court was preferring the 

Constitution to one of its own principles. 

Mr. WHELAN. Exactly. And as Professor Rotunda pointed out, it’s 

odd to describe a robust First Amendment ruling that benefits 

unions equally with corporations and it’s sought by the ACLU as 

a conservative result. 

Senator HATCH. My time is up, but isn’t adhering more closely 

to the law in this case to the Constitution an example of judicial 

restraint rather than judicial activism? 

Mr. WHELAN. The Court’s obligation is to strike down democratic 

enactments that violate the Constitution. When it does that, it is 

not engaging in activism. 

Senator HATCH. So that’s judicial restraint. 

Mr. WHELAN. Entirely consistent with Judicial restraint. Yes, 

Senator. 

Senator HATCH. Thank you. 

Senator KAUFMAN. Senator Kyl. 

Senator KYL. Thank you, Mr. Chairman. And thank you all. Captain, first of all, thank you very much for your service. All of you 

have provided us important advice about someone who you know 

well or whose views you have closely studied and your testimony 

therefore is very helpful to us and we thank you for it. 

I have not read the written version of all of your testimony, but 

I have read yours, Mr. Whelan. I found it up to your usual incisive 

and impactful standard. I only regret that none of my democratic 

colleagues except Senator Kaufman are here to be instructed in the 

error of their ways. 

[Laughter.] 

Senator KYL. And Professor Rotunda, I too am baffled that upholding political speech in the First Amendment is not considered 

a liberal decision in either the classical or contemporary sense of 

351 

that. I would enjoy being in a legal seminar with every one of you. 

Thank you very much for your testimony. 

Senator KAUFMAN. Thank you. I just have a couple of questions. 

Professor Goldsmith, just having spent some time around a law 

school, the vast majority of courses that are taught at a law school 

are courses that you could not identify who or what someone’s political persuasions, Bankruptcy Court, Administrative law; isn’t 

that true? 

Mr. GOLDSMITH. You might be able to depending on how they 

taught it, but likely not. 

Senator KAUFMAN. Professor Clark. 

Mr. CLARK. Yeah, I think the more general point is there are lots 

of divisions within faculties at universities and law schools in particular and there are people who you would call right and left. But 

what they mean by that is very, very different from what you are 

meaning here in these confirmation hearings. 

Senator KAUFMAN. Thank you. 

Mr. CLARK. That is, it’s usually about some methodologic whether you think historians are worth reading or whether you think 

economic analysis with a lot of quantitative data means anything. 

It’s that sort of thing rather than what you’ve been talking about 

for a few days. 

Senator KAUFMAN. Thank you. 

Mr. Garre, as a former Assistant General, you have a unique perspective, on that you share with General Kagan. Please tell us a 

little bit about the relationship between the Supreme Court and 

the Solicitor General and how you believe service as Solicitor General provide valuable experience in serving on the Court? 

Mr. GARRE. Senator, I think it’s valuable in a number of different 

respects. The Solicitor General is an officer of the Court. She is the 

most frequent litigant before the Court. She is grappling in many 

respects with the same issues that the Supreme Court is grappling 

with and it is simply impossible to serve as Solicitor General and 

not develop a profound respect for the Supreme Court and appreciation for its role in American government. And so in all those respects I think it will be extremely helpful, I’m sure, that General 

Kagan had a deep knowledge of the Supreme Court before she held 

that job. But an experienced Solicitor General in practicing before 

the Court gives you a unique perspective on the workload of the 

Court, the rhythms of the Court and the role of the Court. 

Senator KAUFMAN. Thank you. Senator Sessions. 

Senator SESSIONS. Thank you. And, Mr. Garre, you wouldn’t 

know that Solicitor General Kagan made her first appellate argument ever just 9 months ago. And has, I think, actively served as 

a Solicitor General for only 14 months and has had no other sustained legal experience other than 2 years in a law firm right out 

of college. And I think Justice Rehnquist had a number of years of 

full-time practice serving in the Office of Legal Counsel which is 

an exceedingly critical part of the Department of Justice. But regardless, I just think her experience is, by any standard, thin. It 

would be difficult for me to imagine anybody to say it’s not thin. 

And I will back off, Professor Clark. I’m sure I overstated a bit 

maybe the bias of Professor Goldsmith or imbalance in Harvard. 

But it is a real legitimate criticism and concern of a lot of us that 

352 

law schools do have an extraordinary number of liberal, progressive 

faculty members as compared to conservatives. Some have felt they 

need to do better and maybe in that last few years have done a little better. But the balance is real. And law students have to be 

pretty intellectually vigorous to withstand that when they go 

through the courses—or hardheaded, like I was when I went 

through. But thank you all. This was really a good panel. 

Professor Presser, I think that this international law issue is important because Americans believe they should not be controlled by 

anyone that they don’t elect to represent them, or getting taxation 

without representation. How can we have our law controlled, defined, or modified, or influenced by some parliament in Belgium or 

some potentate somewhere in the world? 

Mr. PRESSER. You’re absolutely right. We fought a revolution 

over that and I don’t think we can let ourselves be guided by some 

foreign bodies or some foreign emerging law. I only wish you had 

had a little bit clearer answers perhaps from General Kagan on 

that point. I think it’s one that you have to be very concerned 

about. 

Senator SESSIONS. I do too. I thought that, you know, if you believe like Justice Kennedy has said, or Justice Ginsberg, or Stevens, why not defend them. 

By the way, I’m not sure you mentioned, but I was taken aback 

by Justice Stevens’ opinion Monday in the McDonald case in which 

he talked about wisdom from a billion people around the world or 

something. It suggested that that somehow influenced his decision. 

Am I incorrect? 

Mr. PRESSER. No, I don’t think so. I think the idea is in the air 

and I think it would be very important to press it. 

Senator SESSIONS. Well, Justice Scalia did his best, and I’ll say 

that. Thank you, Mr. Chairman. 

Senator KAUFMAN. Senator Hatch. 

Senator HATCH. Just happy to have all of you here. I think the 

testimony has been across the board. 

Senator KAUFMAN. I do too. I think the testimony has been excellent and I really want to thank you all for coming here and helping 

with this. As we all know this is—as a Senator I have to say that 

this is the—after sending troops in harms way which is always the 

toughest decision for a Senator to make, how we vote on Supreme 

Court nominees is clearly the most important thing we have to do. 

It’s a lifetime appointment and a Supreme Court Justice will be 

making decisions that are going to affect long after I’m gone or long 

after anybody at this table is gone. So I really want to thank you 

for participating in what I think is one of the most important processes we go through. 

And with that, I will dismiss you. And if the next panel would 

please come forward. 

Senator KAUFMAN. Good evening, everyone. The hearing has now 

come back to order. 

Because of the number of witnesses on this panel, I’d like to reiterate previous requests and ask all witnesses to please limit your 

oral statements to 5 minutes or under. If I interrupt, we can just 

put the rest of it in the record. Whatever you have, we will put in 

the record, but we would like to keep it to 5 minutes. Your full 

353 

statement, written statement, will be put in the record, or any part 

you haven’t finished will be put in the record. 

Senators, likewise, will have 5 minutes to ask questions of the 

panel. Along with Ranking Member Sessions, I am very glad to 

welcome ABA witnesses Kim Askew and William Kayatta. Together with the ABA witnesses, we will also hear from Professor 

Ronald Sullivan, Marcia Greenberger, Justice Fernande ‘‘Nan’’ 

Duffly, Dr. Charmaine Yoest, Tony Perkins, Commissioner Peter 

Kirsanow, David Kopel, and William Olson. 

Now I’d ask you all to stand and be sworn so we may begin. 

Please raise your right hand. 

[Whereupon, the witness was duly sworn.] 

Senator KAUFMAN. Thank you. 

The ABA customarily assesses the qualifications of potential 

nominees to the Federal judiciary. Ms. Askew and Mr. Kayatta will 

address the ABA’s evaluation of Solicitor General Kagan to serve 

in the United States Supreme Court. 

Kim Askew is the chair of the ABA Standing Committee on the 

Federal Judiciary, and William Kayatta is the First Circuit Representative of the ABA Standing Committee on the Federal Judiciary. 

Ms. Askew. 

STATEMENT OF KIM ASKEW, ESQ., CHAIR, AMERICAN BAR ASSOCIATION, STANDING COMMITTEE ON THE FEDERAL JUDICIARY ACCOMPANIED BY WILLIAM J. KAYATTA, JR., FIRST 

CIRCUIT REPRESENTATIVE, AMERICAN BAR ASSOCIATION, 

STANDING COMMITTEE ON THE FEDERAL JUDICIARY 

Ms. ASKEW. Thank you, Mr. Chair, Ranking Member Sessions. 

We are honored to appear here today to explain the ABA Standing 

Committee on the Federal Judiciary’s evaluation of the professional 

qualifications of Solicitor General Elena Kagan. 

The Standing Committee gave General Kagan its highest rating 

and unanimously found that she is Well Qualified. For over 60 

years, the Standing Committee has conducted a thorough, nonpartisan, non-ideological peer review of nominees to the Federal 

courts. 

We assess the nominee’s integrity, professional competence, and 

judicial temperament. The Standing Committee does not propose, 

endorse, or recommend nominees, we only evaluate the professional 

qualifications of a nominee and then rate the nominee either Well 

Qualified, Qualified, or Not Qualified. 

Of course, a nominee to the Supreme Court of the United States 

must possess exceptional professional qualifications. As such, our 

investigations of a Supreme Court nominee is more extensive than 

nominees to the lower Federal courts in two principal ways. First, 

all circuit members conduct investigations into the nominee’s professional qualifications in every Federal circuit in the United 

States, not just the circuit in which the nominee resides. 

Second, while the Standing Committee independently reviews 

the writings of the nominee, we also commissioned three reading 

groups of distinguished scholars and practitioners. We were 

pleased to be assisted this year by a practitioner’s reading group 

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354 

ter and Washington University in St. Louis School of Law. These 

professors are all recognized experts in their substantive areas, and 

our practitioners group contains top trial and appellate lawyers. 

In conducting General Kagan’s evaluation, we contacted by letter 

some 2,400 persons, including every United States Federal judge, 

State judges, lawyers, law professors, and deans, and community 

and bar representatives. We conducted in-depth interviews with 

some of the preeminent and most experienced lawyers and judges 

in the country. 

We interviewed several justices on the Supreme Court of the 

United States, Federal and State court judges, lawyers within the 

Solicitor General’s Office, lawyers who had worked with or against 

General Kagan as she has headed the Solicitor General’s Office, 

and we spoke with former Solicitor Generals from both political 

parties. We followed her career at the University of Chicago Law 

School and Harvard Law School, and interviewed law professors 

and deans there and elsewhere. Aided by our reading groups, the 

Committee analyzed her academic writings, transcripts of her oral 

arguments, speeches, and other materials. 

Mr. Kayatta and I personally interviewed General Kagan last 

month. The nearly unanimous consensus of all we interviewed 

demonstrated that General Kagan’s professional qualifications are 

exceptionally outstanding in every respect. 

We concluded that General Kagan’s integrity, professional competence, and judicial temperament meet the high standards for appointment to the Supreme Court of the United States. She is Well 

Qualified. Our rating of Well Qualified reflects the clear consensus 

of her peers who have knowledge of her professional qualifications 

and we reached out to a broad range of our legal profession. 

By any measure, General Kagan has had an extraordinary legal 

career. She ably serves our Nation as the Solicitor General. She is 

the former dean of the Harvard Law School, and before that successfully became a tenured professor at two of our top law schools, 

where she taught in some four different subject matter areas. 

She has held two different positions in the White House under 

President Clinton. Her skills as a lawyer are described as ‘‘brilliant’’, ‘‘remarkable’’, and ‘‘at the highest level.’’ She is exceptionally 

competent, quickly grasping the most complex of legal issues. She 

is a gifted writer. 

She possesses a keen intellect, strong listening skills, is openminded, willing to consider different and opposing points of view, 

and she possesses the ability to find common ground in the most 

difficult of circumstances. We ask that the ABA’s statement be 

made a part of the record, the written statement that was submitted, and we thank you for the opportunity to present these remarks on behalf of the Standing Committee. 

Senator KAUFMAN. Your statement will be put in the record. 

Thank you, Ms. Askew. 

Ms. ASKEW. Thank you. 

Senator KAUFMAN. Thank you, Mr. Kayatta. 

[The prepared statement of Ms. Askew appears as a submission 

for the record.] 

Senator KAUFMAN. Professor Ronald Sullivan is the Edward R. 

Johnston Lecturer on Law and the director of the Criminal Justice 

355 

Institute at Harvard Law School. He’s also a founding fellow of the 

Jamestown Project, a think tank that focuses on issues of democracy. He’s a graduate of Moorehouse College and a graduate of 

Harvard Law School. 

Professor Sullivan. 

STATEMENT OF RONALD SULLIVAN, EDWARD R. JOHNSTON 

LECTURER ON LAW, DIRECTOR OF THE CRIMINAL JUSTICE 

INSTITUTE, HARVARD LAW SCHOOL 

Professor SULLIVAN. Thank you very much, Mr. Chairman, Mr. 

Ranking Member. Thank you for having me here. 

Let me begin with what I take to be the obvious, and that is anyone who has even had a passing acquaintance with Elena Kagan 

recognizes the fact that she has a first-class mind. She’s an outstanding legal scholar and a terrific teacher. Her academic record 

is unassailable. 

Hearings on Supreme Court nominations represent an important—indeed, essential—expression of our democracy. This Committee attempts to carefully balance important norms of judicial 

autonomy with notions of democratic accountability. 

Understandably, the degree to which a particular nominee’s judicial philosophy should be taken into account in making your decision is hotly contested, but whether framed in the vocabulary of judicial philosophy or the vocabulary of professional competence, the 

question—the primary question that animates this hearing and has 

done so for a long time is, what type of justice will Elena Kagan 

be if this Senate confirms her? 

To the extent that we can know what type of Supreme Court justice she might be, I respectfully suggest that we have to look at the 

whole person, her entire record as an academic, as an administrator, and as a policy advisor. Equally important, a fair evaluation 

of General Kagan’s character will better illuminate the values that 

she would bring to the bench, should the Senate confirm her. 

Now, with that in mind I’d like to offer a few observations about 

the person I know, my former colleague, my former dean, and the 

person whom I’m proud to call my friend. 

Now, given that much of my academic work focuses on issues of 

access to justice, I want to talk to you a minute about Elena’s 

record with respect to developing clinical programs while serving as 

dean of the Harvard Law School. As this Committee knows, clinical 

programs provide expert legal services to people, communities, 

businesses, and even governments that otherwise could not afford 

such services. 

Core principles of our justice system—equal protection under the 

law, equal access to the law, and the fair distribution of burdens 

and benefits across the citizenry—were advanced by then-Dean 

Kagan’s support and interest in clinical programs. Concrete people 

and institutions were provided with legal services, and her efforts 

as dean demonstrated a firm commitment to these values. 

Significantly, the student body responded to her leadership. The 

number of students participating in clinical programs grew by an 

astounding 240 percent. Likewise, the number of hours students 

dedicated to pro bono work rose by 158 percent. I know from personal experience the kind of impact that pro bono work can have 

356 

on one’s professional career, as my exposure to pro bono work while 

myself a student at Harvard Law School shaped my choice to serve 

the under-served and indigent with the best legal training that the 

country had to offer, expertise that my former clients, when I was 

a public defender right here in DC, would never have been able to 

afford. 

The clinical work done at Harvard and supported by then-Dean 

Kagan is not merely another line added to a student’s resume. 

Rather, clinical work is the place where some of our Nation’s 

brightest legal minds decide to use those minds in the public service of our democracy. 

I also want to say a brief work about Elena’s intellect and her 

intellectual method. I found her to be an active consumer of knowledge. She has a swift and eager mind and sought to understand 

complex issues before comment or action. While she had many answers, not a trait uncommon to Harvard law professors, she recognized that she did not have all the answers, which may be a trait 

less common among some of my colleagues. But she was always 

willing to engage. Her thought was always in progress and she was 

always willing to revise an opinion when facts and reasons conspired to produce a different result. 

Finally, I shall end by recounting one of General Kagan’s first 

acts as dean. As the incoming dean, she could have decided to accept and hold the Royal Professorship of Law, the law school’s first 

endowed chair. She declined. The Royal Professorship is named 

after Sir Isaac Royal, Jr., whose family earned its immense fortune 

from the trans-Atlantic slave trade. 

Because the chair was funded by this means, Elena Kagan opted 

to become the first person to hold the Charles Hamilton Houston 

professorship, an endowed chair named after one of the most 

prominent African-American attorneys to ever graduate from the 

Harvard Law School, and indeed the mentor of the late Justice 

Thurgood Marshall. 

In the end, I submit that any fair read of General Kagan’s character, career, and scholarship will inevitably lead to the conclusion 

that she is intellectually gifted, fair-minded, hardworking, and an 

independent thinker. 

Thank you for the time. 

Senator KAUFMAN. Thank you, Professor Sullivan. 

[The prepared statement of Professor Sullivan appears as a submission for the record.] 

Senator KAUFMAN. Marcia Greenberger is a prominent women’s 

rights lawyer and the founder and the co-president of the National 

Women’s Law Center. She’s an expert on sex discrimination and 

has participated in the development of key legislative initiatives 

and litigation protecting women’s rights. She received both her BA 

and JD from the University of Pennsylvania. 

Ms. Greenberger. 

STATEMENT OF MARCIA GREENBERGER, FOUNDER AND COPRESIDENT, NATIONAL WOMEN’S LAW CENTER 

Ms. GREENBERGER. Thank you very much. Thank you, Senator 

Kaufman, and thank you Senator Sessions and Senator Hatch. I’m 

Marcia Greenberger, co-president of the National Women’s Law 

357 

Center, which, since 1972, has been involved in virtually every 

major effort to secure and defend women’s legal rights in this country. I thank you for the invitation to testify, and I do so in strong 

support of Solicitor General Elena Kagan to be an Associate Justice 

of the United States Supreme Court. 

Elena Kagan shines as an example of the progress made in this 

country. Hers is a remarkable legal career for anyone, but all the 

more so because she had to break down barriers along the way. 

None of the positions she has held came to women with ease, and 

she excelled at each. When she clerked for Justice Marshall, a 

giant of a lawyer and a justice, she was just one of 7 out of 30 

clerks, 7 women out of 30 clerks who clerked for the Supreme 

Court that term. 

The year before she became a tenured law professor at the University of Chicago Law School, only four women were tenured or 

even on tenure track at that time. And of course she became the 

first woman to be dean of Harvard Law School in its almost 200- 

year history, and in 2009 became the first woman Solicitor General. Kudos have accompanied her performance in each of these demanding roles. 

She’s clearly a person of extraordinary intellect and capacity, everyone concedes that, and each of the institutions she served benefited enormously from her great talents. The Supreme Court and 

the country will benefit with her on it not only because of her brilliance, but because of the quality of justice that will be improved 

for both men and women when the bench is more representative. 

When, for the first time, three women sit on the court, the court’s 

deliberations will be deeply enriched by their experiences and perspectives. 

My written testimony describes in more detail why even one 

more woman on the court can make such a difference. Moreover, 

a review of Elena Kagan’s record has led the center to conclude 

that, if confirmed, her approach to legal questions would be openminded and dedicated to the application of the law’s purpose and 

intent. She would be scrupulously fair and committed to dispensing 

equal justice. 

All women rely upon the Constitution and the law to ensure that 

fairness and equal opportunity are a reality in our daily lives. 

Women have a particularly great stake in judges’ commitment to 

equal justice and the protection of their legal rights. 

Women’s enormous progress toward equal opportunity has rested 

upon the constitutional right under the Equal Protection Clause, to 

be free from government-imposed discrimination, and the right to 

privacy under the Due Process Clause, as well as the core statutory 

protections that women fought so hard to secure in such fundamental areas as education, employment, health and safety, and 

economic welfare. 

Elena Kagan’s record demonstrates that she will bring to the 

court that commitment to the rule of law and to equal justice for 

ordinary Americans, including the women of this country who often 

need its protection, as we heard in earlier panels, in ways that they 

never expected. 

One noteworthy example, which I discuss in my written testimony in more detail, is a case that dealt with the ability of individVerDate Nov 24 2008 12:24 Aug 23, 2011 Jkt 067622 PO 00000 Frm 00367 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\67622.TXT SJUD1 PsN: CMORC
358 

uals to go to court, to bring criminal contempt proceedings for violations of civil protections orders, and those are orders of particular 

importance to victims of domestic violence. She argued that case 

herself. She did so having clearly put enormous time and effort into 

it. It’s been described in earlier panels that the cases that a Solicitor General argues himself or herself are noteworthy, and clearly 

she saw this one as important. 

To us, this evidences what we believe is a hallmark for Solicitor 

General Kagan, that she understands and has concern for the way 

the legal system affects people who need its protections most, in 

this case, victims of domestic violence, who still too often struggle 

to receive justice in our justice system. 

You know, Justice O’Connor recently noted that Canada has four 

women on its nine justice—on its nine—high court, including a female chief justice, and she said, now, what’s the matter with us? 

You know, we can do better. With the confirmation of Solicitor 

General Kagan to the Supreme Court, this country is rightfully 

continuing on its path to doing better. 

Ours is a history of the first path breaker, then the second, and 

the third follows until we reach a point—still in the future but I 

am sure we will reach it—where we all stop noticing, because it is 

taken as a given, that there will be representation of all of us in 

our richness and diversity in this country. 

Thank you. 

Senator KAUFMAN. Thank you, Ms. Greenberger. 

Ms. GREENBERGER. May I just say one quick thing? 

Senator KAUFMAN. Absolutely. 

Ms. GREENBERGER. I understand my time is expired, but there 

were a number of comments about the Ledbetter case I see very 

differently, so I hope in the questioning I’ll have an opportunity to 

discuss it. 

Senator KAUFMAN. Thank you. 

[The prepared statement of Ms. Greenberger appears as a submission for the record.] 

Senator KAUFMAN. The Honorable Justice Nan Duffly is an Associate Justice on the Massachusetts Court of Appeals and a board 

member of the National Association of Women Judges. Previously 

she served on the probate and family court. She earned her BA 

from the University of Connecticut and her JD from Harvard Law 

School. 

Justice Duffly. 

STATEMENT OF JUSTICE FERNANDE ‘‘NAN’’ DUFFLY, ASSOCIATE JUSTICE, MASSACHUSETTS COURT OF APPEALS ON 

BEHALF OF THE NATIONAL ASSOCIATION OF WOMEN 

JUDGES 

Justice DUFFLY.—for this Committee to speak in support of Solicitor General Elena Kagan’s nomination to the Supreme Court. I am 

honored to be here today as past president of the National Association of Women Judges as its current co-chair of the Judicial Selection Committee, and on behalf of NEWJ’s current president, Alaska 

Supreme Court Justice Dana Favre. 

The National Association of Women Judges is the voice of our 

Nation’s female jurists. It has supported the advancement of 

359 

women in the judiciary since our founding in 1979, when we first 

sought the appointment of the first woman to the Supreme Court. 

In September 1981, Joan Dempsey Kline, the co-founder of NEWJ, 

testified before this Committee on behalf of Sandra Day O’Connor, 

also a founding member. 

The first female attorney in what would be the United States, 

Margaret Brent, arrived in Maryland in 1683, but women were not 

admitted to State bars in this country until 1869, and there were 

no women judges until 1870 when the first woman was appointed 

a justice of the peace in Wyoming. A century would pass before 

every State had a woman on the bench. 

The advancement of women in the legal profession has not been 

rapid nor inevitable, but we are now past celebrating firsts. We 

look forward to celebrating full diversity on our Nation’s courts. 

Judge Favre and I are appellate judges with nearly two decades 

of judicial experience each. We well recognize the essential qualifications that a justice of our highest court must have: superior intellectual capacity, an intimate knowledge and deep understanding 

of constitutional law, and the driving principles of legal jurisprudence in this country. General Kagan has these qualifications in 

abundance, as you’ve heard from our prior witnesses. 

Not all judges appointed to our appellate courts have, or need, 

prior judicial experience. Elena Kagan’s rich and varied legal career as a private attorney, a White House lawyer, a professor, a 

dean, and the government’s attorney in matters before the Supreme Court will provide her with a unique constellation of experiences that will bring fresh ideas to the court. 

The depth and breadth of General Kagan’s educational and professional experience, coupled with her intellectual aptitude and 

preparedness, will serve her well on the high court, should she be 

appointed. A brilliant and highly regarded lawyer, law professor, 

whose communication skills are renowned, as you probably already 

experienced, her views will be respected and welcomed, if not 

adopted, by her colleagues. 

My interactions with General Kagan occurred largely during the 

year she served as the dean of Harvard Law School, from 2003 to 

2009, which coincided with my leadership positions in the NAWJ. 

Among other things, we worked together on an initiative that 

sought to provide information to law students about women and 

minority advancement in our country’s law firms. 

At her request, I worked on educational programming for the 

Women’s Leadership Summit that she convened at Harvard in 

2008, and as an active alumna I’ve had a number of opportunities 

to interact with her and to hear her speak. I learned from these 

interactions that she comes prepared as a quick and nimble intellect, humor, and a respect for her audience. 

I believe that the presence of women and minorities on a court 

has an impact on overall decision-making that goes beyond the 

opinions of the female or minority judges themselves. When judicial 

colleagues respect each other they are open to the interchange of 

new ideas that those from diverse backgrounds can bring. Women 

judges bring unique experiences that inform their own decisions, 

but the interchange between male and female colleagues has, in my 

360 

experience, profoundly affected the decisions of both the female and 

the male jurists. 

Now, that Elena Kagan would be one of three women on the Supreme Court is also significant, would also be significant. In order 

to benefit from the diversity of background and experience that 

women bring to the bench, the presence of women cannot be occasional or token. Our courts, but most important our Nation’s highest court, must reflect the diversity of our people. 

For well over two decades, women and men have been graduating from our law schools in nearly equal numbers, which likely 

means that the men and women are equally represented in the current pool of attorneys eligible for judicial appointment. 

With the appointment of Elena Kagan, the Supreme Court would 

come a step closer to reflecting the broad diversity of those who call 

America home. The National Association of Women Judges supports with enthusiasm and without qualification the nomination of 

Elena Kagan to the Supreme Court of the United States. 

Thank you. 

Senator SCHUMER. [Presiding] Thank you, Justice Duffly. 

Now, Charmaine Yoest. Dr. Charmaine Yoest is president and 

CEO of Americans United for Life. Dr. Yoest began her career in 

the White House during the Reagan administration. She’s also 

worked as the project director of the Family, Gender, and Tenure 

project at the University of Virginia, and as vice president at the 

Family Research Council. 

She has also worked as the Project Director of the Family, Gender and Tenure Project at the University of Virginia, and as Vice 

President at the Family Research Council. She received her BA 

from Wheaton College and her MA and Ph.D. from the University 

of Virginia. 

Dr. Yoest, your entire statement will be read in the record, and 

you may proceed. 

STATEMENT OF CHARMAINE YOEST, PRESIDENT AND CEO, 

AMERICANS UNITED FOR LIFE 

Ms. YOEST. Mr. Chairman, Ranking Member Sessions, Senator 

Hatch, thank you very much for the opp to testify today on behalf 

of Americans United for Life, the Nation’s oldest pro-life public interest law and policy organization. 

Our vision at AUL is a nation where everyone is welcomed in life 

and protected in law. We have been committed to defending human 

life through vigorous judicial, legislative, and educational efforts 

since 1971, and have been involved in every abortion-related case 

before the Supreme Court, including Roe v. Wade. In fact, 30 years ago this week, AUL successfully defended the 

constitutionality of the Hyde amendment before the Supreme Court 

in Harris v. McRae, a landmark case in defense of unborn human 

life. 

I am here tonight because of AUL’s strong opposition to the nomination of Solicitor General Elena Kagan to the United States Supreme Court. Based on our research, we believe that Ms. Kagan 

will be an agenda-driven justice on the Court and that she will oppose even the most widely accepted protections for unborn human 

life. 

361 

The hearings have strengthened our opposition to Ms. Kagan’s 

appointment. As the record shows, she was willing to manipulate 

the facts to pursue her own personal political agenda while serving 

as an adviser to President Clinton. 

Indeed, she demonstrated a pattern of behavior of letting her 

passion for a particular policy, in this case, partial abortion, overwhelm her judgment. 

Tonight, I would like to make three points. First, I urge this 

Committee to officially investigate the discrepancies that have arisen this week between Ms. Kagan’s testimony and the written 

record about her actions related to potentially lobbying the American Medical Association and the American College of Obstetricans 

and Gynecologists during her tenure in the Clinton White House. 

The questions surrounding this period are troubling and call into 

question Ms. Kagan’s ability to adopt an impartial judicial temperament. 

Second, Ms. Kagan, has an extensive record that demonstrates 

her hostility to regulations of abortion and any protections for unborn human life. We believe that Ms. Kagan would undermine any 

efforts by our elected representatives to pass or defend even the 

most widely accepted, common sense regulations of abortion, like 

bans on partial birth abortion, parental notification, and informed 

consent. 

Her testimony this week, particularly her response to Senator 

Feinstein that any regulation of abortion requires the Doe health 

exception has added to this concern. 

Third, we believe that a nominee’s judicial philosophy goes to the 

heart of his or her qualifications to serve on the United Supreme 

Court, and we believe that Ms. Kagan’s agenda-driven judicial philosophy makes her unqualified to serve on the Court. 

We are asking this Committee to investigate Ms. Kagan’s record 

related to her interaction with both the AMA and ACOG during 

her tenure as a policy adviser to President Clinton. 

I would like to focus attention tonight on her apparent efforts to 

influence and distort the record on the medical science related to 

partial birth abortion. In a December 14, 1996 memo, Ms. Kagan 

addressed the pending release of a proposed statement by ACOG 

that partial birth abortion is never medically necessary. ‘‘The release of such a statement,’’ she argued, ‘‘would be a disaster.’’ 

In response, White House documents show that Ms. Kagan drafted an amendment to ACOG’s statement, dramatically altering their 

language, which stated that partial birth abortion, and I quote, 

‘‘may be the best or most appropriate in a particular circumstance 

to save the life or preserve the health of a woman.’’ 

ACOG subsequently adopted Ms. Kagan’s handwritten change 

into their final statement. 

Ms. Kagan claimed before this Committee that she was simply 

a scribe for changes coming from ACOG, but her response raises 

more questions than it answers. And this was not an isolated case. 

We have further evidence that she pursued the same strategy 

with the AMA. Similar to ACOG’s original position, the AMA 

issued a policy stating that no situations had been identified where 

partial birth abortion was the only appropriate method of abortion 

and that ethical concerns surround it. 

362 

In a White House e-mail dated June 1, 1997, Ms. Kagan wrote 

that she just came from a meeting which focused on, quote, ‘‘whether the AMA policy can be reversed at its convention on June 23.’’ 

She then concluded, ‘‘We agree to do a bit of thinking about whether we could contribute to that effort.’’ 

Ms. Kagan was so opposed to the passage of a ban on partial 

birth abortion that she appears to have advocated for ACOG and 

the AMA to suppress or modify their medical view. She made a deliberate decision to advocate for partial birth abortion, even to the 

point of working to deceive the American public about the medical 

science related to he procedure. 

On this panel tonight, we have heard quite a bit about the role 

of women in the judicial system. Let me just say, as a woman, that 

this deeply offends me. 

Thank you. 

[The prepared statement of Charmaine Yoest appears as a submission for the record.] 

Senator SCHUMER. (Off microphone) and will be read in the 

record. 

Tony Perkins. Mr. Perkins is the President of the Family Research Council. He is a former member of the Louisiana legislature, and a veteran of the United States Marine Corps. He received 

his undergraduate degree from Liberty University and his MPA 

from Louisiana State University. 

Mr. Perkins, your entire statement will be read in the record, 

and you may proceed. 

STATEMENT OF TONY PERKINS, PRESIDENT, FAMILY 

RESEARCH COUNCIL 

Mr. PERKINS. Thank you, Mr. Chairman, Ranking Member Sessions, and the remainder of the committee, Senator Hatch. Thank 

you for the invitation to testify. 

As one who spent a number of years in uniform as a Marine and 

a police officer, my remarks will focus primarily on Ms. Kagan’s 

treatment of military recruiters at Harvard Law School. 

As has been pointed out, while dean of the law school, she defied 

the requirements of Federal law known as the Solomon Amendment. Her violation of this Federal law was motivated by her vehement opposition to the military’s prohibition against open homosexuality. 

This protracted incident, combined with the just made public report of her rewriting of the medical finding of ACOG on partial 

birth abortion as an adviser in the Clinton White Houses, raises 

doubts as to whether she possesses the requisite judicial temperament and impartial nature required of a Supreme Court Justice. 

On the former topic, when Ms. Kagan did comply with the law, 

she wrote to the campus, making clear just how grudging her cooperation with the military was in light of the military’s, quote-unquote, ‘‘repugnant policy.’’ 

She declared, quote, ‘‘I abhor the military’s discriminatory recruitment policy,’’ and she added that ‘‘The policy was a profound 

wrong, a moral injustice of the first order,’’ end quote. A moral injustice of the first order. 

363 

Of all the moral injustices throughout history that man has inflicted on man, she equates them to a military policy enacted by 

Congress. 

Mr. Chairman, the purpose of our military is to fight and win 

this country’s wars. War is the most difficult human activity, bar 

none. It requires organized groups of men and women to act with 

strategic and tactical lethality, while its members are simultaneously being wounded and killed. 

In war, the normal ways of living are completely sacrificed in the 

harsh, punishing environment of combat. Even in peacetime settings, in units not engaged in combat, great sacrifices are required. 

Military life, by its nature, must be characterized by regular lack 

of privacy and repeated situations of forced intimacy. 

As military experts have testified and this Congress has affirmed, in such an environment, it is not a moral injustice of the 

first order to minimize the sexual exposure that such conditions 

force on soldiers, sailors, Marines and airmen. It is the only sensible and effective way to run a military organization. 

It should be noted that the current law on homosexuality in the 

military has been repeatedly challenged and upheld by the Federal 

courts, and the Supreme Court unanimously upheld the Solomon 

Amendment. 

Now, some have defended Ms. Kagan’s actions regarding the 

military, claiming they do not demonstrate that she is anti-military. And there is truth in that, only in that she does not oppose 

the military simply because they are the military. 

However, clearly, she does oppose the military, because they 

have not yet bowed to the demands of the sexual counter-culture. 

Her record would suggest that it is not that Ms. Kagan does not 

want the military to defend our Nation against terrorists. It’s just 

that she wants to use the military to advocate radical social policies more. 

This becomes very clear when one examines the amicus brief 

that Ms. Kagan signed on to in the Solomon case. The brief began 

with a sweeping declaration that is startling in its implications. 

Quote, ‘‘We are deeply committed to a fundamental moral principle. 

A society that discriminates based on sexual orientation or tolerates discrimination by its members is not a just society,’’ end quote. 

Note that Kagan and the professors condemned not only a society 

that discriminates, but a society that tolerates discrimination by its 

members. I abhor discrimination based on race and other immutable characteristics, but the implications of this statement are 

chilling for the freedom of speech and the freedom of religion in 

America. 

It should alarm those who live in the 45 states that define marriage a union of a man and a woman, and to the tens of millions 

of Americans who affirm biblical moral teaching. 

Her own statements make obvious that Elena Kagan would 

strike down any marital statute, including the Federal Defense of 

Marriage Act, which defines marriage as being the union of one 

man and one woman. 

At question is not whether Ms. Kagan is a good person or even 

if she is skilled in the law. What is in question is her ability to be 

an impartial jurist. 

364 

Her record makes clear that she is an impassioned activist that 

only sees laws and, in some cases, science as mere obstacles to 

overcome in pursuit of a far left agenda. 

We do not need a justice on the Supreme Court who sees it as 

her life mission to write the homosexual version of Roe v. Wade by 

striking down one man-one woman marriage all across America. 

These positions and the temperament accompanying them make 

her unfit to sit as an associate justice on the Supreme Court, and 

I urge the Senate to reject her nomination. 

[The prepared statement of Tony Perkins appears as a submission for the record.] 

Senator SCHUMER. Thank you, Mr. Perkins. 

Now, Peter Kirsanow. Mr. Kirsanow is a partner in the labor and 

employment practice group of Benesch Friedlander and serves on 

the U.S. Commission on Civil Rights. 

He is a former member of the National Labor Relations Board, 

to which he received a recess appointment from President George 

W. Bush. He received his BA from Cornell University in New York 

State, and his J.D. from Cleveland State University. 

Commissioner Kirsanow. 

STATEMENT OF PETER KIRSANOW, BENESCH LAW FIRM 

Mr. KIRSANOW. Thank you, Mr. Chairman, Ranking Member Sessions, and Senator Hatch. I am Peter Kirsanow, a member of the 

U.S. Commission on Civil Rights, and a partner with the labor employment practice group of Benesch Friedlander, and I am here in 

my personal capacity. 

The U.S. Commission on Civil Rights was established pursuant 

to the 1957 Civil Rights Act to, among other things, act as a national clearinghouse for information related to denials of equal protection and discrimination. 

In furtherance of the clearinghouse function, my assistant and I 

reviewed the documents related to civil rights authored by Ms. 

Kagan from her time as a clerk to Justice Marshall through her 

tenure as Solicitor General, all in the context of prevailing civil 

rights jurisprudence. 

Our view revealed at least two significant concerns with respect 

to Ms. Kagan’s approach to cases involving racial preferences and 

school assignments, which approach has been rejected by the Supreme Court in at least six cases. 

The first concern pertains to Ms. Kagan’s position on the third 

circuit case of Piscataway v. Taxman, contending that Title VII 

permits the nonremedial use of racial preferences by employers for 

the purpose of achieving diversity. 

In Taxman, the Piscataway Board of Education laid off a white 

teacher rather than a black colleague for the express purpose of increasing diversity in the school’s business education department. 

However, this was done despite the fat that there was no evidence 

of discrimination against black teachers, no evidence of workforce 

segregation, and no evidence of a manifest racial imbalance in a 

traditionally segregated workforce. 

In fact, black teachers were actually over-represented on 

Piscataway’s faculty relative to the general population. 

365 

Ms. Kagan’s position went beyond what the Supreme Court has 

held to be permissible voluntary affirmative action under Johnson 

v. Transportation Agency and Steelworkers v. Weber. In essence, 

Ms. Kagan’s position would give employers wider berth to make 

employment decisions on the basis of race. 

The second concern pertains to Ms. Kagan’s endorsement of three 

Texas school districts’ plan to assign students to schools on the 

basis of race. Again, solely for the interest of racial balancing, but 

without any evidence of either de jure or even de facto segregation 

or discrimination. 

Although Ms. Kagan found the school bridge’s approach to be, 

quote, ‘‘amazingly sensible,’’ the Supreme Court also rejected this 

approach in Parents Involved v. Seattle School District and Meredith v. Jefferson County. 

Taken together, Ms. Kagan’s position in Taxman and Goose 

Creek would give employers and administrators license to engage 

in racial engineering on a far more expansive scale, effectively 

making decisions, counting winners and losers on the basis of race 

in many circumstances. 

Evidence produced before the Civil Rights Commission shows 

that when the courts have opened the door to racial engineering 

just a bit, preferences have expanded exponentially. 

For example, evidence adduced in two recent Civil Rights Commission hearings shows that more than 10 years after the Supreme 

Court’s decision in Adarand, Federal agencies persist in using raceconscious programs in government contracting versus race-neutral 

alternatives. 

Moreover, even though the Supreme Court struck down the use 

of raw numerical weighting in college admissions in Gratz v. 

Bollinger, thereby requiring that race be no more than a thumb or 

feather on the scale in the admissions process, powerful racial preferences have shown absolutely no signs of abating. 

A recent study by the Center for Equal Opportunity shows that 

at one major university, racial preferences are so great that the 

odds that a minority applicant would be admitted overly similarly 

white comparative are 250-to-1. At another major university, the 

odds are 1,115-to-1. 

That’s not a thumb or a feather on the scale. That’s an anvil or 

a bus. Were Ms. Kagan’s position to prevail, the concept or principal of equal treatment would yield increasingly to preferential 

treatment. 

Furthermore, Ms. Kagan’s endorsement or embrace of racial engineering by employers would actually harm the very minorities 

who are the intended beneficiaries of the preferences. 

Evidence from a 2006 Civil Rights Commission hearing shows 

that there is increasing data that racial preferences create what is 

known as a mismatch effect that increase the probabilities that minorities will fail. 

For example, black law students, who are the beneficiaries of 

preferences, are 2.5 times more likely than their white 

comparatives not to graduate; four times more likely to fail the bar 

exam on the first try and six times more likely never to pass the 

bar exam, despite multiple attempts. 

366 

It is respectfully submitted that Ms. Kagan’s interpretative doctrine permits employers, administrators and others to single out 

certain groups for preferential or differential treatment. Today, 

there is nothing that prevents those same employers from shifting 

their preferences to some other group tomorrow, contrary to the 

colorblind ideal contemplated by the 1964 Civil Rights Act. 

Thank you, Mr. Chairman. 

[The prepared statement of Peter Kirsanow appears as a submission for the record.] 

Senator SCHUMER. We thank all the witnesses for staying within 

the 5-minute time limit. 

David Kopel is the Research Director of the Independence Institute and an Associate Policy Analyst at the Cato Institute. He is 

also an adjunct professor of advanced constitutional law at Denver 

University. 

Mr. Kopel received his J.D. from the University Law School and 

his B.A. from Brown University. 

You may proceed. 

STATEMENT OF DAVID KOPEL, RESEARCH DIRECTOR, 

INDEPENDENCE INSTITUTE 

Mr. KOPEL. Thank you very much, Senator Schumer. 

The last 3 days have raised rather than allayed concerns that 

Justice Kagan could destroy rather than defend Second Amendment rights. 

You have been offered platitudes that Heller is settled law and 

that the nominee knows that Second Amendment rights are very 

important to many Americans. 

Last summer, Ms. Sotomayor offered nearly identical assurances. 

Yet, this Monday, Justice Sotomayor and Justice Breyer declared 

that Heller should be overruled. 

Those rights which so many Americans consider so important 

would be eliminated by judicial fiat. 

Ms. Kagan has rejected every opportunity which this Committee 

has offered to provide any meaningful commitment to the Second 

Amendment. To the contrary. She has even refused to affirm that 

the Declaration of Independence has any value in guiding constitutional interpretation. 

While the Declaration states that the protection of inalienable 

natural rights is the very purpose of government, Ms. Kagan will 

not answer whether the natural right of self-defense is among 

those inalienable rights. 

We know from history that Jefferson and Madison and the rest 

of the founders and their intellectual ancestors, such as John 

Locke, considered self-defense to be one of the most fundamental 

of all rights. 

As Supreme Court clerk, Justice Kagan wrote, ‘‘I’m not sympathetic,’’ when a man challenged the DC handgun ban, which Heller 

later found to be unconstitutional. ‘‘I’m not sympathetic’’ is, obviously, the expression of her own opinion. 

The 1996 comparison of the National Rifle Association to the Ku 

Klux Klan indicates great hostility even to the political advocacy of 

Second Amendment rights. There has been no credible explanation 

of this comparison. 

367 

As my written testimony details, a few weeks ago, the White 

House provided one explanation, which, on its face, was not credible. On Tuesday, Ms. Kagan provided an entirely different explanation. She said that the NRA/KKK line was her record of a phone 

conversation with someone else. 

But a memo from Fran Allegra at the Department of Justice to 

Ms. Kagan at the White House reflects that it was Ms. Kagan herself who specifically wanted to know if the Volunteer Protection Act 

would apply to either the Klan or the National Rifle Association. 

As Ms. Kagan has accurately testified, Supreme Court judging is 

not a robotic process. There is a great deal of judgment involved. 

In the near future, there will be judgment about whether to overrule Heller or McDonald v. Chicago. Even if those cases remain intact, there will be judgment about what types of anti-gun laws infringe Second Amendment rights. 

A court which is unsympathetic to the Second Amendment could 

construe the Second Amendment so narrowly that it would provide 

little practical protection for the rights of the American people. 

In the Clinton White House, Ms. Kagan was the architect of a 

unilateral executive ban on the import of 58 rifles. Her White 

House aide, Jose Cerda, accurately characterized the Kagan-Clinton ban. 

‘‘We are taking the law and bending it as far as we can to capture a whole new class of guns.’’ Senator Leahy wrote to the Clinton White House to strongly protest what he called ‘‘using a Presidential directive to avoid the normal legislative process. 

The Kagan-Clinton gun ban required that the word ‘‘or’’ in a statute be read to mean ‘‘and.’’ It required that the term ‘‘sporting purposes’’ be read to mean only hunting and not target shooting. 

The Kagan ban was premised on the legal theory that the only 

type of legitimate hunting rifle is the type which would be used by 

a wealthy person who could afford to pay for a professional hunting 

guide. 

The ban further defined legitimate sport hunting according to the 

restrictive rules of 13 states rather than the rules of the majority 

of states. 

On Tuesday, Ms. Kagan told this Committee that her gun control 

work in the Clinton White House was just to keep guns out of 

criminal hands. But the Clinton-Kagan gun ban prevented all law 

abiding citizens from acquiring those rifles, even after passing a 

background check. 

The Second Amendment cannot long endure without a robust 

First Amendment. Based on Ms. Kagan’s scholarly works, it is 

clear that not since Robert Bjork has the Senate Judiciary Committee held hearings on a Supreme Court nominee with such a well 

established record in favor of substantially constricting First 

Amendment rights. 

Ms. Kagan was a great dean at Harvard, and her testimony has 

shown you that she is expert on constitutional law, highly intelligent, and has a fine sense of humor. Neither her testimony nor 

her professional record have given you plausible reasons to believe 

that she would protect the Second Amendment rights of the American people. 

Thank you. 

368 

[The prepared statement of David Kopel appears as a submission 

for the record.] 

Senator SCHUMER. Thank you, Mr. Kopel. 

And our last witness is William Olson. He is the principal of the 

law firm of William J. Olson, PC. He received his J.D. from the 

University of Richmond and his B.A. from Brown University. 

Mr. Olson. 

STATEMENT OF WILLIAM OLSON, PRINCIPAL, WILLIAM J. 

OLSON, PC 

Mr. OLSON. Thank you, Senator Schumer, and Senator Sessions, 

and Senator Hatch. 

Our law firm represents one of the Nation’s leading Second 

Amendment groups, Gun Owners of America, and we have filed 

amicus briefs in Supreme Court cases, such as Heller and McDonald. 

Despite the Court’s decisions in Heller and McDonald, Americans 

understand that the right to keep and bear arms continues to be 

in jeopardy. Both victories were achieved by narrow 5–4 votes. And 

Ms. Kagan is not a person who could be expected to defend the Second Amendment. 

Early in her career, Ms. Kagan evidenced visceral hostility to the 

people’s right to keep and bear arms as a law clerk to Justice 

Thurgood Marshall in the Sandidge case. I am familiar with that 

case, because, with Dan Peterson, I filed the only amicus brief supporting Mr. Sandidge. 

I searched for my Sandidge file, and here is what I found. Mr. 

Sandidge was an African-American man who worked at a laundromat in the District. He was required to carry his cash receipts 

with him to his apartment over the laundromat, which necessitated 

him leaving the building and walking around the street briefly between the two entrances. 

Mr. Sandidge had been robbed previously. When arrested, he was 

carrying a .25 semiautomatic pistol to protect himself. 

Ms. Kagan urged Justice Marshall to deny the petition for cert 

for one reason—‘‘I’m not sympathetic.’’ Supreme Court rules set 

forth the standards for granting cert. ‘‘I’m not sympathetic’’ is not 

among them. 

If Ms. Kagan meant that she was not sympathetic with his legal 

position, remember that the Sandidge court had ruled that the Second Amendment was only a collective right, not an individual right. 

If Ms. Kagan meant she was not sympathetic with Mr. Sandidge, 

Ms. Kagan turned her back on a man who was made into a felon 

for exercising his right to keep and bear arms. 

In 1997, in Printz v. United States, the Supreme Court struck 

down the Brady bill requirement that state and local law enforcement officers must work for the Federal Government, doing background checks on handgun sales. 

While that case was still pending, the Clinton White House was 

designing an end-run strategy should it lose the case, and Ms. 

Kagan was in the thick of it. 

An e-mail reveals her role. ‘‘Based on Elena’s suggestions, I have 

sought options as to what POTUS could do by executive action. For 

example, could he, by executive order, prohibit a Federal firearms 

369 

licensee from selling a handgun without a chief law enforcement officer certification? ’’ 

Ms. Kagan appears to have believed that the President could circumvent Congress and act without statutory authority to impose 

restrictions on firearms. 

Ms. Kagan then worked on the Presidential directive that would 

suspend the importation of firearms that were legal under the law 

that Congress had passed. 

When asked in these hearings by Senator Grassley on Tuesday 

of this week whether the Second Amendment codified a preexisting 

right or whether the right to keep and bear arms was created by 

the Constitution, she replied, ‘‘I never really considered the question.’’ 

When Senator Grassley asked whether the Second Amendment 

right was a fundamental right, Ms. Kagan said it was, because the 

majority of justices in the McDonald case said so. 

The Kagan view of rights is that they are whatever a majority 

of the Supreme Court rules at a particular time in a particular 

case. But under that philosophy, what the Court grants, the Court 

may take away. 

If Ms. Kagan does not know whether our inalienable right to defend ourselves from criminals and tyrants comes from God, as the 

Declaration of Independence states, or from government, she cannot be trusted to protect our God-given right to self-preservation. 

During these hearings, Ms. Kagan also acknowledged that Heller 

had precedential weight and agreed to abide by it, but refrained 

from providing her own personal views or whether the case was 

rightly decided. 

When asked whether the Second Amendment protected an individual right, she said, ‘‘There’s no question after Heller that the 

Second Amendment contains such a guarantee.’’ 

That is nice. But what about before Heller? Heller did not rewrite 

the Second Amendment. The Supreme Court decision only rejected 

a false notion that it protected only collective rights. 

Ms. Kagan’s answer that she is bound by Heller provides us no 

assurance that, as a justice, she is bound by the Second Amendment, as written by the framers. 

Thank you, Mr. Chairman. 

[The prepared statement of William Olson appears as a submission for the record.] 

Senator SCHUMER. Thank you, Mr. Olson. 

Now, I will give myself 5 minutes, and then we will call on Senator Sessions, then Senator Hatch. 

My first question is to Kim Askew. The standing committee’s report, ABA, focused on the concerns raised by some critics that Solicitor General Kagan does not have experience as a judge. 

In fact, according to your report, the overwhelming view of those 

interviewed thought it was important to also have judges who have 

spent a number of years outside the judiciary. 

Why do you believe broad legal experience outside the Judicial 

Branch would be beneficial to Elena Kagan, if she is confirmed as 

a justice on the Supreme Court? 

Ms. ASKEW. Thank you. The standing Committee is reporting the 

information that we received from the many lawyers and judges 

370 

that we interviewed as part of our peer review. And so what we 

present to you we think is the overwhelming position that we obtained in talking about that issue. 

We learned that many of the outstanding lawyers and judges believe that it is important to have former judges, and it is also important to have those who have some other background, as academicians, as practitioners, as government officials. 

When we look at the professional qualifications of a nominee, we 

look at the distinguished accomplishments that they bring in whatever area they have focused their careers in. 

That is what we did with General Kagan. There is no question 

that when we look at an appellate court, such as the Supreme 

Court, in addition to trial experience, we do not always require 

trial experience. We look at those things that relate to what an appellate court judge will do. 

We look for a high degree of legal scholarship. We look for academic talent. We look for analytical and writing abilities, and we 

look for overall excellence. And based on what we were able to conclude, she is certainly preeminent in all of those areas, and that 

is why the standing Committee came to its well qualified rating. 

Senator SCHUMER. Thank you. 

For Ms. Greenberger. A number of the witnesses had a view of 

Ledbetter that might be different than yours. Why do you view the 

Ledbetter case as a departure from precedent and practice? 

Ms. GREENBERGER. Well, let me just give a few specifics. When 

the Supreme Court decided Ledbetter, and it did so 5–4, it overturned 9 out of 10 court of appeals circuit decisions that would 

have decided the legal issue of whether she was allowed to bring 

her claim in court in Lilly Ledbetter’s favor. 

The only case out of the 10 circuits that decided differently was 

the Ledbetter court. That was a major departure. 

Second, although the government did, in the Solicitor General’s 

office, in the last administration when the opinion was issued, as 

was discussed in the panel earlier, side with Goodyear Tire. The 

case below had the government on Lilly Ledbetter’s side. 

The official and expert agency, the Equal Employment Opportunity Commission, that is charged with interpreting our anti-employment discrimination law for decades, had interpreted the law 

to allow cases like Lilly Ledbetter’s to go forward and was in her 

case on her side. 

Third, there was actually an extremely disturbing suggestion 

that her testimony that she did not learn about the nature of the 

pay discrimination until she received an anonymous note was not 

accurate. And there was a waived deposition supposedly establishing that she knew about this discrimination years before she 

filed the charge. 

No deposition that I have seen indicates that she had such 

knowledge. She has testified repeatedly that she had no knowledge. 

The jury below had believed that, as well. 

So for both the set of facts at issue, the law at issue, government 

longstanding interpretations at issue, this was a major change in 

the law by a 5–4 decision. And the dissenting opinion had gone 

through in great detail the distress of the four dissenting justices 

in the Supreme Court, and let me say it is not because it is the— 

371 

the concern is not because of a desire to have one driven agenda 

result versus another. 

The concern was because the role of the justices on the Supreme 

Court is to interpret the intent of the law and apply it as Congress 

intended it to apply. 

The pretty quick reversal demonstrated that the five justices had 

distorted Congress intent, had shifted what the intent of the law 

had meant to a point that it eviscerated the ability to ever bring 

a pay discrimination case in court. 

Senator SCHUMER. Thank you. 

Senator Sessions. 

Senator SESSIONS. Ms. Greenberg, I would just say that I am 

going to go back and look at that case. It is amazing we have such 

disagreements about it, and it went out on the floor and I am not 

sure I fully understand it. 

I do know that Congress felt that the statute was not artfully 

drawn and rewrote it so it would be clear. And one of the reasons 

lawyers are cautioned about criticizing courts is because they may 

be ruling on a basis of law that might not be apparent to others. 

So I think we need a fair analysis of it. 

Ms. Askew, when you say you talked to judges about Dean 

Kagan, I presume, unless it was in the last few months before the 

Supreme Court, there were not judges before whom she had practiced or tried cases. Is that correct? 

Ms. ASKEW. Mr. Kayatta, who is the lead evaluator on this, has 

informed me that he is not a potted plant and as the lead evaluator, he would like to add something. 

Senator SESSIONS. Well, just a question. Did you talk with any 

judge before whom she actually tried a case before a jury or before 

a judge? 

Mr. KAYATTA. No. Since she had not tried a case, we could talk 

to no judge. We did talk to judges before whom she had appeared 

and argued and we did talk to judges who knew her quite well in 

other circumstances, judges from what would be fairly described as 

both sides of—appointed by Presidents of both parties. 

Senator SESSIONS. Well, according to the Bar Association rules, 

as I understand it, in examining professional competence, the Committee has expressly stated that it, quote, ‘‘believes that a prospective nominee to the Federal bench ordinarily should have at least 

12 years of experience in the practice of law,’’ closed quote; and 

that, quote, ‘‘substantial courtroom and trial experience as a lawyer 

or trial judge is important,’’ closed quote. 

Now, I would just say that I learned so much more in the practice of law about how this magnificent, beautiful system operates 

than I did in law school, because it is difficult to have your hands 

around the reality of it. 

I found it difficult to understand how, when she did not meet 

those qualifications, that the Committee reached the highest rating 

for the highest score in the land. 

I know that the nominee is bright and that kind of thing, but I 

do think that perhaps the highest rating was not called for, and I 

would just share that. 

Mr. Chairman, I think received today or late yesterday, a letter 

from the National Rifle Association, who studies the issue and deVerDate Nov 24 2008 12:24 Aug 23, 2011 Jkt 067622 PO 00000 Frm 00381 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\67622.TXT SJUD1 PsN: CMORC
372 

fends the rights of individual Americans to keep and bear arms, 

has written a letter, at the conclusion of the hearing, opposing the 

nomination of Dean Kagan, Solicitor General Kagan, and I would 

offer that for the record. 

Chairman LEAHY. [Presiding.] without objection. 

[The letter appears as a submission for the record.] 

Senator SESSIONS. Mr. Olson, I think it was an important point 

you made, just briefly, because my time is short, the statement 

about the right to keep and bear arms, individual rights, those 

statements related, I think, as you correctly stated, to her statement of what the court held. 

It had no connection to whether she might conclude. That was 

very similar to now Justice Sotomayor, who made the same statement and was in the minority, the 5–4 case voting on not to uphold 

gun rights. Is that right? 

Mr. OLSON. Yes, sir. Actually, that is a characteristic displayed 

by some people who have a philosophy called judicial supremacism, 

which is to say that they respect what their fellow justices say, 

they respect what their predecessor justices say, but not so much 

what the framers said when they wrote the Constitution. And that 

was the danger of her view, as expressed yesterday. 

Mr. Kirsanow, I want to say I appreciate the Civil Rights Commission taking action to deal with the new Black Panther case and 

seeking to find the truth about that, because the Department of 

Justice should have the integrity in that division, among any division, all the divisions that is required, and I’m concerned about 

that and I believe this committee, Mr. Chairman, is going to have 

to have hearings on it. I appreciate the Civil Rights Commission 

for raising that. 

Mr. Kopel. Is my time out? 

Senator SCHUMER. We can go to a second round, if you wish. 

Senator Hatch. 

Senator HATCH. Thank you, Mr. Chairman. 

Let me begin with you, Dr. Yoest. As you know, whether an abortion in general or an abortion procedure in particular is medically 

necessary. It’s a very important issue in both the political and the 

legal arenas. 

Yesterday, I asked General Kagan about a 1996 memo that she 

wrote regarding legislative and political strategy in partial birth 

abortion issues. She noted that the American College of Obstetricians, or ACOG, had concluded that it could identify, quote, ‘‘no circumstances,’’ unquote, in which partial birth abortion would be the 

only option. 

General Kagan wrote, ‘‘This, of course, would be a disaster,’’ unquote, in her own memo. The memo includes her handwritten alternative language that the procedure, quote, ‘‘may be the best or 

most appropriate procedure in a particular circumstance,’’ unquote. 

Now, that is obviously a completely different spin, and it could 

easily have very different impact, both politically and legally. 

I have two questions for you about this memo. First, am I right 

that ACOG, in fact, adopted General Kagan’s positive language 

over its own language and that the Supreme Court relied on it in 

striking down Nebraska’s ban on partial birth abortion in the case 

of Stenberg v. Carhart? 

373 

Ms. YOEST. Yes, sir. You are correct. 

Senator HATCH. My second question is this. General Kagan told 

us yesterday that she characterized ACOG’s original no circumstances language as a disaster, because it did not accurately 

reflect ACOG’s own medical position. 

In other words, General Kagan told us that it would not be a political disaster for the Clinton Administration, but a public relations disaster for ACOG, if I interpreted her testimony correctly, 

and I think I did or I am. 

It seems a little odd that she would make a comment about medical accuracy in a memo about political and legislative strategy. 

It strikes me that this medical group was probably more qualified to state its own medical opinion about a medical issue than the 

White House staffer would be. 

But I’m wondering if, in your research and analysis of this issue, 

do you have any information or an opinion on the best or most possible way to do this? And was this an example of General Kagan 

trying to be medically accurate or politically savvy? 

Ms. YOEST. I appreciate you asking the question and raising the 

question, Senator Hatch, and this is one of the reasons we have 

asked the Committee to investigate the question further, because 

we believe there are a host of questions that this whole incident 

raises about her ability to set aside her tendency toward activism 

on this issue. 

As we look at the documentation that has come out of the White 

House in terms of the time line of her meeting with ACOG in June, 

this memo in December, the final statement coming out in January, we just think there are a lot of questions about what the interaction was between Ms. Kagan and the medical record. 

It seems to be very puzzling. Her statements seemed to be quite 

cryptic. And I would also just add that one of the reasons that we 

actually revised my oral testimony was to ensure that the record 

reflected that it was not just the ACOG situation, but, also, there 

was a pattern of behavior which was followed-up by us seeing a 

similar kind of interaction between her office at the White House 

and the American Medical Association. 

So this did not happen just in isolation in one case, but that 

there were two cases where a medical opinion that partial birth 

abortion was not medically necessary was—shall we say, there was 

an attempt to repackage it, possibly. 

Senator HATCH. Thank you. 

Mr. Chairman, I might take a little bit longer than the 35 seconds I have left. 

Senator SCHUMER. You have a second round, but we could do 

your second round now. 

Senator HATCH. I think it will be my last question or series of 

questions. 

Let me go to you, Mr. Kopel. Many of my constituents are concerned about how judicial appointments will affect the status of the 

right to keep and bear arms, especially in our State of Utah. 

Despite what some people, including a number of my Senate colleagues, may claim, I think the vast majority of Americans are 

pleased with the Court’s ruling in both the District of Columbia v. 

374 

Heller, that was in 2008, as well as McDonald v. City of Chicago 

earlier this week. 

Now, these decisions embody the obvious interpretation of the 

Second Amendment that the right to keep and bear arms is an individual right, a fundamental right, and a right that local, state 

and Federal Government must at all times respect. 

Now, some may fear that in the future, an activist Supreme 

Court may overturn these landmark decisions. They were both 5– 

4 decisions. 

The more immediate concern, however, may be that the lower 

courts might apply the Heller and McDonald decisions so narrowly 

that they have little or no practical effect, and that is the present 

concern. 

Courts can claim to be applying these precedents while strangling them and undermining the rights of law abiding gun owners. 

Now, how legitimate is this concern? And given what you know 

about General Kagan’s record in this area, is this something we 

should be thinking about as we consider whether to vote for or 

against her in our confirmation? 

Mr. KOPEL. I think, certainly, there are many issues about what 

is the legitimate scope of gun control, which the Heller and McDonald cases have not answers. 

So, for example, the Heller case said that you can ban the carrying of guns in sensitive places, such as schools and government 

buildings, and that seems to imply that there is a right to keep and 

bear arms in general public places. 

But that has not yet been litigated and a future Supreme Court 

might allow lower courts that were hostile to the right to say, ‘‘Oh, 

you can only have a right to have a gun in the home.’’ 

In fact, Mayor Daley is right now proposing replacement gun 

laws in Chicago, which would say you can only have one handgun 

per person in the home and you can never take the handgun outside the home. You cannot even take it onto the porch. 

So if someone is on your porch trying to burn your house down, 

you cannot step outside on the porch to do something about it. 

There are plenty of lower court judges who are, unfortunately, 

hostile to the right and without giving proper guidance by the Supreme Court, they might well uphold laws that would drastically 

reduce the practical effect of the Second Amendment. 

We also clearly saw that Justices Breyer, Sotomayor and 

Ginsberg want to overturn Heller. They are not content to merely 

chip away at it, but want to get rid of the—get the right as a meaningful individual right entirely. 

They have replaced it with a right that said, ‘‘Oh, it is individual, 

but it is only for the militia,’’ and who knows what the militia is. 

Maybe that is just when you are on duty in the National Guard. 

So they would make the second amendment, in a practical sense, 

nullified. 

Senator HATCH. Do you have any comment, Mr. Olson? 

Mr. OLSON. Yes, Senator. If you read the Heller case carefully, 

the opinion of even the dissenting judges, Justice Breyer and others, accepted the fact that the Second Amendment protected an individual right, but then went on to say it is all a matter of the 

scope of the right. 

375 

You have not even gotten that commitment from Solicitor General Kagan. In other words, if she were to go onto the Court with 

what we know about her now, she could be the most anti-gun justice on that Court. 

Senator HATCH. I appreciate all of your testimony here. I know 

you have all sincerely given us the best you can. 

This is a particularly difficult thing for a lot of us, because you 

cannot help but like Elena Kagan. You cannot help but recognize 

that she’s a scholar. You cannot help but recognize that she has a 

good sense of humor and that she is a decent person. 

But I remember—it was hard for me to vote against Sonia 

Sotomayor. But her comments before us, it seems to me, have not 

been lived up to with regard to this issue alone, and there may be 

others, as well. And the things that we were so worried about 

turned out to be proper worries. 

So this is always a difficult thing for us, especially when you 

have a nice, intelligent person and you want to support them. 

All I can say is this, Mr. Chairman. I am appreciative of all these 

witnesses. I understand that there are differing points of view and 

differing feelings about these matters. But we are talking about 

one of the most important positions in the world, one of nine, in 

the greatest court in the world, and it is something I take really 

seriously. 

So I am anguishing over this, without question. And I just want 

to thank each one of you for appearing. And, Mr. Chairman, thank 

you for being kind to me and letting me go ahead here. 

Senator SCHUMER. Thank you, Senator Hatch. 

Senator Sessions, do you want to ask some questions? I have one 

question. You can go first, and then I will ask my one question. 

Senator SESSIONS. All right. Thank you. I would offer, for the 

record, a recent op-ed or article on National Review Online concerning General Kagan’s abortion history or analysis of that. 

Senator SCHUMER. Without objection. 

[The article appears as a submission for the record.] 

Senator SESSIONS. Ms. Yoest, one thing that bothered me was 

that I had indicated in my opening statement that it appeared that 

Ms. Kagan, when she was working in the Clinton White House, 

convinced President Clinton, who was prepared to sign the partial 

birth abortion ban, apparently, that had passed with over 60 votes 

in the Senate, and that she perhaps convinced him not to do so. 

But she testified at the hearing, ‘‘I was, at all times, trying to 

ensure that President Clinton’s views and objectives with respect 

to this issue were carried forward,’’ suggesting that she simply— 

she did not provide any input one way or the other into that debate. 

Is that the way you read the record? What is a fair analysis of 

the facts on that? 

Ms. YOEST. Well, sir, in my written testimony, we detail that the 

counsel that she gave to President Clinton after she discovered that 

he was inclined to support a weak ban on the partial birth abortion, she wrote a memo to him claiming that a ban, a pre-viability 

ban on partial birth abortion would be unconstitutional. 

This is particularly troubling to us and I think should be to the 

committee, because bans on partial birth abortion are among the 

376 

most supported by the American people, by the vast majority of the 

American people. 

Yet, through her argument to President Clinton in that written 

record, she has already clearly indicated that she has prejudged, 

that she believes that the ban that has currently been upheld by 

the Supreme Court would be unconstitutional. 

So our concern is that she has demonstrated through that record 

a real hostility to very common sense regulations on abortion and 

that she would actually work toward taking our jurisprudence on 

the pro-life issue far beyond even what we have in Roe v. Wade 

right now. 

Senator SESSIONS. Well, thank you, for you and your leadership 

on the abortion issue. It is a matter of legitimate interest by millions of Americans who deeply are concerned about what they think 

is a procedure that is indecent and does not speak well of our Nation. 

I would ask, Mr. Perkins, maybe you and Ms. Yoest, briefly, since 

my time is about out, to share with us what you feel when a judge 

or a slim majority of the Court declares that the Constitution answers the question of whether abortion should be legal in America 

or not, and how much—when that happens, how difficult it is for 

the American people to see redress from a constitutional declaration on an intense social issue and moral issue as abortion. 

Mr. OLSON. Well, Senator Sessions, I believe that is the reason 

it is still being debated today, is because the Court interjected itself 

into that issue. And my concern over Elena Kagan and her propensity to advance these created rights for homosexuals, that we are 

going to see her write the Roe v. Wade of gay rights into the Supreme Court. 

So it is very concerning, because what happens is these issues 

are never resolved. And 35-plus years later, we are still debating 

this issue of life, and it will not go away until it is addressed in 

the right and appropriate forum. 

Senator SESSIONS. Do you agree, Ms. Yoest? 

Ms. YOEST. I think it is really important for us to recognize in 

the record that even scholars who support an abortion right agree 

that Roe v. Wade represents more of a political and policy agenda 

than anything that is rooted in the Constitution. 

Senator SESSIONS. I could not agree more. I am afraid that is so, 

and it has not gone away, like some justices thought, and it is still 

with us. 

Mr. Kopel, briefly, I do not think a lot of people who believe in 

the right to keep and bear arms, who believe that is a constitutional right, realize how fragile it is; how, with one vote different 

in Heller or one vote difference in McDonald, any city, any state, 

any county in America could possibly completely ban firearms, because they would basically be saying either it is not an individual 

right and it only applies to a militia of some sort or that if it is 

an individual right, the states are not bound to follow that constitutional principle. 

Am I overstating that? 

Mr. KOPEL. No. I think that is exactly right. And then what was 

at issue in McDonald was really the point of why the 14th Amendment was enacted, which was to make—after the Civil War and all 

377 

the troubles we had seen were caused by states being able to violate First and Second Amendment rights and other rights of American citizens, there was a decision to say that the whole Bill of 

Rights should apply to the whole country. 

If McDonald had gone the other way, maybe the right to arms 

would be still robust in places like Colorado under local decisions. 

But we do not want to just have the right be robust in places 

where it is has strong popular support. If you are an unpopular 

speaker, you should have your First Amendment rights, even if you 

are someplace where everybody else hates what you are saying. 

Likewise, your inalienable human right of self-defense exists 

wherever you live in the United States. You should not have to flee 

from one part of the country to another hopscotching around where 

your constitutional rights exist. That is the point of McDonald. The 

Constitution is for all of us, all over the country. 

Senator SESSIONS. Senator Schumer, I thank you and Chairman 

Leahy. I do believe it is healthy to have this panel and have people 

come before the country and be on C-SPAN and present official positions before this Senate, and I think it is a healthy part of democracy and I appreciate the Chairman allowing us to have this opportunity. 

Senator SCHUMER. Thank you. On behalf of the chairman, thank 

you for your kind remarks and thank you for your very avid participation in the entire hearing. 

I have one final question for Professor Sullivan. Some mention 

was made tonight about positions that General Kagan advocates on 

affirmative action while she was in the Clinton Administration. I 

have two questions. 

First, in general, were the Clinton Administration’s positions on 

affirmative action in line with the mainstream at the time? And 

second, did she ever, to your knowledge, while dean at Harvard, act 

inconsistently with the law on affirmative action? 

Mr. SULLIVAN. The answer to the first question is yes, and the 

answer to the second question is no. She did not act inconsistent, 

meaning that she acted quite consistently with those laws. 

One thing I would add, Senator Schumer, is I would just caution 

the public in inferring too much from positions as an advocate, as 

though those positions necessarily will translate into positions as 

a judge. 

We learn from the first day in law school that advocacy does not 

entail necessarily an acceptance of the position, but rather it is a 

particular skill that lawyers are quite well trained in. 

Now, it may imply something, but it is just not necessarily so. 

And sometimes I think that we prove too much in our statements 

with respect to people in different sort of roles. 

Senator SCHUMER. Thank you. 

Ms. Greenberger, do you want to say something? 

Ms. GREENBERGER. Just indulge me for a moment, yes. I know, 

of course, there are very deeply held views about whether Roe v. 

Wade should be overturned and that is not something that I wanted to address right now. And I do know, obviously, that that is a 

very important goal for Dr. Yoest and for Mr. Perkins, as well. 

What I did want to address was what sounded to me like a very 

serious charge regarding the actual record of women’s health. And 

378 

I think what would be very important and that I would commend 

this Committee to look at is the actual record in the cases, the physicians who testified under oath. 

For example, Justice O’Connor, in her opinion, referenced to a 

significant body of medical opinion regarding the fact that for some 

patients, and, of course, that means for some women, that it was 

a procedure that led to greater safety, with a detailing of the particular conditions. 

So I think that people can have a lot of different opinions, but, 

of course, because we are talking about a justice, the facts, what 

records show, what the trial courts found, that that is where the 

real wisdom would lie in this. 

I would urge looking at those facts, which are very consistent 

with Elena Kagan’s record in her attempt to bring the facts to the 

President’s attention. 

Senator SCHUMER. Thank you, Ms. Greenberger. 

With that, I want to thank all 10 of our witnesses for their differing, but all interesting and heartfelt testimony. And you have 

helped the panel and, I think, helped the country move further 

along in this process. 

So with that, these hearings are now adjourned. 

[Whereupon, at 8:08 p.m., the hearing was concluded.] 

[Questionnaire and questions and answers and submissions for 

the record follow.] 

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67622.434
811 


67622.435
812 


67622.436
813 


67622.437
814 


67622.438
815 


67622.439
816 


67622.440
817 


67622.441
818 


67622.442
819 


67622.443
820 


67622.444
821 


67622.445
822 


67622.446
823 


67622.447
824 


67622.448
825 


67622.449
826 


67622.450
827 


67622.451
828 


67622.452
829 


67622.453
830 


67622.454
831 


67622.455
832 


67622.456
833 


67622.457
834 


67622.458
835 


67622.459
836 


67622.460
837 


67622.461
838 


67622.462
839 


67622.463
840 


67622.464
841 


67622.465
842 


67622.466
843 


67622.467
844 


67622.468
845 


67622.469
846 


67622.470
847 


67622.471
848 


67622.472
849 


67622.473
850 


67622.474
851 


67622.475
852 


67622.476
853 


67622.477
854 


67622.478
855 


67622.479
856 


67622.480
857 


67622.481
858 


67622.482
859 


67622.483
860 


67622.484
861 


67622.485
862 


67622.486
863 


67622.487
864 


67622.488
865 


67622.489
866 


67622.490
867 


67622.491
868 


67622.492
869 


67622.493
870 


67622.494
871 


67622.495
872 


67622.496
873 


67622.497
874 


67622.498
875 


67622.499
876 


67622.500
877 


67622.501
878 


67622.502
879 


67622.503
880 


67622.504
881 


67622.505
882 


67622.506
883 


67622.507
884 


67622.508
885 


67622.509
886 


67622.510
887 


67622.511
888 


67622.512
889 


67622.513
890 


67622.514
891 


67622.515
892 


67622.516
893 


67622.517
894 


67622.518
895 


67622.519
896 


67622.520
897 


67622.521
898 


67622.522
899 


67622.523
900 


67622.524
901 


67622.525
902 


67622.526
903 


67622.527
904 


67622.528
905 


67622.529
906 


67622.530
907 


67622.531
908 


67622.532
909 


67622.533
910 


67622.534
911 


67622.535
912 


67622.536
913 


67622.537
914 


67622.538
915 


67622.539
916 


67622.540
917 


67622.541
918 


67622.542
919 


67622.543
920 


67622.544
921 


67622.545
922 


67622.546
923 


67622.547
924 


67622.548
925 


67622.549
926 


67622.550
927 


67622.551
928 


67622.552
929 


67622.553
930 


67622.554
931 


67622.555
932 


67622.556
933 


67622.557
934 


67622.558
935 


67622.559
936 


67622.560
937 


67622.561
938 


67622.562
939 


67622.563
940 


67622.564
941 


67622.565
942 


67622.566
943 


67622.567
944 


67622.568
945 


67622.569
946 


67622.570
947 


67622.571
948 


67622.572
949 


67622.573
950 


67622.574
951 


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952 


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953 


67622.577
954 


67622.578
955 


67622.579
956 


67622.580
957 


67622.581
958 


67622.582
959 


67622.583
960 


67622.584
961 


67622.585
962 


67622.586
963 


67622.587
964 


67622.588
965 


67622.589
966 


67622.590
967 


67622.591
968 


67622.592
969 


67622.593
970 


67622.594
971 


67622.595
972 


67622.596
973 


67622.597
974 


67622.598
975 


67622.599
976 


67622.600
977 


67622.601
978 


67622.602
979 


67622.603
980 


67622.604
981 


67622.605
982 


67622.606
983 


67622.607
984 


67622.608
985 


67622.609
986 


67622.610
987 


67622.611
988 


67622.612
989 


67622.613
990 


67622.614
991 


67622.615
992 


67622.616
993 


67622.617
994 


67622.618
995 


67622.619
996 


67622.620
997 


67622.621
998 


67622.622
999 


67622.623
1000 


67622.624
1001 


67622.625
1002 


67622.626
1003 


67622.627
1004 


67622.628
1005 


67622.629
1006 


67622.630
1007 


67622.631
1008 


67622.632
1009 


67622.633
1010 


67622.634
1011 


67622.635
1012 


67622.636
1013 


67622.637
1014 


67622.638
1015 


67622.639
1016 


67622.640
1017 


67622.641
1018 


67622.642
1019 


67622.643
1020 


67622.644
1021 


67622.645
1022 


67622.646
1023 


67622.647
1024 


67622.648
1025 


67622.649
1026 


67622.650
1027 


67622.651
1028 


67622.652
1029 


67622.653
1030 


67622.654
1031 


67622.655
1032 


67622.656
1033 


67622.657
1034 


67622.658
1035 


67622.659
1036 


67622.660
1037 


67622.661
1038 


67622.662
1039 


67622.663
1040 


67622.664
1041 


67622.665
1042 


67622.666
1043 


67622.667
1044 


67622.668
1045 


67622.669
1046 


67622.670
1047 


67622.671
1048 


67622.672
1049 


67622.673
1050 


67622.674
1051 


67622.675
1052 


67622.676
1053 


67622.677
1054 


67622.678
1055 


67622.679
1056 


67622.680
1057 


67622.681
1058 


67622.682
1059 


67622.683
1060 


67622.684
1061 


67622.685
1062 


67622.686
1063 


67622.687
1064 


67622.688
1065 


67622.689
1066 


67622.690
1067 


67622.691
1068 


67622.692
1069 


67622.693
1070 


67622.694
1071 


67622.695
1072 


67622.696
1073 


67622.697
1074 


67622.698
1075 


67622.699
1076 


67622.700
1077 


67622.701
1078 


67622.702
1079 


67622.703
1080 


67622.704
1081 


67622.705
1082 


67622.706
1083 


67622.707
1084 


67622.708
1085 


67622.709
1086 


67622.710
1087 


67622.711
1088 


67622.712
1089 


67622.713
1090 


67622.714
1091 


67622.715
1092 


67622.716
1093 


67622.717
1094 


67622.718
1095 


67622.719
1096 


67622.720
1097 


67622.721
1098 


67622.722
1099 


67622.723
1100 


67622.724
1101 


67622.725
1102 


67622.726
1103 


67622.727
1104 


67622.728
1105 


67622.729
1106 


67622.730
1107 


67622.731
1108 


67622.732
1109 


67622.733
1110 


67622.734
1111 


67622.735
1112 


67622.736
1113 


67622.737
1114 


67622.738
1115 


67622.739
1116 


67622.740
1117 


67622.741
1118 


67622.742
1119 


67622.743
1120 


67622.744
1121 


67622.745
1122 


67622.746
1123 


67622.747
1124 


67622.748
1125 


67622.749
1126 


67622.750
1127 


67622.751
1128 


67622.752
1129 


67622.753
1130 


67622.754
1131 


67622.755
1132 


67622.756
1133 


67622.757
1134 


67622.758
1135 


67622.759
1136 


67622.760
1137 


67622.761
1138 


67622.762
1139 


67622.763
1140 


67622.764
1141 


67622.765
1142 


67622.766
1143 


67622.767
1144 


67622.768
1145 


67622.769
1146 


67622.770
1147 


67622.771
1148 


67622.772
1149 


67622.773
1150 


67622.774
1151 


67622.775
1152 


67622.776
1153 


67622.777
1154 


67622.778
1155 


67622.779
1156 


67622.780
1157 


67622.781
1158 


67622.782
1159 


67622.783
1160 


67622.784
1161 


67622.785
1162 


67622.786
1163 


67622.787
1164 


67622.788
1165 


67622.789
1166 


67622.790
1167 

Æ 


67622.791