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55–828 PDF 2009

S. HRG. 111–361 

CONFIRMATION HEARINGS ON THE NOMINATIONS 

OF THOMAS PERRELLI NOMINEE TO BE ASSOCIATE ATTORNEY GENERAL OF THE UNITED 

STATES AND ELENA KAGAN NOMINEE TO BE 

SOLICITOR GENERAL OF THE UNITED STATES 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

FEBRUARY 10, 2009 

Serial No. J–111–81 

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 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

RON WYDEN, Oregon 

AMY KLOBUCHAR, Minnesota 

EDWARD E. KAUFMAN, Delaware 

ARLEN SPECTER, Pennsylvania 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

MATT MINER, Republican Chief Counsel 

(III) 

C O N T E N T S 

TUESDAY, FEBRUARY 10, 2009 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Cardin, Hon. Benjamin L., a U.S. Senator from the State of Maryland ............. 1 

prepared statement .......................................................................................... 198 

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

statement .............................................................................................................. 244 

PRESENTERS 

Reed, Hon. Jack, a U.S. Senator from the State of Rhode Island presenting 

Elena Kagan, Nominee to be Solicitor General, Department of Justice .......... 5 

STATEMENT OF THE NOMINEES 

Kagan, Elena, Nominee to be Solicitor General, Department of Justice ............ 46 

statement .......................................................................................................... 230 

Questionnaire .................................................................................................... 48 

Perrelli, Thomas J., Nominee to be Associate Attorney General, Department 

of Justice ............................................................................................................... 7 

statement .......................................................................................................... 269 

Questionnaire .................................................................................................... 9 

QUESTIONS AND ANSWERS 

Responses of Elena Kagan, to Questions submitted by Senators Coburn, Cornyn, Grassley, Hatch, Leahy, Sessions and Spector ......................................... 144 

Responses of Thomas J. Perrelli, to Questions submitted by Senators Coburn, 

Grassley, Spector and Wyden ............................................................................. 123 

SUBMISSIONS FOR THE RECORD 

Adler, J., National President, Federal Law Enforcement Officers Association, 

Lewisberry, Pennsylvania, letter ........................................................................ 181 

Allen, Ernie, President & CEO, National Center for Missing & Exploited 

Children, Alexandria, Virginia, letter ................................................................ 183 

Alliance Defense Fund (ADF), Scottsdale, Arizona, letter ................................... 184 

Berenson, Bradford A., Sidley Austin LLP, Washington, DC: 

January 28, 2009, letter ................................................................................... 191 

January 29, 2009, letter ................................................................................... 193 

Campbell, Nancy Duff, Co-President and Marcia D. Greenberger, Co-President, National Women’s Law Center, Washington, DC: 

January 23, 2009, letter ................................................................................... 195 

February 6, 2009, letter ................................................................................... 196 

Cappuccio, Paul T., Executive Vice President and General Counsel, Time 

Warner, New York, New York, letter ................................................................. 197 

Clement, Paul D., Partner, King & Spalding LLP, Washington, D.C., letter .... 201 

Delliner, Walter, Theodore B. Olson, Charles Fried, Kenneth W. Starr, Drew 

S. Days III, Walter Dellinger, Seth P. Waxman, Theodore B. Olson, Paul 

Clement, and Gregory G. Garre, joint letter ...................................................... 203 

Denniston, Brackett B., III, Senior Vice President and General Counsel, GE, 

Fairfield, Connecticut, letter ............................................................................... 205 

Donnelly, Elaine, President, Center for Military Readiness, Livonia, Michigan, 

letter ...................................................................................................................... 206 

Page

IV 

Estrada, Miguel A., Gibson, Dunn & Crutcher LLP, Washington, D.C., letter .. 207 

Flom, Joseph H., Skadden, Arps, Slate, Meagher & Flom LLP, New York, 

New York, letter ................................................................................................... 209 

Frey, Andrew L., Assistant to the Solicitor General, Deputy Solicitor General; 

Kenneth S. Geller, Assistant to the Solicitor General, Deputy Solicitor 

General, Philip Allen Lacovara, Assistant to the Solicitor General, Deputy 

Solicitor General, Andrew J. Pincus, Assistant to the Solicitor General, 

Stephen M. Shapior, Assistant to the Solicitor General, Deputy Solicitor 

General, Washington, D.C., joint letter .............................................................. 210 

Fried, Charles, Harvard Law School, Cambridge, Massachusetts, letter ........... 212 

Gansler, Douglas F., Attorney General of Maryland, Baltimore, Maryland, 

letter ...................................................................................................................... 214 

Goldsmith, Jack, L., Professor, Harvard Law School, Cambridge Massachusetts, letter ............................................................................................................ 216 

Gregorie, Christine O., Governor, State of Washington, Olympia, Washington, 

letter ...................................................................................................................... 218 

Harvard Law School Graduates, Cambridge, Massachusetts, letter ................... 219 

Hawkins, Kristan, Executive Director, Students for Life of America; Tony 

Perkins, President, Family Research Council; David N. O’Steen, Ph.D., 

Executive Director, National Right to Life Committee; Charmaine Yoest, 

President, Americans United for Life; Austin Ruse, President, Catholic 

Family and Human Rights Institute; Marjorie Dannenfelser, President, 

Susan B. Anthony List; Kris Mineau, President, Massachusetts Family 

Institute; Phyllis Schlafly, President, Eagle Forum; J.C. Willke, MD, President, International Right to Life Federation; Thomas Brejcha, President 

& Chief Counsel, Thomas More Society; Peter Breen, Executive Director 

& Legal Counsel, Thomas More Society; Joseph A. Brinck, President, Sanctity of Life Foundation; Jennifer Giroux, Executive Director, Women Influencing the Nation; Samuel B. Casey, General Counsel, Law of Life Project, 

Advocates International, Gary Bauer, President of American Values; Brian 

Burch, President of CatholicVote.org; David Bereit, National Director, 40 

Days for Life; Jull Stanch, RN, WorldNetDaily Columnist; Peggy 

Hartshorn, President, Heartbeat International; Michaels Geer, President, 

Pennsylvania Family Institute; Bryan Kemper, President, Stand trueChrist Centered Pro-life; John T. Bruchalski, MD, FACOG, Divine Mercy 

Care; James Nolan, President, Crossroads Pro-life; Marie Bowen, Executive 

Director, Presbyterians Pro-Life; Jennifer Kimball, Be.L., Executive Director, Culture of Life Foundation; Jo Tolek, Executive Director, Human Life 

Alliance; Dean Nelson, Executive Director, Network of Politically Active 

Christians; Chris Slattery, President, Expectant Mother Care-EMC 

FrontLing Pregnancy Centers, New York City; Rev. Louis Sheldon, Chairman, Traditional Values Coalition; Andrea Lafferty, Executive Director, 

Traditional Values Coalition, joint letter ........................................................... 221 

Horowitz, Lisa, President, National Association of Women Lawyers, Washington, D.C., letter ............................................................................................... 226 

Joffe, Robert D., Cravath, Swaine & Moore LLP, New York, New York, 

letter ...................................................................................................................... 228 

Katz, Robert J., Senior Director, Goldman Sachs Group, Inc., New York, 

New York, letter ................................................................................................... 232 

Keisler, Peter D., Sidley Austin LLP, Washington, D.C., letter .......................... 234 

Kindler, Jeffrey B., Chairman of the Board, Chief Executive Oficer, Pfizer, 

New York, New York, letter ................................................................................ 235 

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

Law School; T. Alexander Aleinikoff, Dean, Georgetown University Law 

Center; Evan H. Caminker, Dean, University of Michigan Law School; 

Michael A. Fitts, Dean, University of Pennsylvania Law School; Harold 

H. Koh, Dean and Gerard C. and Bernice Latrobe Smith Professor of 

International Law, Yale Law School; David F. Levi, Dean, Duke University 

School of Law; Saul Levmore, Dean and William B. Graham Professor 

of Law, University of Chicago Law School; Paul G. Mahoney, Dean, University of Virginia School of Law; Richard L. Revesz, Dean and Lawrence 

King Professor of Law, New York University School of Law; David M. 

Schizer, Dean, Columbia University School of Law; and David van Zandt, 

Dean, Northwestern University School of Law, joint letter ............................. 237 

Leadership Conference on Civil Rights, Wade Henderson, President & CEO, 

and Nancy Zirkin, Executive Vice President, Washington, DC: 

February 9, 2009 .............................................................................................. 239 

Page

V 

Leadership Conference on Civil Rights, Wade Henderson, President & CEO, 

and Nancy Zirkin, Executive Vice President, Washington, DC—Continued 

February 24, 2009 ............................................................................................ 241 

Leary, Mary Lou, National Center for Victims of Crime, Washington, D.C., 

letter ...................................................................................................................... 243 

Lee, Bill Lann, Attorneys at Law, Lewis, Feinberg, Lee, Renaker & Jackson, 

P.C., Oakland, California, letter ......................................................................... 247 

Lee, William F., Co-Managing Partner, WilmerHale, Boston, Massachusetts, 

letter ...................................................................................................................... 249 

Lichtman, Judith I., Senior Advisor, National Partnership for Women & Families, Washington, D.C., letter ............................................................................. 250 

Lipton, Martin, Wachtell, Lipton, Rosen & Katz, New York, New York, letter . 251 

Major Cities Chiefs Association, Gil Kerlikowske, President, Columbia, Maryland, letter ............................................................................................................ 252 

Manning, John F., Bruce Bromley Professor of Law, Harvard Law School, 

Cambridge, Massachusetts, letter ...................................................................... 253 

Marcus, Daniel, Associate and Acting Attorney General, Fisher, Raymond 

C., Associate Attorney General, Dwyer, John C., Acting Associate Attorney 

General, Washington, D.C., joint letter .............................................................. 255 

McCartney, Kevin R., Senior Vice President Government Relations, Boys 

& Girls Clubs of America, Washington, D.C., letter ......................................... 256 

Miller, Judith A., Senior Vice President and General Counsel, Bechtel Group, 

Inc., letter ............................................................................................................. 257 

Moore, Margaret M., Director, Wifle, Arlington, Virginia, letter ........................ 258 

NAACP Legal Defense and Education Fund, Inc., Payton, John, President 

and Director-Counsel, Washington, D.C., letter ................................................ 259 

National Association of Police Organizations, William J. Johnson, Executive 

Director, Alexandria, Virginia, letter ................................................................. 262 

National Crime Prevention Council, Alfonso E. Lenhardt, President and CEO, 

Arlington, Virginia ............................................................................................... 263 

National Fraternal Order of Police, Chuck Canterbury, National President, 

Washington, D.C., letter ...................................................................................... 265 

Native American Rights Fund, John E. Echohawk, Executive Director, Washington, D.C., letter ............................................................................................... 266 

Orazem, Geoff, Hagan Scotten and Erik Swabb, Cambridge, Massachusetts, 

letter ...................................................................................................................... 268 

Police Executive Research Forum, Chuck Wexler, Executive Director, Washington, D.C., letter ............................................................................................... 271 

Ramo, Roberta Cooper, Modrall Sperling Lawyers, Albuquerque, New Mexico, 

letter ...................................................................................................................... 272 

Reed, Hon. Jack, a U.S. Senator from the State of Rhode Island ....................... 274 

Reno, Janet, former Attorney General; Patricia Wald, Assistant Attorney 

General, Legislative Affairs; Loretta C. Argrett, Assistant Attorney General, 

Tax Division; Lois Schiffer, Assistant Attorney General, Environment and 

Natural Resources Division; Jamie S. Gorelick, Deputy Attorney General; 

Eleanor D. Acheson, Assistant Attorney General, Office of Policy Development; and Jo Ann Harris, Assistant Attorney General, Criminal Division, 

joint letter ............................................................................................................. 275 

Page

VI 

Robinson, Ron, President, Young America’s Foundation; Flagg Youngblood, 

Director of Military Outreach, Young America’s Foundation; Colin A. 

Hanna, President, Let Freedom Ring; Tom McClusky, Vice President of 

Government Affairs, Family Research Council; Ron Pearson, President, 

Council for America; Frank Gaffney, President and CEO, Center for Security Policy; William J. Murray, Chairman, Religious Freedom Coalition; 

Tom Fitton, President, Judicial Watch; Cliff Kincaid, President, America’s 

Survival, Inc.; Alex-St.James, Chairman, African American Republican 

Leadership Council; C. Preston Noell III, President, Tradition, Family, 

Property, Inc.; Elaine Donnelly, President, Center for Military Readiness; 

Keith Wiebc, President, American Association of Christian Schools; 

Angelise Anderson, Executive Administrator, Coalition on Urban Renewal 

and Education; Gary Marx, Executive Director, Judicial Confirmation Network; Kay Daly, President, Coalition for a Fair Judiciary; Richard W.C. 

Falknor, Chairman, Maryland Center-Right Coalition; Jim Martin, President; 60 Plus Association; Phyllis Schlafly, President and Founder, Eagle 

Forum; Larry Cirignana; Jeff Gayner, Chairman, Americans for Sovereignty; Clare M. Lopez, Vice President, Intelligence Summit; Dee Hodges, 

Chairman, Maryland Taxpayers Association; and Mark Williamson, Founder and President, Federal Intercessors, joint letter .......................................... 277 

Scharf, Stephanie A., President, National Association of Women Lawyers, 

Chicago, Illinois, letter ......................................................................................... 279 

Sharpless, Andrew, Chief Executive Officer, Oceana, Washington, D.C., Daniel B. Magraw, Jr., President, Center for International Environmental Law, 

Washington, D.C., Trip Van Noppen, President, Earthjustice, Oakland, 

California, Greer S. Goldman, Assistant General Counsel, National Audubon Society, Washington, D.C., joint letter ........................................................ 281 

Sloan, Clifford M., Partner, Skadden, Arps, Slate, Meagher & Flom, Washington, D.C., letter ............................................................................................... 283 

Strauss, David A., Gerald Ratner Distinguished Service Professor of Law, 

University of Chicago, Chicago, Illinois, letter .................................................. 285 

Tribe, Laurence H., Carl M. Loeb University Professor, Harvard University, 

Cambridge, Massachusetts, letter ...................................................................... 286 

Washington Times, February 5, 2009, letter to editor ......................................... 289 

Wildmon, Donald E., Founder and Chairman, American Family Association; 

Gary L. Bauer, President, American Values; Tom Minnery, Senior Vice 

President, Government and Public Policy Focus on the Family; Kelly 

Shackelford, Esq., President, Free Market Foundation; Carl Herbster, 

President, AdvanceUSA; Micah Clark, Executive Director, American Family 

Association of Indiana; Phil Jaurequi, Esq., President, Judicial Action 

Group, Inc.; Diane Gramley, President, American Family Association of 

Pennsylvania; David Crowe, Restore America; Dale Burroughs, Founder 

and President, Biblical Heritage Institute; John Stemberger, Esq., President and Chief Counsel, Florida Family Action; Maurine Proctor, President, 

Family Leader Network; Tom Shields, Chairman, Coalition for Marriage 

and Family; David E. Smith, Executive Director, Illinois Family Institute; 

Jeremiah G. Dys, Esq., President and General Counsel, The Family Policy 

Council of West Virginia; Ron Shuping, Executive VP of Programming, 

The Inspiration Networks; Colin A. Hanna, President, Let Freedom Ring; 

Jim Garlow, Executive Director, California Pastors Rapid Response Team, 

joint letter ............................................................................................................. 290 

Women’s Bar Association of the District of Columbia, Jennifer Maree, President, Washington, D.C., letter ............................................................................ 292 

Wright, Wendy, President, Concerned Women for America, Washington, D.C. 

letter ...................................................................................................................... 294 

(1) 

EXECUTIVE NOMINATIONS 

TUESDAY, FEBRUARY 10, 2009 

U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Committee met, pursuant to notice, at 10:03 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Benjamin L. Cardin, 

presiding. 

Present: Senators Cardin, Feinstein, Feingold, Whitehouse, 

Wyden, Klobuchar, Kaufman, Specter, Hatch, Kyl, Graham, and 

Coburn. 

OPENING STATEMENT OF HON. BENJAMIN L. CARDIN, A U.S. 

SENATOR FROM THE STATE OF MARYLAND 

Senator CARDIN. The Committee will come to order. First, let me 

thank Chairman Leahy for allowing me to chair today’s hearing. 

Today we consider two important nominations for leadership positions in the Department of Justice. These are the nominations of 

Thomas Perrelli to be Associate Attorney General of the United 

States and Elena Kagan to be Solicitor General of the United 

States. 

I agree with Chairman Leahy that this Committee should move 

quickly to continue to restore the morale and integrity of the Department. I am pleased that this Committee recently reported out 

Attorney General Eric Holder to be Attorney General of the United 

States with a strong, bipartisan vote of 17 to 2, and that the full 

Senate overwhelmingly confirmed his appointment shortly thereafter. 

The Associate Attorney General is the No. 3 position at the Department of Justice. This official oversees a wide range of offices 

at the Justice Department, including the Civil Rights, Civil, Antitrust, Environment, and Tax Divisions, as well as the Office of Justice Programs. 

Thomas Perrelli comes to this Committee with an impressive 

range of experience in both the private and public sectors. He 

served as counsel to Attorney General Janet Reno from 1997 to 

1999. For the final 2 years of the Clinton Administration, he served 

as Deputy Assistant Attorney General, where he supervised the 

Federal Programs Branch of the Civil Division, representing nearly 

every Federal agency in complex civil litigation. In that role, Mr. 

Perrelli supervised a staff of 100 attorneys responsible for defending the constitutionality of Federal statutes, defending Federal 

agency actions and regulations, representing both the diplomatic 

and national security interests of the United States in courts of 

2 

law, and conducting a wide range of other litigation. He also supervised the Department’s Tobacco Litigation Team’s lawsuit against 

major tobacco companies. 

In the private sector, Mr. Perrelli worked for many years at the 

Washington law firm of Jenner & Block, handling a caseload including constitutional, intellectual property, and appellate cases, as 

well as a wide range of complex civil litigation matters. 

Most recently, he served on President Obama’s Justice Department Transition Team. He is a graduate of Brown University and 

Harvard Law School. 

I also want to note for the record that Mr. Perrelli has received 

the endorsement of several law enforcement organizations, such as 

the Federal Law Enforcement Officers Association and the National Fraternal Order of Police, as well as the National Center for 

Missing and Exploited Children. These letters will be made part of 

our record. 

Elena Kagan also comes to this Committee with a wide range of 

experience, having served as the dean of a law school, a law professor, a senior official at the White House, a lawyer in private 

practice, and a legal clerk for a Justice of the Supreme Court. 

A graduate of Princeton University and Harvard Law School, Ms. 

Kagan clerked for Justice Thurgood Marshall on the Supreme 

Court and then worked as an associate at the Washington law firm 

of Williams & Connolly. While teaching law school at the University of Chicago, she took on another assignment as special counsel 

to Senator Joe Biden, a distinguished former Chairman of this 

Committee. Ms. Kagan assisted in the confirmation hearings of Supreme Court Justice Ruth Bader Ginsburg. 

In 1995, Ms. Kagan served as President Clinton’s Associate 

White House Counsel, Deputy Assistant to the President for Domestic Policy, and Deputy Director of the Domestic Policy Council. 

In the White House Counsel’s Office, she acted as a lawyer for the 

White House policy councils and legislative offices, analyzing and 

drafting statutory language and executive actions, and offering policy advice. In the Domestic Policy Council office, she played a role 

in the executive branch’s formulation, advocacy, and implementation of laws and policies in a wide variety of issues. 

In 1999, Ms. Kagan left Government and began serving as a professor at Harvard Law School, teaching administrative law, constitutional law, civil procedure, and a seminar on legal issues and 

the Presidency. In 2003, she was appointed to serve as Dean of the 

Harvard Law School, becoming the first woman dean in the 

school’s history. In her 5 years at Harvard Law School, Dean 

Kagan has overseen both the academic and non-academic aspects 

of the law school. I will enter into the record a letter from the 

deans of 11 major law schools in support of her nomination. 

The Solicitor General of the United States holds a unique position in our Government. It is one of the few Government positions 

in which the occupant must be ‘‘learned in the law,’’ pursuant to 

a statute enacted by Congress. The Solicitor General is charged 

with conducting all litigation on behalf of the United States in the 

Supreme Court and is often referred to as the ‘‘tenth Justice.’’ Indeed, the Supreme Court expects the Solicitor General to provide 

the Court with candid advice during oral argument and the filing 

3 

of briefs on behalf of the United States. The office participates in 

about two-thirds of all the cases that the Court decides on the merits each year. 

So it is indeed high praise for Dean Kagan that former Solicitors 

General Walter Dellinger and Ted Olson joined with six other Solicitors General of both parties in endorsing her nomination. I will 

make that letter also part of the record. It is very complimentary 

of our nominee. 

At the same time, we expect the Solicitor General to exercise 

independent judgment from the Department of Justice, the Attorney General, and even the President of the United States. The office is charged with vigorously defending statutes duly enacted by 

Congress against constitutional challenges. The office also supervises all lower court appellate litigation and decides whether to appeal decision that are adverse to the Government and what position should be taken on the merits of the case. 

So let me thank the two nominees for being willing to continue 

to serve their country. I also want to thank their families, and we 

will have an opportunity for them to introduce their families as the 

confirmation hearing continues. And at this time, let me recognize 

the Republican leader on our Committee, Senator Specter. 

Senator SPECTER. Thank you, Mr. Chairman. At the outset, may 

I say that your work on the Committee has been outstanding. You 

have been here a little more than 2 years, you come as an experienced lawyer, and now you are already the Chairman of the Committee—pardon me, Acting Chairman. 

[Laughter.] 

Senator CARDIN. It is a great country. 

Senator SPECTER. Acting Chairman of the Committee, which is 

quite a testimonial to you. But we have worked together closely in 

the 2 years, and it is nice to work with a lawyer’s lawyer, which 

you are, Senator Cardin. 

Senator CARDIN. Thank you. 

Senator SPECTER. I join you in welcoming the two nominees. 

Both present outstanding academic credentials, and in the situation with Dean Kagan, she is now the Dean of the Harvard Law 

School to supplement her outstanding academic work and professional work. 

The Senate has a broad responsibility under the Constitution on 

confirmations to make inquiries beyond even extraordinary resumes like those presented here today. In evaluating President 

Obama’s nominees, we see perhaps what is a cautionary word during the campaign when Candidate Obama had this to say about 

judges. Now, Solicitor General is a little different—substantially 

different, really, from a judge, as is the position of Associate Attorney General. But in trying to evaluate approaches, it is, I think, 

fair to look at philosophy. 

This is what Candidate Obama had to say: ‘‘We need somebody 

who has got the heart, the empathy to recognize what it is like to 

be a young teen-age mom, the empathy to us understand what it 

is like to be poor or African American or gay or disabled or old. 

That is the criteria by which I am going to be selecting my judges.’’ 

Well, I agree with the need for consideration on the disadvantage, no doubt about it, on the categories identified by Candidate 

4 

Obama. But we also have to make an inquiry as to the commitment to the law and that nominees for key positions in the Department of Justice like judges have followed the law, that if there are 

to be changes made, it is well established as a matter of philosophical doctrine that it is up to the legislature to do that. 

When Dean Kagan came to see me, I asked her about a number 

of her writings, and we will be going into those today. And she 

made a sharp distinction, which I understand, as to what a nominee may think about a given situation contrasted with the advocacy role, which she sharply distinguishes, and represents that she 

can be an advocate as Solicitor General on issues that she does not 

agree with philosophically. 

Well, I understand that distinction, and the issue that inevitably 

arises is how effective is somebody who is arguing for something 

which they deeply disagree with, and Dean Kagan is a person who 

has very deep views. I cite only one in this introduction, and I 

talked to her about it. She was discussing the Solomon amendment 

on the issue of ‘‘Don’t ask, don’t tell,’’ and I can understand the 

challenge to the underlying basis of the Solomon amendment. But 

this is what she said: ‘‘As dean, we instated military recruiters to 

the Harvard Law School because to do otherwise would have been 

to forfeit a great deal of Federal funding.’’ And she noted that the 

‘‘action caused her feet distress,’’ and that she finds the military’s 

policies to be ‘‘a profound wrong, a moral injustice of the first 

order.’’ 

Well, one consideration would be if you think of something as a 

moral injustice of the first order, how can you in good conscious be 

an effective advocate. And this bears on the ability to apply the 

law. 

Now, Dean Kagan countered with a statement, well, the Solicitor 

General has the obligation to uphold the constitutionality of the 

law. There is a strong presumption of constitutionality. And I commented to her about a case when I was district attorney where the 

Pennsylvania statute treating women differently than men—they 

were given indeterminant sentences so that if they were convicted 

of larceny, for example, they went to a women’s prison, and having 

served the maximum prescribed by statute, 5 years, they could be 

kept longer. And when I was asked to defend the statute, I refused. 

And they brought in the State Attorney General who defended the 

statute, and the statute was stricken. 

But there is a real issue here as to the range of advocacy or perhaps the intensity of advocacy, so I make those very brief introductory comments, Mr. Chairman, to sort of set the parameters, and 

we have also the Associate Attorney General, and we have our responsibility to uphold, to make these inquiries under the Constitution to decide whether we should consent and approve the nominations. 

Thank you, Mr. Chairman. 

Senator CARDIN. Thank you, Senator Specter. 

At this time I will recognize Senator Jack Reed from Rhode Island for the purposes of introductions. Senator Reed, it is a pleasure to have you before our Committee. 

5 

STATEMENT OF HON. JACK REED, A UNITED STATES SENATOR 

FROM THE STATE OF RHODE ISLAND 

Senator REED. Thank you, Mr. Chairman, and thank you, Ranking Member Specter. It is an honor to appear here this morning to 

introduce Dean Elena Kagan. 

Dean Kagan and I both attended Harvard Law School, but it is 

obvious she is much younger and a much, much better lawyer. But 

I have been following her career with great pride since her days 

not only at Harvard, but as she clerked for Judge Abner Mikva on 

the U.S. Court of Appeals for the D.C. Circuit and for Justice 

Thurgood Marshall on the United States Supreme Court—two giants of American jurisprudence. 

As the Chairman indicated, she went on to teach law at the University of Chicago Law School. She served in the Clinton administration, and then she returned to Harvard Law School in 1999. 

During her tenure as Dean of the Harvard Law School, she has 

drawn acclaim as a pragmatic problem solver who could bridge ideological divides among the faculty and the student body. She hired 

new professors with diverse areas of expertise and views, and she 

ushered in a number of far-ranging student-oriented reforms to the 

law school. She has also won praise from current and former students who have served our country in uniform for creating an environment that is highly supportive of students who have served in 

the Armed Forces of the United States. I know that because I have 

met with many of these young men and women who served and 

now are students at or recent graduates of the Harvard Law 

School, and they are uniformly praiseful of Dean Kagan. 

She is eminently qualified to become Solicitor General of the 

United States, and it is not just her impressive resume and brilliant mind. It is her wisdom and her temperament and her commitment to the Constitution. 

In October 2007, Dean Kagan gave a speech at my alma mater, 

West Point. She was invited there to speak to the cadets, and she 

told the cadets that our Nation is most extraordinary because, as 

she said, we ‘‘live in a Government of laws, not of men and 

women.’’ 

As a touchstone for this speech, she used a place on the West 

Point campus called Constitution Corner. This is the place at which 

the cadets are reminded of their obligations as soldiers. One of the 

plaques at the site is etched with the phrase, a very simple phrase, 

‘‘Loyalty to the Constitution.’’ That was a watch word for all of us. 

She understands that it is our duty to the Constitution which is 

preeminent. 

She spoke that day about how our law and our dedication to law, 

the rule of law, is especially during trying times. She used the examples of President Nixon’s Attorney General, Archibald Cox, and 

President Bush’s Attorney General, John Ashcroft, as examples of 

men who sought to uphold the rule of law in very trying circumstances and put doing the right thing above all else. 

If confirmed, I believe General Kagan will be an outstanding Solicitor General. She brings exceptional qualifications to the job and 

will be a tough, fair, and powerful advocate for the Constitution 

and the people of the United States, and I comment her to this 

Committee, and I thank you all. 

6 

Senator CARDIN. Thank you very much, Senator Reed. I appreciate your being here. 

At this time I would ask our witnesses to come forward, if they 

would, please. If you would stand in order to be sworn in. Do you 

affirm that the testimony you are about to give before the Committee will be the truth, the whole truth, and nothing but the 

truth, so help you God? 

Mr. PERRELLI. I do. 

Ms. KAGAN. I do. 

Senator CARDIN. Thank you. Well, perhaps the best way to start 

is first to thank you all for being here, and I appreciate your families being here. 

[Laughter.] 

Senator CARDIN. Perhaps at this time it might be appropriate if 

you would introduce the members of your family. We have already 

heard from one. 

[Laughter.] 

Senator CARDIN. But if we could hear from the rest, it would 

be—so, Mr. Perrelli, if you would go first and perhaps introduce the 

members of your family who are here. 

Mr. PERRELLI. Thank you, Senator. I think you have met my son, 

James, who I think will be excused momentarily, and this is my 

wife, Kristine. I have got my mother, Nancy, and my Aunt Lucy, 

who just celebrated her 90th birthday, from Barre, Vermont. I am 

also joined by my sister, Caryn; my brother-in-law, Scott. I have 

also got my brother-in-law Kevin, who made the trip from Madison, 

Wisconsin. I have got my extended family: Lieutenant Matthew 

Trivett of the Montgomery County Fire Marshal Bomb Squad, and 

Sergeant David Trivett of the Baltimore County Homicide Unit. 

Thank you. 

Senator CARDIN. Thank you. 

Dean Kagan. 

Ms. KAGAN. Well, Tom and I laughed because he brought all his 

family, and I left most of mine at home. But I have two wonderful 

brothers who are here, city public school teachers. I excused them 

from coming down. But my older brother’s daughter, my niece Rachel, is here. She is graduating from college this year. She is looking forward to law school. I think she is going to be a splendid lawyer. And then I brought a little bit of family from Cambridge, you 

might say, some of my great friends from Harvard Law School: 

Charles Fried, a former Solicitor General himself, who is here; Jack 

Goldsmith, Dan Meltzer, John Manning, Martha Minow, Carol 

Steiker—all great friends of mine, and I very much appreciate their 

coming down to support me. 

Senator CARDIN. Well, we welcome your families, and we know 

the sacrifices that they have to make in regards to your public 

service, and we thank them for that. 

I want to acknowledge for the record that Senator Webb and 

Senator Warner wanted to be here to introduce Mr. Perrelli, but 

they were called upon on other Senate business, and we will allow 

their statements to be made part of the record. 

Mr. Perrelli, we would be glad to hear from you. 

7 

STATEMENT OF THOMAS J. PERRELLI, TO BE ASSOCIATE 

ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE 

Mr. PERRELLI. Mr. Chairman, Senator Specter, and members of 

the Committee, thank you for giving me the opportunity to appear 

before you as the nominee for the position of the Associate Attorney 

General. I am grateful to the President and the Attorney General 

for giving me the opportunity to be considered for this post and to 

serve again in the Department of Justice, an organization that I revere. 

I would like to thank the members of the Committee and their 

staffs who have met with me to start what I hope will be a dialog 

about the issues facing the country and the Department of Justice. 

There is deep knowledge in this Committee about the many challenges ahead, and I hope that I have the opportunity to work with 

you to overcome them. 

I would like to thank Senators Webb and Warner for the statements of support that have been submitted for the record. 

I would not be here today without the love of my family and a 

great deal of good fortune. I want to thank first the love of my life, 

my wife, Kristine, for all of her love, help, and support—especially 

now with a new baby arriving any day. She is here—and you have 

already my son, James. 

I also want to thank my mother, Nancy Perrelli, who has been 

an inspiration to me for many years, not the least of which is all 

that I learned by watching her, as a single parent, work full days, 

take care of me and my sister, and go to law school at night. 

Missing from the large contingent behind me is my father, also 

Tom Perrelli. He passed away in 2002 after a long struggle with 

cancer. But I think of him today because my father was one of the 

career professionals who are at the heart of the Department of Justice. He made his career there and, indeed, he refused to retire 

until only a day or two before he died because it was part of what 

defined him. 

My own reverence for the Department began through him. As a 

college student,I worked summers at the Immigration and Naturalization Service, mainly on IT projects, but I had the opportunity 

to experience lots of different aspects of the Department, including 

getting to visit the men and women on the border in San Diego to 

learn the extraordinary challenges that they face and the remarkable job that they do. 

In my time as a summer intern, I had the unusual opportunity 

to talk with then-Attorney General Meese, who was kind to stop 

several times to talk to me when he was exiting the building and 

I was waiting at the bus stop for a shuttle. 

When I completed law school, I clerked for the Honorable Royce 

Lamberth of the U.S. District Court for the District of Columbia— 

himself a lifelong public servant and veteran of the Judge Advocate 

General Corps, and the U.S. Attorney’s Office in DC. In that job, 

I saw the best of Government lawyers, prosecuting cases from Irancontra to drug gangs on the streets of DC, and defending the 

United States in cases from the savings and loan crisis to environmental regulation of nuclear power plants. 

All of those experiences left me with a deep appreciation for the 

Department—its mission and the extraordinary people who carry it 

8 

out. That appreciation increased exponentially later in my career 

when I first served first as Counsel to the Attorney General and 

later as Deputy Assistant Attorney General in the Civil Division. 

The men and women who serve in the Department from Administration to Administration, from law enforcement agents of the FBI, 

DEA, and ATF who put their lives on the line every day, to lawyers 

and staff whose sole goal is fair, evenhanded application of the law, 

and representation of the interests of the United States, are remarkable and deserve more praise than they ever receive. 

I am honored to have been nominated to serve as Associate Attorney General and to have the opportunity to work again among 

the career professionals at the Department. But I have no illusions 

about the size of the task. The challenges that the Department 

faces today are enormous, and they derive from its mission, which 

has expanded greatly since September 11th, from the constraints 

on its resources, which have limited its ability, and from management and other problems that are perhaps self-inflicted. 

My vision is a Justice Department of which all Americans can be 

proud—a Department that keeps America safe from threats foreign 

and domestic, a Department that at every level makes the evenhanded application of the law and the representation of the interests of the United States without regard to party or personal views 

a priority; a Department that works in partnership with State, 

local, and tribal authorities to most efficiently protect the public 

and make communities safe; a Department that is transparent and 

gives to the American public confidence that the rule of law and 

the Constitution are paramount; and a Department that works 

with this Committee and others in Government to collaborate on 

the many challenges ahead. 

I look forward to answering your questions. Thank you, Mr. 

Chairman. 

[The prepared statement of Mr. Perrelli appears as a submission 

for the record.] 

[The Questionnaire of Mr. Perrelli follows.] 

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Senator CARDIN. Thank you very much. 

Dean Kagan. 

STATEMENT OF ELENA KAGAN, TO BE SOLICITOR GENERAL, 

U.S. DEPARTMENT OF JUSTICE 

Ms. KAGAN. Thank you, Mr. Chairman. 

Mr. Chairman and members of the Committee, I am deeply honored to be sitting here today. And, of course, I am grateful. I am 

grateful to the President for nominating me to this important position. I am grateful to the Attorney General for supporting me and 

to the Committee for holding this hearing and considering my nomination. And I am particularly grateful to the many members on 

both sides of the aisle who met with me prior to this hearing. I enjoyed those talks, and I thank you for them. 

I want to say a couple of words about two other people who are 

here today with me. I wish my parents could have lived to see this 

day. My father was a lawyer himself and took great pride in my 

professional accomplishments. He died about 15 years ago now, but 

he lived to see me clerk for the Supreme Court and become a professor at the University of Chicago, and he thought all of that was 

pretty great. My mother died just last summer, so her absence is 

particularly difficult for me. She grew up at a time when few 

women pursued high-powered professional careers, and maybe for 

that reason, she relished my doing so. She would have loved this 

day. Both my parents wanted me to succeed in my chosen profession. But more than that, both drilled into me the importance of 

service and character and integrity. And I pray every day that I 

live up to those standards. 

I hope one other person is looking down on this hearing room 

today. As you know, I had the privilege of clerking for Justice 

Thurgood Marshall—the greatest lawyer, I think, of the 20th century. Justice Marshall had some awfully good jobs in his life. But 

he always said that the best, bar none, was being Solicitor General. 

I am sure that there were many reasons for that, but I have been 

thinking recently about one in particular. I think he must have 

been so deeply moved to walk into the most important court in this 

country when it was deciding its most important cases and to state 

his name and to say, ‘‘I represent the United States of America.’’ 

And I think he would have liked that a former clerk of his would 

be nominated for the same job and, if confirmed, would be able to 

say those same most thrilling and most humbling words for a lawyer. 

To have the opportunity to lead the Solicitor General’s Office is 

the honor of a lifetime. As you know, this is an office with a long 

and rich tradition not only of extraordinary legal skill but also of 

extraordinary professionalism and integrity. That is due in large 

measure to the people who have led it, and I especially want to acknowledge Generals Olson and Clement and Garre for their absolutely superb service during these last 8 years. In a time of some 

difficulty for the Justice Department, they have maintained the 

highest standards of the office, and they have served their client, 

the United States of America, exceedingly well. And, of course, they 

have been joined in doing so by the career lawyers and the other 

public servants in the Solicitor General’s Office. These men and 

47 

women have been justly called the ‘‘finest law firm in the country,’’ 

and they represent the gold standard in Federal public service. 

The Solicitor General’s Office is unusual in our Government in 

owing responsibilities to all three of the coordinate branches in our 

system of separated powers. Because of this striking feature of the 

office, the Solicitor General traditionally, and rightly, has been accorded a large measure of independence. 

Most obviously, of course, the Solicitor General reports to the Attorney General and, through him, to the President, and defends the 

regulations, policies, and practices of the executive branch when 

these are challenged. In this role, the Solicitor General is the principal advocate of the executive branch in the courts of the United 

States. 

At the same time, the Solicitor General has critical, no less critical responsibilities to Congress—most notably, the vigorous defense of the statutes of this country against constitutional attack. 

Traditionally, outside of a very narrow band of cases involving the 

separation of powers, the Solicitor General has defended any Federal statute in support of which any reasonable argument can be 

made. And I pledge to continue this strong presumption that the 

Solicitor General’s Office will defend each and every statute enacted by this body. 

Finally, the Solicitor General’s Office has unique obligations to 

the Supreme Court of the United States. It is frequently said that 

the Solicitor General serves as the 10th Justice. I believe Senator 

Cardin made reference to that phrase. Now, I suspect that the Justices think of the Solicitor General more as the 37th clerk. Regardless, the Solicitor General must honor the principle of stare decisis, 

must exercise care in invoking the Court’s jurisdiction, and most 

important of all, must be scrupulously candid in every representation made to the Court. And in this sense, I completely agree with 

what Senator Specter just said: the most important of all the Solicitor General’s responsibilities is to be true to the rule of law. 

Mr. Chairman and members of the Committee, it would be an 

honor to serve as Solicitor General, and I commit that if the Senate 

sees fit to confirm me, I will do everything possible to live up to 

the great traditions, expectations, and responsibilities of the Solicitor General’s Office. 

Thank you very much. 

[The prepared statement of Ms. Kagan appears as a submission 

for the record.] 

[The Questionnaire of Ms. Kagan follows.] 

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Senator CARDIN. Thank you. We thank both of you for your opening statements. 

We are going to have 7-minute rounds, and let me start, and I 

am going to try to stick to that time limit for myself. 

Mr. Perrelli, let me start, if I might, with the tradition of the Department of Justice over many, many years of being the premier 

agency for the people of this country in protecting the rule of law, 

representing the people of this Nation, and holding anyone who 

violates our laws accountable, even if it is the President of the 

United States. 

In the last few years, there have been serious problems of partisan politics played within the Department of Justice as it relates 

to the retirement and promotion of career attorneys, as it has been 

in selecting what type of cases to be pursued, overriding the advice 

of career attorneys in many cases for partisan reasons. 

I want to get your assessment, if confirmed to be the number 

three person in the Department of Justice, as to how you will approach the appointment, retention, recruitment of career attorneys, 

their assignments, and what impact partisan politics will play in 

regards to those decisions. 

Mr. PERRELLI. Well, Senator, with respect, I think the answer to 

the last part of your question is none. You have identified an area 

where the Justice Department has come under criticism, including 

from its own Inspector General, over the last several years and 

concerns about partisanship in hiring. That is something that 

under the laws enacted by Congress is simply inappropriate, and 

I think Attorney General Mukasey and Deputy Attorney General 

Filip have taken important strides to ensuring that problems of the 

past are not current problems of the Justice Department. But I 

think it will be incumbent on the Attorney General and others, as 

they are nominated and confirmed, to take a serious look at the 

policies governing the Department, to take whatever additional 

steps are necessary to ensure that there is no partisanship in hiring or assignment of attorneys. And I would say that my experience in working with the career professionals at the Department is 

that they are an extraordinary group, and that management in the 

Department would be wise to listen to their recommendations, and 

I hope to have the opportunity to do so. 

Senator CARDIN. That is the answer I expected to hear from you, 

but let me just caution you. You are responsible for the people that 

you supervise within the Department of Justice. So we expect that 

message to be very clear to all the people in the Department of 

Justice as to restoring the confidence that partisan politics will not 

play a role in the deployment of career personnel. And I am 

pleased to hear you say that, but I just want to make sure that becomes a priority and a message that is clearly understood at all 

levels within the Department of Justice. 

The second point I want to raise is the Civil Rights Division. We 

have been extremely concerned about what has happened in the 

Civil Rights Division. In the last 8 years, the number of significant 

cases brought has been diminished greatly. The resources made 

available to that office has been reduced. I want to know what priority you intend to place on the Civil Rights Division within the 

Department of Justice. 

95 

Mr. PERRELLI. Well, Senator, the Attorney General has already 

made clear that that would be a significant priority of his, and as 

the Associate with management responsibility over, among other 

things, the Civil Rights Division, it will be a significant priority of 

mine. 

I think you identified both the set of concerns about partisanship 

that have been the subject of a recent Inspector General report 

that was quite disturbing, as well as the reality that of all of the 

civil litigating components in the Department, the Civil Rights Division is the one that has actually declined in terms of its resources, even though the number of statutes that it enforced and 

the job that it has to do is, I suspect, greater not less than it was 

in 2001. 

So I think it is a very high priority to focus on the Division to 

make certain that it is engaged in its mission. It certainly will have 

in the coming years very, very significant responsibilities following 

the 2010 census, and the management of the Department has to 

give it a special focus to make sure that it is ready. 

Senator CARDIN. Thank you. 

Dean Kagan, I very much support your statement of aggressively 

enforcing the laws of our country regardless of your personal views. 

That is your responsibility, if confirmed to be Solicitor General. I 

want to talk, though, about the potential conflict between the laws 

that Congress passes and the claim of the President to his inherent 

power. This has been an issue that has come up in regards to the 

FISA statute. It has come up in regards to detainee rights. It has 

come up in regards to the use of enhanced techniques for interrogation. 

I want to know how you will approach the issues when we are 

talking about fundamental rights and protection of the separation 

of branches of Government. Speaking as a Member of the U.S. Senate, I want to make sure the Solicitor General is going to be sensitive to the role that you can play in making sure that the appropriate protections are maintained within our Constitution. 

Ms. KAGAN. Thank you, Senator Cardin. That is an extremely 

important question. Every Solicitor General nominee who has sat 

at this table for the past many years has always said that there 

are two very rare exceptions where a Solicitor General will not defend a statute of the United States. And one exceedingly rare exception is when there is simply no reasonable basis to do so; and 

second is where that statute infringes directly on the powers of the 

President. 

And I would say the same thing to you. I think that there is a 

category of cases in which statutory defense might be inappropriate 

because it violates separation of powers concerns. But I think that 

that is an exceedingly narrow category of cases, and here in thinking about executive power, I would go back to the Youngstown 

framework that I know so many of you, all of you are familiar with. 

Of course, that framework says that when Congress authorizes 

Presidential power, Presidential power is at its highest. When Congress is silent, we are in a kind of middle ground. And where Congress says no to Presidential power, denies Presidential power, 

Presidential power is at its lowest ebb. 

96 

There are occasional times where Presidential power still exists 

even if Congress says otherwise. Think about if Congress were to 

deny any power of pardons on the President. That would be a time 

where you would say no, there is a constitutional commitment 

here. But that category of cases, Senator, I think is exceedingly 

narrow, and that is how I would approach the problem that you 

raise. 

Senator CARDIN. I thank you for that response. I would also hope 

that there would be some transparency in making those judgments 

so that there is an opportunity for input and challenge if it is a 

fundamental issue. 

With that, let me recognize Senator Specter. 

Senator SPECTER. Thank you, Mr. Chairman. 

Mr. Perrelli, I sent you a letter on the issue of congressional 

oversight and told you I would be asking you about it at the hearing today. And my question to you is whether you agree with what 

the Congressional Research concluded was the scope of congressional oversight when they say, ‘‘DOJ has been consistently obliged 

to submit to congressional oversight regardless of whether litigation is pending. Investigating committees were provided with documents respecting open or closed cases that included prosecutorial 

memoranda, FBI investigative reports * * * prepared during the 

pendency of cases.’’ 

Do you agree with the Congressional Research statement as to 

the congressional authority on oversight? 

Mr. PERRELLI. Senator, that passage that you provided, I agree 

with respect to the description of the scope of the permissible oversight by Congress that reaches all aspects on which it could legislate. I think that passage does not discuss the countervailing interests of the executive branch in certain circumstances, and the process of accommodation that goes back and forth and has historically 

between the executive branch and the—— 

Senator SPECTER. Well, would you supplement your answer by 

specifying what kind of extenuating circumstances you see to deviate from that standard? 

Mr. PERRELLI. Well, I think that certainly you have the situation 

of executive privilege and—— 

Senator SPECTER. I want you to supplement your answer in writing, because I have only got 7 minutes. 

Mr. PERRELLI. I will do so. 

Senator SPECTER. But you said you would adopt those as a generalization, but there might be some extenuating circumstance 

which would limit it. Please provide that to me in writing. 

Mr. PERRELLI. Thank you, Senator. 

Senator SPECTER. The Washington Post has an account today 

from the State Secrets Doctrine. The Obama administration invoked the State secrets privilege as its predecessor in Federal court 

in opposing the reinstatement of the lawsuit that alleges that Boeing flew people to countries where they were tortured as part of the 

CIA’s extraordinarily rendition program. I know that in your background you dealt with the State Secrets Doctrine. Do you think 

that this is a wise use of the State Secrets Doctrine, as reported 

in the Post today? 

97 

Mr. PERRELLI. Senator, I think with respect to the question about 

any particular case, I think it would require me to have more 

knowledge about particular classified information that might be at 

issue. I will say—— 

Senator SPECTER. Would you take a look at the case and the statute which Senator Kennedy and I have pending and give us your 

judgment on that? 

Mr. PERRELLI. I will, Senator. 

Senator SPECTER. There have been a large number of cases by 

the Department of Justice in taking monetary fines in the face of 

gigantic malfeasance. The malfeasance in one case, a company that 

did about $80 billion a year, and they got a $1.7 billion fine. I 

would appreciate it if you would take a look at those cases with a 

view to jail sentences for white-collar crime as opposed to fines. 

Those cases look as if the fines are really license to violate the law 

as opposed to a criminal sanction which has some real teeth. 

One more question before moving over to Dean Kagan, and that 

is, you participated in the Schiavo case, and you said that the congressional action in giving jurisdiction to the Federal court—the 

matter had been in the State court, and you were an attorney in 

the case. But you said that when Congress legislated to give jurisdiction to the Federal court, the enactment of the Federal statute 

in this case ‘‘is not an exercise of legislative power, but trial by legislature, something that exceeds Congress’ Article I power.’’ 

I believe that the law is that Congress has the authority to establish the jurisdiction. Do you stand by the assertion which you 

made in that brief? 

Mr. PERRELLI. Senator, with respect to that assertion, I think the 

argument was that Congress cannot through any vehicle overturn 

a prior final court judgment, which I think has—those arguments 

and those concerns were raised going back to the Founding Fathers. That was an issue that no court ever ruled on, so I do not 

think we know the outcome at this point. 

Senator SPECTER. Well, there is concurrent jurisdiction between 

the State courts and the Federal courts. Double jeopardy, a State 

prosecution does not bar the Federal Government from initiating a 

prosecution on the same facts. This is an exercise in congressional 

authority to establish jurisdiction. Why not? 

Mr. PERRELLI. I think the argument that we made in that case 

was that what the impact—the effect of Congress’ enactment was 

essentially to attempt to relitigate issues that had been in State 

court. 

Senator SPECTER. Well, that may be the impact, but would you 

supplement your answer with why you think Congress does not 

have the authority to determine Federal jurisdiction? 

Mr. PERRELLI. I will do that, Senator. 

Senator SPECTER. Dean Kagan, coming to the citation that I had 

mentioned earlier about how strongly you felt on the Solomon case, 

you wrote a memo for Justice Marshall in Bowen v. Kendrick, 

which involved the Adolescent Family Life Act which authorized 

Federal funds for religious organizations designed to discourage 

teen pregnancy and provide care to pregnant teens. The Supreme 

Court upheld the statute, and your memo said, ‘‘It would be difVerDate Nov 24 2008 11:53 Apr 20, 2010 Jkt 055828 PO 00000 Frm 00103 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\55828.TXT SJUD1 PsN: CMORC
98 

ficult for any religious organization to participate in such projects 

without injecting some kind of religious teaching.’’ 

Now, I asked you about the Solomon military issue where you 

had very, very strong moral objections, but you assert that you can 

function in an advocacy role notwithstanding your own personal 

views. 

How would you distinguish your confidence that you can do that 

in light of what you say here? And I understand why you say it, 

that religious organizations might be inclined to project some of 

their religious doctrine. But isn’t that an inevitable consequence 

even for a skilled advocate who feels very strongly about a matter 

with respect to the capability to clearly do the right job in advocacy? 

Ms. KAGAN. Senator, thank you for raising that memo. I first 

looked at that memo, thought about that memo, for the first time 

in 20 years, I suppose, just a couple of days ago when it was included on a blog post. And I looked at it and I thought, ‘‘That is 

the dumbest thing I have ever heard.’’ 

[Laughter.] 

Ms. KAGAN. So I looked at it and I said—— 

Senator SPECTER. You do not have to go any further. 

[Laughter.] 

Senator SPECTER. Are you telling us you will not make that same 

mistake again? 

Ms. KAGAN. You should never make the same mistake twice. 

Senator SPECTER. I wish I could follow that advice. 

[Laughter.] 

Senator SPECTER. One final question, Mr. Chairman. 

In a whole series of memos which you sent to Justice Marshall— 

and let me join you in extolling the virtues of Justice Marshall. 

There was a case called Bowles v. Fultz, and this followed a pattern 

that you had in five other memos where you express concern over 

what a majority of the Court might do as a reason for denying cert. 

And this involved an admission, and your memo said, ‘‘I think the 

admission of this statement is outrageous.’’ And then you expressed 

‘‘worry that the Court might reach the opposite result so that all 

ambiguous statements in the future will be construed in favor of 

the police.’’ You expressed similar sentiment in five cases, which 

has all the appearance of an overarching philosophy here in deciding what cases to decide. 

Isn’t it really the function to decide whether an injustice has 

been done when you say it is outrageous and not to look to a broader public policy concern as to what the Court might do as it affects 

other cases? When you have a defendant, his constitutional rights 

are involved, isn’t that defendant entitled to have a decision on the 

merits of his case without having a decision as to whether the 

court takes jurisdiction decided on some broad philosophical 

grounds? 

Ms. KAGAN. That is a very interesting question, Senator. You 

know, the Supreme Court’s jurisdiction is, of course, discretionary, 

and the Supreme Court does not take every case in which an injustice has been done, even if an injustice had been done in that case, 

which I am not sure of. I do not have any recollection of that case 

and, again, have not thought about it for 20 years. 

99 

But let me step back a little, if I may, Senator, and talk about 

my role as a clerk in Justice Marshall’s chambers. We produced an 

enormous amount of paper for Justice Marshall. He was not in 

what is called the ‘‘cert. pool,’’ so we wrote memos on literally every 

single case where there was a petition, and that is hundreds and 

hundreds, probably thousands. And I am sure that there were hundreds of criminal cases of which, again, there was a blog post about 

five of them. 

I do not want to say that there was nothing of me in these 

memos. You first asked about Bowen v. Kendrick, and I think it is 

actually fair, when you look at the memo, to think that I was stating an opinion, however wrong it may have been. But I think in 

large measure, these memos were written in a context of you are 

an assistant for a Justice; you are trying to facilitate his work and 

to enable him to advance his goals and purposes as a Justice. And 

I think most of what we wrote was in that context. You know, I 

was a 27-year-old pipsqueak, and I was working for an 80-year-old 

giant in the law and a person who, let us be frank, had very strong 

jurisprudential and legal views. He knew what he thought about 

most issues. And for better or for worse, he was not really interested in engaging with his clerks on first principles. And he was 

asking us in the context of those cert. petitions to think and to 

channel him and to think about what cases he would want the 

Court to decide. And in that context, I think all of us were right 

to say here are the case which the Court is likely to do good things 

with from your perspective, and here are the ones where they are 

not. And I think that that is what those five that you mention were 

doing. 

Senator SPECTER. Thank you, Dean Kagan. 

Thank you, Mr. Chairman. 

Senator CARDIN. Senator Feingold. 

Senator FEINGOLD. Thank you, Mr. Chairman. 

Dean Kagan, congratulations on your nomination. I was personally delighted when you were appointed, having followed your career and having really enjoyed working with you on a number of 

issues. Although women have made great strides in the legal profession in recent decades, I think the nomination of the first 

woman Solicitor General is obviously a historic moment for our 

country and for the profession. It is no small thing, and I think 

President Obama should be congratulated for making this nomination as well. 

You touched on an issue in your opening statement that I would 

like to underline. It is important. I think it answers whatever concerns some in the center and the outside might have about your 

personal views or positions you have taken in your career. So I 

would like to ask you a question that I asked Ted Olson when he 

was nominated to be Solicitor General at the time. The Senate had 

just passed the McCain-Feingold bill, and there was great debate 

about the bill’s constitutionality. 

Mr. Olson had written the following about 20 years earlier in the 

Harvard Journal of Law and Public Policy: ‘‘The laws that we disagree with, the policies that we do not like, once they are implemented in the law must be enforced by the President and the Justice Department, notwithstanding our antipathy toward them. We 

100 

in the Justice Department must also defend the constitutionality of 

congressional enactments, whether we like them or not, in almost 

all cases. We are the Government’s lawyers, so even if we disagree 

with the policies of a law and even if we feel that it is of questionable constitutionality, we must enforce it and we must defend it.’’ 

Do you agree with what Ted Olson wrote? 

Ms. KAGAN. Absolutely. There is simply no question that when 

one assumes the Solicitor General’s role, one is assuming a set of 

responsibilities, a set of obligations of which the defense of statutes 

is one of the most critically important. And you defend those statutes whether you would have voted for those statutes or not. And 

I know that Ted Olson would not have voted for the McCain-Feingold bill, but he and Paul Clement did an extraordinary job of defending that piece of legislation, which I think you will agree. And 

that is what a Solicitor General does. 

Senator FEINGOLD. I agree with that. He did do a superb job, and 

I could have sworn he almost was believing what he was saying. 

[Laughter.] 

Senator FEINGOLD. That he actually was persuaded, because he 

did a superb job. 

Ms. KAGAN. For that day he was persuaded, and that is all you 

need. 

Senator FEINGOLD. Let me ask you now about the conflict of interest restrictions on those who serve in the Solicitor General’s Office. It is somewhat ironic. As I mentioned, I was pleased with how 

the Justice Department, and Mr. Olson in particular, handled the 

responsibility to defend the McCain-Feingold bill. But since Mr. 

Olson left the Department, he has been involved in two cases challenging the statute’s constitutionality. I guess he determined that 

the Code of Professional Responsibility allows him to do that, but 

I am somewhat troubled by it. It seems like he has switched sides 

and is now representing the clients challenging the very statute 

that he defended ably as Solicitor General. 

President Obama has put in place very tough ethical restrictions 

concerning the post-Government service of people who work for his 

administration, going well beyond the revolving-door limitations 

that would otherwise apply. 

Will you please review the ethical rules and whatever guidance 

currently exists at the Solicitor General’s Office and determine 

whether more restrictive rules ought to be put in place so that you 

and the lawyers who work for you do not end up on the other side 

of issues you directly participated in while in Government service? 

Ms. KAGAN. I will, Senator Feingold. To be truthful, this is not 

a question that I have thought anything about or know anything 

about, and in my own case, when I leave the Solicitor General’s Office, I am sure I will go back to academia where I will not be arguing against—where I will not be litigating against anything that I 

have defended. But it is an interesting and important question, and 

I will look into it. 

Senator FEINGOLD. Thank you so much. 

Mr. Perrelli, I congratulate you as well. You have a truly stellar 

reputation, and I am pleased that you have agreed to return to the 

Department of Justice. I want to follow up on the state secrets doctrine issue that Senator Specter mentioned. I have been concerned 

101 

that the state secrets privilege has been invoked by the previous 

administration to avoid accountability for potentially unlawful activities. And courts, of course, tend to be very deferential to these 

privilege claims, so there is a real opportunity for abuse. 

As was mentioned, just yesterday there was a press report that 

the Department of Justice has told the U.S. Court of Appeals for 

the Ninth Circuit that it will continue to assert the state secrets 

privilege in a case brought by five men who claim to have been the 

victims of extraordinary rendition. The assertion of the privilege 

will likely cause the case to be dismissed. 

In response to press inquiries, a DOJ spokesperson said a review 

of all the cases where the state secrets privilege has been invoked 

is underway and ‘‘the Justice Department will ensure the privilege 

is not invoked to hide from the American people information about 

their Government’s action that they have a right to know. This administration will be transparent and open, consistent with our national security obligations.’’ 

So I am glad to hear that this review, which I asked Attorney 

General Holder to do, is underway. I will follow the issue very 

closely, and I am not going to ask you about the Ninth Circuit case 

here. But will you commit to me that, if you are confirmed, you will 

arrange for a classified briefing on this case so I can understand 

the decision you have made? 

Mr. PERRELLI. Senator, with respect to the particular case, I 

think I would need to consult with others at the Department about 

what information is most appropriate to be shared. I will say that 

my background and experience in this area has let me see these 

issues from all sides. As a law clerk, I worked on Iran-contra and 

the difficult issues of how you move forward in a criminal case 

where classified information is throughout the matter. 

At the Department of Justice, as the head of the Federal Programs Branch, it was my job to invoke the state secrets privilege 

working with others in the intelligence agencies in court. And so 

I spent a significant amount of time working through when it is appropriate and not to assert the state secrets privilege. 

And in the private sector, I represented a company whose claim 

of more than $1 billion was held not to be triable because of the 

state secrets privilege. 

So I have seen this from all angles, and I look forward to being 

part of that review. 

Senator FEINGOLD. But you will, if confirmed, give me an answer 

about whether I will get a classified briefing on this? 

Mr. PERRELLI. I will give you an answer if confirmed, Senator. 

Senator FEINGOLD. And I just want to confirm. One thing: I believe you indicated to Senator Specter that you would take a close 

look at the legislation that he and Senator Kennedy introduced in 

the last Congress, which was approved by this Committee, to give 

better guidance to the courts on how these claims of state secret 

privilege should be handled. Is that right? 

Mr. PERRELLI. I will, Senator, and I look forward to speaking 

with the Committee about that if I am confirmed. 

Senator FEINGOLD. There is a lot of suspicion of the Government 

out there, and this is important legislation that the Department 

should get behind. I think it is very important. 

102 

Finally, as I understand it, the Associate Attorney General is responsible primarily for Divisions of the Justice Department that 

deal with civil cases—the Civil Rights Division, the Tax Division, 

Antitrust Division, and others. But each of these Divisions has a 

criminal enforcement section which you would also supervise. What 

in your background gives you the experience and knowledge needed 

to take on these criminal responsibilities? 

Mr. PERRELLI. Senator, I appreciate the question. In my prior 

service at the Department of Justice, I served as counsel to the Attorney General with a portfolio that essentially followed that of the 

Associate Attorney General so that I had on her immediate staff 

the direct supervisory role with respect to those same civil litigating components as well as the criminal aspects of those components—hate crimes, for example, in the Civil Rights Division, environmental crimes. So my experience I think dovetails particularly 

well with those aspects of criminal jurisdiction that fall within the 

Associate’s role. 

Senator FEINGOLD. Thank you. 

Thank you, Mr. Chairman. 

Senator CARDIN. Thank you, Senator Feingold. 

Senator Coburn. 

Senator COBURN. Thank you. Welcome to you both. 

Ms. Kagan, one of the things that you said earlier was explaining 

your role in terms of all three branches of the Federal Government, 

and I just kind of have a ‘‘what if.’’ What if we have a statute that 

has been previously signed by the executive branch, passed by Congress, and we have an executive order that undermines the statute? In that case, you would have to figure out whether you support the executive order or you support the statute? How would you 

go about determining that? 

Ms. KAGAN. That is a very interesting hypothetical question, 

Senator. I will say a little bit about a process first, because the first 

thing that I would do is really to reach out to people within the 

Government—and that means both within in the administration 

but also to Congress—to try to figure out what is going on and who 

requires representation and so forth. So there would be a lot of 

work to be done to talk to people, both the people responsible for 

the EO and the people responsible for the statute. 

But I will give you just a gut instinct, which is that in a case 

like that, the defense, the obligation to defend statutes continues 

on, and the same narrow two exceptions are the only reasons in 

which you would not defend a statute: either if there is no reasonable basis in law, and it would not appear to me that an EO which 

call into question the legal basis for a statute; or if the statute impinged on a core element of executive power. And those would be 

the only two exceptions, both extremely narrow, and my guess is 

that your hypothetical would not fall within either. 

Senator COBURN. OK. Thank you very much. 

Of all I have read, the only real criticism that you have had is 

that you have not been a litigant in the past. As a physician, you 

know, I do not send patients to the professors at the university unless they are the expert in the field who have actually practiced 

rather than just taught. And I wonder how you respond to the criticism of this wonderful resume you have, but yet you have never 

103 

been a justice and you have never actually been a litigant. I have 

no doubt in hearing you that you are up to the task, but how are 

you going to handle that and how are you going to prepare yourself? 

Ms. KAGAN. I think that is a very fair and important question. 

I am very confident that I am up to this part of the job, as I am 

to all the many other parts of the job. 

Senator COBURN. I have no doubt. 

Ms. KAGAN. And I will say a little bit about why. I think when 

you get up to that podium at the Supreme Court, the question is 

much less how many times have you been there before than what 

do you bring up with you. And I think I bring up some of the right 

things. I think I bring up a lifetime of learning and study of the 

law, and particularly of the constitutional and administrative law 

issues that form the core of the Court’s docket. I think I bring up 

some of the communication skills that have made me—I am just 

going to say it—a famously excellent teacher. 

[Laughter.] 

Ms. KAGAN. I hope I bring up a set of—I hope I bring up strong 

legal analytic skills. This is for you to determine, of course, in the 

end, but I hope I bring up those kinds of skills. I hope I bring up 

excellent judgment. I hope I bring up what is maybe most important in addressing the Court, which is a kind of candid and direct 

way of speaking. So all of those things I think are important. 

And I should say, Senator, that I will by no means be the first 

Solicitor General who has not had extensive or indeed any Supreme Court argument experience. So I will just give you a few 

names: Robert Bork, Ken Starr, Charles Fried, Wade McCree. None 

of those people had appeared before the Court prior to becoming 

Solicitor General. 

Senator COBURN. And some of them, the record would show, had 

some difficulties in their presentations before the Court as well. So 

I am not accusing you of that. 

[Laughter.] 

Senator COBURN. Let me—— 

Ms. KAGAN. Now I want to know who you mean. 

Senator COBURN. Well, my staff is going to invite you to come by 

and visit with me, so we will have a great conversation on that. 

Mr. Perrelli, I have a few questions for you and, again, thank 

you, and I am here in case your wife needs me. 

Mr. PERRELLI. Thank you, Senator. I have been heard to say that 

you are the most important member of this Committee to me—at 

least today. 

[Laughter.] 

Senator COBURN. Mr. Perrelli, the Department of Justice is responsible for enforcing our Nation’s obscenity and child exploitation 

laws. The one thing that I think Attorney General Alberto 

Gonzales got right was establishing the Department’s Project Safe 

Childhood Initiative to protect children from online exploitation 

and abuse. 

Will you enforce the Child Protection Restoration and Penalties 

Enhancement Act of 1990 or will you seek to make changes the 

way the act is enforced? 

104 

Mr. PERRELLI. Senator, with respect to that act, I think that it 

is likely that the responsibility for that will not fall within the Associate Attorney General’s purview, but I can assure you that both 

in terms of enforcement of the act as well as defense of the act, in 

the event that it is challenged, which may well come under the Associate Attorney General, I would seek to enforce the law in the 

first instance and defend the law if any reasonable argument could 

be made, as I have in the past when I was the head of the Federal 

Programs Branch, which defends most of these statutes. We defended the Child Online Protection Act, for example, against constitutional challenge. 

Senator COBURN. The same would apply to the Children’s Internet Protection Act and the Child Protection and Obscenity Enforcement Act of 1988? Same answer? 

Mr. PERRELLI. To the best of my knowledge, those would be most 

likely to fall under the criminal jurisdiction for enforcement purposes, but defense of any act would likely fall under my jurisdiction. 

Senator COBURN. Do you think any of your past experience in 

terms of those that you have defended or advocated for will affect 

your ability to enforce in a right manner, what we would consider 

a right manner, those appropriate laws? 

Mr. PERRELLI. No, I do not, Senator. 

Senator COBURN. Thank you. 

Last year, I participated in legislation targeting combating child 

exploitation and enhancing the enforcement of the child exploitation law. The SAFE Act imposes enhanced criminal penalties for 

the use of the Internet to violate child pornography or sexual exploitation laws. It also expands the reporting requirements of electronic communication and remote computing services with respect 

to apparent violations of such abuse and pornography laws. 

If confirmed, will you have any problem vigorously enforcing 

such laws as the SAFE Act? 

Mr. PERRELLI. Senator, I think with respect to any enactment of 

Congress, my role will be to defend that statute if any reasonable 

argument can be made, and I would be happy certainly to work 

with the Committee on that. 

Senator COBURN. One final question. Do you personally believe 

adult obscenity contributes to the sexual exploitation of children in 

any way? 

Mr. PERRELLI. Senator, I cannot say that I have any recollection 

of looking at social science at all, but I would say that there is— 

we have to do everything we can to protect children from depictions 

that are going to be harmful to them. And I would certainly work 

with the Committee and take whatever steps are appropriate to do 

so. 

Senator COBURN. But it is not your view that that in itself, adult 

obscenity, contributes to child exploitation? 

Mr. PERRELLI. I have not looked—with respect to adult obscenity—and we are talking about unlawful materials. I think those are 

criminal and need to be prosecuted. With respect to the impact of 

them, to the extent that they are seen by children, I think it certainly would impact children. I have not looked at any—I do not 

have a view as to whether the existence of those materials viewed 

105 

only by adults and nothing more, but it obviously would concern 

me to the extent that the same adults who are viewing that material are also inclined toward viewing material related to children. 

Senator COBURN. I will be happy to send you the literature on 

adult obscenity and child predators. 

Thank you, Mr. Chairman. And I would ask unanimous consent—I am going to have to leave—to submit additional questions 

for the record. 

Senator CARDIN. Without objection. 

At this point, it might be appropriate, Senator Coburn, that I 

just put into the record the documentation we have in support of 

Mr. Perrelli from the National Center for Missing and Exploited 

Children, the Boys and Girls Clubs of America, the National Center for Victims of Crime, the Fraternal Order of Police, Federal 

Law Enforcement Officers Association, the National Association of 

Police Officers, and the Police Executive Research Forum. Without 

objection, they will be made part of the record. Thank you, Senator 

Coburn. 

Senator Klobuchar. 

Senator KLOBUCHAR. Thank you very much, Mr. Chairman. 

Congratulations to both of you. Dean Kagan, I noted that when 

Senator Reed was introducing you, he did not emphasize enough 

your University of Chicago background. As an alumni, I know it is 

not always easy to survive there, so I congratulate you on that. 

I was going to ask you—I was reading an article here—how you 

managed to get a standing ovation from the Federalist Society at 

Harvard. But after I listened to your exchange with Senator 

Coburn, I think I understand why. 

As a general matter, I think it is very important that we restore 

a belief in the law over politics to the Justice Department, and I 

think your background, not just your legal experience, but clearly 

your background in reaching out to people of different views will 

be helpful to have that kind of credibility. 

So I was just going to ask a more specific question. You have 

talked about how you respect so many of the other Solicitor Generals for their role in how they have upheld the law and argued 

for the law even when they did not personally believe it or in very 

narrow exceptions when it impinges of the President’s executive 

power. But I was wondering if there is anything about the Solicitor 

General’s role that you would change. 

In particular, one of the things I have noticed as a lawyer is the 

fact that the Solicitor General’s approval is always needed for the 

U.S. to take an appeal when the Government loses a case, but does 

not play a role in a decision when the Government wins a case. 

And I believe it has led to some inconsistency in how some of these 

appeals have been taken. So I wondered if that or some other 

issues you would consider of differentiating yourself in the role of 

a Solicitor General. 

Ms. KAGAN. Well, thank you, Senator. It is an interesting question, and I think I am going to disappoint you on it a little bit, because my basic view of the Solicitor General’s Office is, ‘‘If it ain’t 

broke, don’t fix it.’’ And I do not think that this office is at all 

broke. It has been an extraordinary office for so many years with 

106 

such dedicated civil servants, incredible lawyers, and then I think 

that the leadership has been really quite excellent. 

And I think that some of the practices that you were talking 

about have grown up because it is so important for the Solicitor 

General’s Office to maintain the credibility, to maintain credibility 

with the Court and for the Court to feel as though the Solicitor 

General’s Office really has an understanding of what its role is and 

of what it can do. 

So, for example, you said the Solicitor General only decides 

which appeals to take, and there are many, many times when people in the Government do wish to take a case up to the Supreme 

Court where some part of the Government, some agency has lost 

a case, and the Solicitor General is very often in the position of 

saying, no, we are not going to do that, we are not going to take 

that case up. That is an extremely important thing for the Court 

to protect its jurisdiction and to make sure that it is not deluged, 

and for the Court really to act as—for the Solicitor General to act 

as the—— 

Senator KLOBUCHAR. And I do not question the Solicitor General’s role with that at all. I was just wondering some of the decisions that are made not to become involved in other appeals when 

the Government wins the case. 

Ms. KAGAN. Well, you can see why when the Government wins 

the case—— 

Senator KLOBUCHAR. No, I know. But, I mean, there has just 

been—— 

Ms. KAGAN. One would want to rest there. 

[Laughter.] 

Senator KLOBUCHAR. I understand that. I just meant becoming 

involved in those cases, because we have just seen some inconsistencies over time. 

Ms. KAGAN. Yes. Well, it is very interesting, and I would love to 

talk to you about this further and to hear some examples of that. 

Senator KLOBUCHAR. OK. Thank you. 

Mr. Perrelli, I do note that your son seemed to quiet down when 

he was given a BlackBerry. Is that right? That is what Senator 

Feingold and I saw, and we were very interested in that. Just like 

the President, he cannot be without his BlackBerry? 

Mr. PERRELLI. It is sad but true. I do believe that our children 

mimic what they see from their parents. 

Senator KLOBUCHAR. All right, good. Well, I was a prosecutor for 

8 years, ran an office of about 400 people, and one of the things 

that was most troubling to me in just the last few years was what 

happened to our U.S. Attorney’S Office in Minnesota. It was a gem 

of an office under Republican and Democratic Presidents. Someone 

was put in there without the experience to run it, a political appointment, and General Mukasey actually fixed it when he got in, 

and it is now back on track. But it was really shocking to me to 

see how quickly that office deteriorated and what went on there. 

And I wanted to say how much I appreciated the decision of the 

administration to keep on some of the appointees as we wait. I 

think it would have been a bad idea to suddenly throw out these 

U.S. Attorneys in there now as we try to chart a new course. 

107 

So my question is along that line. What would you do with Attorney General Holder to improve morale in the Department? 

Mr. PERRELLI. Well, Senator, I think it is an important question, 

and the experience of having worked through the transition process 

I think demonstrated that the experience and talent of the Justice 

Department remains throughout. There are extraordinary public 

servants at every level. But there have been concerns, and obviously part of the Inspector General’s reports about politicization, 

and those have affected morale. I think it starts from the top. I 

think the Attorney General and others, including myself, if confirmed, need to both speak actively and make clear from the top 

down about what the mission of the Department is, to re-energize 

that mission, and to assure career attorneys that kind of partisanship that may be of concern to them will not occur again. 

And then I think it also is critically important to listen and hear 

from the Divisions and the U.S. Attorney’s Offices what they feel 

like has been working and what has not been working, and do our 

best to improve those. And I think it will be a—it is a lengthy process, but there is such a reservoir of experience and talent there 

that I believe that we can accomplish this. 

Senator KLOBUCHAR. One of the other things I think is so important is how the Department of Justice works with local county attorneys and local prosecutors across the country. I saw some breakdown of that, and it has always been my view that people do not 

care who prosecutes a case, whether it is the State’s attorney or the 

U.S. Attorney’s Office. Could you talk a little bit about how you 

would plan the Justice Department to reach out to local prosecutors? 

Mr. PERRELLI. Certainly, Senator, and it is a critically important 

question, because I think we all have to be pulling the oars together in order to make our communities the most safe that we 

can. And I think that rebuilding the Federal, State, local, and tribal relationships is going to be critically important going forward. 

Certainly I have had law enforcement officials express concern 

about not having been consulted about issues. 

With respect to the role of the Associate Attorney General, a primary area for the Associate is going to be in the grantmaking programs, technical assistance, and training for State and local authorities. And I hope to look forward to a robust and, frankly, daily 

dialog with State and local authorities about what is working for 

them, because my prior experience in the Government is that if you 

actually spend some time talking and working with them in individual communities, you can find the best solutions for the particular problems that they face. 

Senator KLOBUCHAR. I am out of time here, but two areas that 

I hope you will consider in the future is the white-collar crime area, 

the fraud area, and how difficult it is for local prosecutors and local 

police to take on some of these cases. And I remember there were 

always promises of all these labs from the Federal Government, 

and it is very difficult for small police departments to take these 

on. So I think it is something that I hope that you will look at in 

the future. 

Mr. PERRELLI. I will, Senator. 

Senator KLOBUCHAR. Thank you. 

108 

Senator CARDIN. Senator Kyl. 

Senator KYL. Thank you, Mr. Chairman. 

Dean Kagan, I would like to ask a favor, if you would please read 

and, then when you are finished, give me your thoughts on a law 

review article written by Rex Lee, one of the preeminent Solicitor 

Generals, served under Ronald Reagan, Ohio State Law Journal, 

1986, in which he describes from his perspective the unique and 

important role as steward of the Office of SG that the people who 

have held that position have, and I would like to get your take on 

it. I think it is a very good description of what a good SG should 

be. 

Ms. KAGAN. Senator, if I may? 

Senator KYL. Yes, surely. 

Ms. KAGAN. I was told yesterday, I suppose one of your staff said 

that you had an interest in this article, and I did read that article 

yesterday. 

Senator KYL. Oh, good. I did not want to catch you by surprise. 

Ms. KAGAN. No, it was very fair. But I just want to say that I 

completely agree with you. I think it is a very thoughtful, powerful 

article about the SG’s role. And I might have a quibble here or 

there, but I basically found myself agreeing with all the main 

points. 

Senator KYL. For those who have not, it is a bit of a template 

for how an SG approaches decisionmaking about what cases to take 

and how to proceed, among other things. I would like to discuss it 

with you further. Thank you for that. 

I do want to follow up, though, on the point that Senator Coburn 

was making about the matter of experience. I like to talk to my 

grandkids about, for example, the difference between intelligence 

and wisdom to encourage them—and from my perspective, wisdom 

is a combination of learning, knowledge, and experience, which also 

produces knowledge. And, obviously, I am encouraging them to get 

that learning and to get that experience. 

And while it is true that you, because of your stellar academic 

background, bring a great deal to the Court as a litigant, it is also 

true that there is much to be gained by the experience of participating in a lot of oral arguments before appellate courts. You learn 

by doing, and you learn how to be better than your opponent. You 

are always facing- -by and large, you are facing, usually you are 

facing an experienced litigator who has practiced before the Court 

on the other side. And there is an advocacy ability that comes not 

just from academic knowledge, but by doing it. And you learn 

through trial and error what works and what does not work. I suggest that for the position of SG, you learn what arguments can be 

effective and which ones cannot, even what cases you might want 

to take and not take relative to the possibility of winning it. 

What I am saying is that theoretical knowledge, the academic 

knowledge, while important, and good public speaking, while important, in my view are no substitute for having done litigation 

which causes you in that arena where you have got to think very 

quickly and where your past experience can guide you in how to 

proceed, that as compared to someone without the experience, 

someone with just the academic knowledge, is less suited to the position. 

109 

Now, I appreciate that you have great confidence in your abilities, but I think there—I would commend to you some degree of humility when you face some very experienced litigator who knows 

the ins and outs of the argument because he or she has done it a 

lot of times before. 

I am not going to get into your background. The Committee is 

well aware of that background and you have conceded it does not 

consist of litigation experience. But respond to—and I am really 

concerned about this. I appreciate your academic learning. But, I 

mean, I think I am a fairly smart lawyer trained in the law, but 

I do not think I would be the best candidate for a top con. law position in a top law school in the country. That is an analogy I appreciate. But speak to the concern I have, please. 

Ms. KAGAN. Well, I appreciate it. And, first, let me say I completely agree with you on the necessity of wisdom and judgment as 

opposed to just book learning. I think that this is true for many, 

many roles in life, the SG included. And I think one of the things 

I would hope to bring to the job is not just book learning, not just 

the study that I have made of constitutional and public law, but 

a kind of wisdom and judgment, a kind of understanding of how 

to separate the truly important from the spurious, or just a kind 

of situation sense, however you want to describe it. And, you know, 

I hope that you will look at some of the letters that people have 

written about me, because I think in my current job and other 

places, I hope that I have demonstrated that kind of judgment as 

opposed just to book learning. 

And I will say to you, Senator, I am in complete sympathy with 

what you said about humility, and I like to think—I like to think— 

that one of the good things about me is that I know what I do not 

know and that I figure out how to learn it when I need to learn 

it. And this was one of those things where I am going to make a 

very intensive study of what I might be missing when I come to 

the job, if you see fit to confirm me, and to talk to a lot of people 

within the SG’s Office and outside the SG’s Office, and really to try 

to figure out how to fill any gaps that there are. 

Now, when you think about a job like the SG, frankly, anybody 

has some gaps. You know, one person might not have the litigating 

experience; another person might not have the deep knowledge of 

constitutional or statutory law or so forth. But what you have to 

do is to try to figure out what you do not know. 

Senator KYL. Sure. I appreciate that. The greatest knowledgeable 

surgeon, though, still has to get those fingers working to do the 

right kind of sewing, and there is a big difference between a 55- 

minute lecture and being constantly interrupted by the Court to 

where your wonderful presentation, you know, it gets sliced down 

into about five coherent things that you are able to say. And practice is what enables you to do that. 

Let me just quickly ask you one matter, and this relates to the 

Solomon amendment that was also discussed earlier. The brief that 

you signed and that was submitted on behalf of the group of law 

schools the Court itself said represented a rather cramped interpretation of the law. It was not very kind to the interpretation in the 

brief that was submitted. 

110 

Do you think if you had been Solicitor General when Rumsfeld 

v. FAIR came to the Court, that you would have defended the statute, and that you would have interpreted it to bar universities from 

discriminating against military recruiters? 

Ms. KAGAN. I absolutely would have, Senator, and I am glad you 

asked that question because the answer is clear. The Third Circuit, 

of course, held the statute unconstitutional. That was actually not 

the ground on which we argued, but the Third Circuit held it unconstitutional. There is a clear obligation on the part of the Solicitor General to defend the statute in that circumstance unless 

there is no reasonable basis to argue for the statute. And I feel 

comfortable in this case because it is a historic case, because I 

know the case—because I know the facts, because I know the litigating posture of the case, I feel comfortable saying, of course, 

there was a reasonable basis. I mean, my gosh, the Supreme Court 

rules 9–0. 

So I absolutely would have defended that statute, and I would 

have defended it in exactly the way that Senator Feingold has 

noted Generals Olson and Clement defended the McCain-Feingold 

law. 

Senator KYL. Again, thank you. And I would appreciate the 

chance just to visit privately for a little bit. 

Senator CARDIN. Senator Kyl, thank you for your inquiry. 

Let me just, if I might, put into the record—I think it is appropriate at this point—the letter of endorsement that received from 

the Solicitor Generals from 1985 to 2009 in support of Dean Kagan. 

The letter states that, ‘‘Dean Kagan will bring distinction to the office, continue its highest traditions, be a forceful advocate for the 

United States before the Supreme Court. Elena Kagan would bring 

to the position of Solicitor General a breadth of experience and a 

history of great accomplishment in the law. We believe that she 

will excel at the important job of melding the views of various 

agencies and departments into a coherent position that advances 

the best interests of the National Government. She will be a strong 

voice for the United States before the Supreme Court. Her brilliant 

intellect will be respected by the Justices, and her directness, candor, and frank analysis will make her an especially effective advocate.’’ 

That is from the former Solicitor Generals from 1985 to 2009. 

Senator Feinstein 

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

welcome to both of you and congratulations, and certainly, Ms. 

Kagan, as the first woman, it is a very special event, so double congratulations. 

You mentioned in response to a prior question that if the Solicitor General’s Office is not broke, your view is do not fix it. But I 

would like to give you one instance where I believe it was, and that 

was in the case of Massachusetts v. the EPA, where California and 

11 States and a group of nonprofits sued the EPA for failing to regulate greenhouse gas emissions that cause global warming. The Solicitor General opposed the suit. He argued that the States could 

not sue because they could not prove that the EPA’s decision affected them in any meaningful way. 

111 

The Supreme Court disagreed. It found that the emissions could 

cause sea level and water storage changes that would directly affect the States and their citizens. So this was one instance where 

I think a very bad decision was made. 

Do you believe it was wrong? And how would you decide these 

issues of standing? 

Ms. KAGAN. Well, Senator, you ask a question that I do think 

goes to the role of the Solicitor General’s Office, because in that 

case the Solicitor General’s Office was representing the position of 

the agencies involved. And if it was right or if it was wrong was 

more a matter of whether the agency had decided the right thing. 

But I think the Solicitor General’s role, just as the Solicitor General defends statutes to the best of her ability, the Solicitor General 

has to defend executive actions to the best of her ability as well. 

So if there is a regulation or if there is a policy or practice that 

the executive branch has set forward or that any particular agency 

in it has set forward, the usual thing for the Solicitor General to 

do is to vigorously defend that policy or practice in Court. And 

without knowing all the ins and outs of the communications between the Solicitor General and the EPA in that case, I suspect 

that that is the decision that the Solicitor General made. 

Senator FEINSTEIN. Yes, well, of course, there are many of us— 

I happen to be one—that believe that the EPA was very politicized 

in the past administration, and this is just one example. But essentially what you are saying is whatever the agencies want, the agencies would get in terms of a determination of standing. Is that correct? 

Ms. KAGAN. You know, I think that the presumption is—just like 

the presumption is that the Solicitor General’s Office defends statutes, the presumption is that the Solicitor General’s Office will defend agency actions and agency decisions to the best of its ability. 

Senator FEINSTEIN. OK. Let me switch topics and ask: Are you 

both familiar with a bill that we spent a great deal of time on in 

the last session, and that is the Foreign Intelligence Surveillance 

Act? 

Mr. PERRELLI. Senator, I am generally familiar with it. 

Senator FEINSTEIN. How about you, Ms. Kagan? 

Ms. KAGAN. Same. 

Senator FEINSTEIN. Well, you mentioned the Jackson formula 

from Youngstown, and as you know, with the Terrorist Surveillance 

Program, the President sought to go outside the law and did, in 

fact, go outside the law. And that program now is totally under the 

Foreign Intelligence Surveillance Court. However, during this period of time, we were reviewing the Foreign Intelligence Surveillance Act, and we strengthened dramatically, I believe, the exclusivity sections of that act. 

When President Carter signed the act following the Church Commission’s revelations, he essentially called it the ‘‘exclusive tool of 

governance of the collection of foreign intelligence.’’ Well, the Article II authority of the President was used essentially to go around 

this. We then strengthened it additionally in this latest amended 

act, which is now law. 

Have you had an opportunity to review that? And do you believe 

that the exclusivity provisions are such that they are compelling 

112 

and, therefore, the President cannot go around this law and illegally then collect foreign intelligence? 

Mr. PERRELLI. Senator, I have not looked at the exclusivity provisions for that precise purpose. Echoing Dean Kagan speaking before, certainly in a circumstance where Congress has spoken directly on a subject, whatever the authority President has is at its 

lowest ebb. So I think that statement by Congress will be an extremely powerful statement in terms of what the authority of the 

executive branch is. 

Senator FEINSTEIN. Ms. Kagan. 

Ms. KAGAN. I cannot say anything more than that. 

Senator FEINSTEIN. OK. Have either of you had an opportunity 

to review the Geneva Conventions? 

Ms. KAGAN. Again, generally, Senator. 

Senator FEINSTEIN. With respect to the laws of war, which essentially cover the detention of an enemy combatant for the duration 

of a conflict? 

Mr. PERRELLI. Senator, I have had occasion to review that in the 

context of reviewing the Supreme Court’s decisions in that area to 

date. 

Senator FEINSTEIN. Well, let me ask you this question then: Do 

you believe they are sufficient to detain an individual who is found 

to be an enemy combatant until the end of the conflict? 

Mr. PERRELLI. Senator, I think I would want to consult further 

with experts in the field. The description from your question 

sounds similar to, at least in part, the Supreme Court’s decision in 

the Hamdi case. But I am not certain of all the potential exceptions 

or nuances to that. But certainly that was in part what a majority 

of the Court held in that case. That is the best of my recollection. 

Senator FEINSTEIN. The reason I raise this is because I think it 

is going to be a fundamental question as we consider the end planning for detainees as Guantanamo is closed, because the question 

arises: What do you do with people who might not be able to be 

tried but are adjudged, through a proper due process panel, to be 

a danger to the national security of this country and/or enemy combatants? Can they continue to be held without trial? 

It is my understanding that the laws of war do permit this. Now, 

this is an asymmetric war, and it is apt to go on for a substantial 

period of time. But I was just curious whether you had a view on 

that. Clearly, you do not. 

Mr. PERRELLI. Well, Senator, I think, as I indicated, my understanding is that that is indeed what the Hamdi case held, and certainly I think the President has made clear that, in considering the 

outcome of the Guantanamo review, keeping the country safe is his 

first priority. 

Senator FEINSTEIN. Thank you. 

Thank you, Mr. Chairman. 

Senator CARDIN. Thank you. 

Senator Graham. 

Senator GRAHAM. To pick up where Senator Feinstein left off— 

which is an excellent question, and this country needs to discuss 

this openly and, quite frankly, somewhat behind closed doors. But, 

Dean Kagan, do you agree with me that under normal criminal law 

113 

there is no process to hold someone indefinitely without trial under 

domestic criminal law? 

Ms. KAGAN. Under normal criminal law? Yes, I do agree with 

you. 

Senator GRAHAM. And if you had a criminal statute that would 

allow someone to be held forever without trial, that would no 

longer be criminal law, it would be something else. 

Ms. KAGAN. That seems right, Senator. 

Senator GRAHAM. OK. Now, if one is at war—let me ask this: Do 

you believe we are at war? 

Ms. KAGAN. I do, Senator. 

Senator GRAHAM. OK. Let me read from Mr. Holder here. Would 

you consider him your boss? 

Ms. KAGAN. In a manner of speaking, Senator. I guess he can fire 

me, so that makes him my boss. 

Senator GRAHAM. That would make him your boss. But he seems 

to be—I think he would be a good boss. 

Ms. KAGAN. I think so, too. 

Senator GRAHAM. And I think you would be very qualified for 

your job. I asked him, ‘‘Do you think we are at war?’’ And he says, 

‘‘I don’t think there’s any question but that we’re at war. I think 

to be honest, I think our Nation didn’t realize that we’re at war 

when, in fact, we were. When I look back at the 1990’s and Tanzania, the embassy bombings, the bombings of the Cole, I think we 

as a Nation should have realized that at that point we were at war. 

We should not have waited until September 11, 2001, to make that 

determination.’’ 

Do you agree with that? 

Ms. KAGAN. It is easy to agree with my boss in that circumstance. 

Senator GRAHAM. OK. I asked him where the battlefield might 

be. If we are at war, I asked him, ‘‘Where would the battlefield be?’’ 

And he gave what I thought was a—I said, ‘‘If you are trying to 

explain to a civics class, a 9th grade civics class about the battlefield in this war, what would it be?’’ And he said, ‘‘The battlefield— 

there are physical battlefields, certainly, in Afghanistan, but there 

are battlefields, potentially, you know, in our Nation. There are 

cyber battlefields that we’re going to have to—where we’re going to 

have to engage. But there’s also—and this sounds a little trite but 

I think it’s real—there’s a battlefield, if you want to call it that, 

with regard to the hearts and minds of the people in the Islamic 

world. We have to do things in a way, conduct ourselves in a way, 

that we win that battle as well, so that people there who might 

otherwise be well intentioned do not end up on the wrong side and 

against us.’’ 

Do you agree with that? Well, I certainly do, too. And I told him 

I felt what he was speaking of was the moral high ground. There 

is a physical high ground in traditional war, but in this war there 

is the moral high ground, and we have to maintain that moral high 

ground. I think at times we have lost it. But we also have to remember we are at war. 

Now, I asked him this question: ‘‘Now, when you talk about the 

physical battlefield, if our intelligence agencies should capture 

someone in the Philippines that is suspected of financing al Qaeda 

114 

worldwide, would you consider that person part of the battlefield, 

even though we’re in the Philippines, if they were involved in al 

Qaeda activity?’’ Holder said, the Attorney General said, ‘‘Yes, I 

would.’’ 

Do you agree with that? 

Ms. KAGAN. I do. 

Senator GRAHAM. So that gets us back to Senator Feinstein’s 

question. Under law of armed conflict, as I understand it, and 

under the Geneva Convention, Article 5 says that if there is a dispute about status, what you are entitled to is an independent, neutral decisionmaker. And in most wars, that can be a battlefield determination by a single officer. But because this is a war without 

end, that will not end with a ceremony in the USS Missouri, there 

will be no defined end, I am all for giving more due process. 

But the point she is making, I think is an important point. You 

cannot detain someone indefinitely under criminal law. They have 

to have a trial. But under military law, if you are part of the 

enemy force, there is no requirement to let them go and go back 

to the war and kill your own troops. Do you agree that makes 

sense? 

Ms. KAGAN. I think it makes sense, and I think you are correct 

that that is the law. 

Senator GRAHAM. So America needs to get ready for this proposition that some people are going to be detained as enemy combatants, not criminals, and there will be a process to determine whether or not they should be let go based on the view that we are at 

war, and it would be foolish to release somebody from captivity 

that is a committed warrior to our Nation’s destruction. 

Now, the point we have to make with the world, would you 

agree, Dean Kagan, is that the determination that led to the fact 

that you are an enemy combatant has to be transparent? 

Ms. KAGAN. It does indeed. 

Senator GRAHAM. It has to have substantial due process. 

Ms. KAGAN. It does indeed. 

Senator GRAHAM. And it should have an independent judiciary 

involved in making that decision beyond the executive branch. Do 

you agree with that? 

Ms. KAGAN. Absolutely. 

Senator GRAHAM. So we can go tell the world that this person is 

being held off the battlefield not because one person says so, but 

because there is a process that led to that determination where you 

had an independent judiciary involved. Do you think that is important for the Nation to make sure we have that kind of process? 

Ms. KAGAN. I do, Senator. 

Senator GRAHAM. I will look forward to working with you and 

this new administration on how to come up with a process that will 

make that statement, to let the world know that no one is being 

arbitrarily held based on just suspicion or emotion but based on 

evidence and a legal process. And some of these people are going 

to be held maybe for the rest of their life, but it will be based on 

our values, not theirs. And my message to those who are on the 

fence: Don’t join al Qaeda. Not only does it corrupt your own life 

and your own religion—if you happen to be a Muslim—you can 

wind up getting killed or dying in jail. 

115 

Now, Mr. Perrelli, one of the things that I have been working on 

in the past administration, with not a whole lot of success, is trying 

to protect our intellectual property. I come from a manufacturing 

State. There are some people on this Committee who come from 

manufacturing States, and one of the edges that America has is the 

ability to innovate, but that innovation is routinely stolen in places 

like China and Russia and other places. 

Do you believe we have sufficient laws on the book to protect intellectual property in the global economy from regimes like China 

and other places in the world that are less than respectful? And if 

not, what could we do better? 

Mr. PERRELLI. Well, I think, Senator, simply by identifying the 

problem, whatever mechanisms and laws we have in place currently do not seem to be addressing the problem because, as you 

indicate, there are significant concerns and problems in a number 

of foreign countries with respect to the theft of intellectual property. 

I think through the transition process, I heard from members of 

both chambers about the need to ensure that there is an intellectual property task force that is focused on these issues, or at least 

appoint people who are focused on this. I know that this Committee 

was one of the sources of the bill that created a broader intellectual 

property position throughout the administration, and we hopefully 

will be able to focus on these issues. 

Senator GRAHAM. Well, thank you both. I think you are excellent 

choices and you will do a good job for the country, and I look forward to supporting you. 

Ms. KAGAN. Thank you, Senator. 

Mr. PERRELLI. Thank you, Senator. 

Senator CARDIN. Thank you. 

Senator Whitehouse. 

Senator WHITEHOUSE. Thank you. 

Just to follow up on Senator Graham’s question, we passed legislation very recently that would set up an intellectual property czar 

in the White House that would empower the Department to put together task forces on this. And, obviously, implementation is yet to 

be accomplished, but we very much hope that that will be a priority for you, because I could not agree more with Senator Graham’s concern about that. 

I want to first recognize and appreciate Solicitor General Fried 

is here, who has done such great service to Harvard, the Commonwealth of Massachusetts, and the country. And I am delighted to 

see the former OLC chief Jack Goldsmith also here, who shared 

such an important window into a truly extraordinary moment in 

the Department of Justice’s history. 

My question for both of you has to do with the Department itself 

as an institution. It has probably had its bleakest period. You will 

be the first new administration to inherit that and try to rebuild 

it. I understand from your prepared testimony that you understand 

that and are well positioned for that. 

And, Mr. Perrelli, you talked about your father’s long and distinguished work for the Department of Justice and described your 

‘‘reverence’’—was the word you used—for the Department. 

116 

Dean Kagan, you talked about your clerkship for Justice Marshall and his pride in having served as Solicitor General and what 

you called the thrilling and humbling words, ‘‘I represent the 

United States of America.’’ 

I think those pieces of testimony put you in exactly the right 

place, but I want to hear each of your assurances that in all of your 

tasks, your first priority will be to defend the Department of Justice as an institution upon which Americans can rely for competence, for honesty, and for integrity. 

Mr. PERRELLI. I certainly can make that assurance, Senator. 

Ms. KAGAN. Senator, I can as well, and one of the glories of the 

Solicitor General’s Office is that even in some very difficult times 

for the Justice Department, it has maintained its professionalism 

and its integrity and its refusal to be politicized. 

Senator WHITEHOUSE. It has distinguished itself in that regard. 

We have heard disturbing testimony about the disassembly of 

traditional civil service safeguards that for a long time have protected the Department and its career staff from political influence. 

We have heard of applicants being asked, as a measure of their 

qualification, why they want to serve George Bush. We have had 

them asked about the political background. We have had people 

who had associations that were deemed consistent with democratic 

or progressive or liberal views knocked out of consideration for career positions. And the danger of all of that is that as a result people whose first priority is to a party and to an ideology have been 

allowed to infiltrate the Department and they will not—did not intend to and now will not follow the traditions of independence, 

competence, and integrity that the Department has long stood for. 

But they are in now. And although in many respects they do not 

deserve it because they did not come in through a civil service 

proper process, they now enjoy the benefits of that civil service 

process. 

Now, some people who came in I am sure are as qualified as anybody else and as excited about being in the Department as anybody 

else and as keen to do the right thing as anybody else, just the way 

that I think pretty much everybody who comes to the Department 

of Justice for the first time has that feeling. But to the extent that 

there are people who have essentially infiltrated themselves to be 

moles for a particular party or advocates for a political ideology, 

what mechanisms do you have in place to protect the Department 

and people who count on their judgment in particular cases to be 

protected against that? 

Mr. PERRELLI. Well, Senator, I think it is an important question, 

and I think there is no question on a forward-looking basis that we 

have to do everything possible to ensure that never again are partisan criteria used in the selection of career attorneys or staff in 

any way, and that includes promotion decisions as well as decisions 

about hiring. And I think that, you know, having served in the Department, you understand the tremendous—the incredible power of 

standing up and saying you represent the United States and the 

extraordinarily high standards to which we need to measure attorneys at the Department of Justice. 

My view is that we need to make sure that everyone who is 

working at the Department is one with the mission, and that to the 

117 

extent that there are those whose first priority may be to something other than the mission of t he Department of Justice, we will 

learn about that because their performance will demonstrate to us 

that they are working on something else or are focused on something else rather than the needs and interests of the United States. 

Senator WHITEHOUSE. So you are completely confident that the 

existing performance evaluation and review process of the Department is adequate to the task of defending it against people who 

may have infiltrated it for partisan purposes? 

Mr. PERRELLI. I cannot say that I am completely confident. It is 

something I would want to look at, if I am confirmed, with the Attorney General and others. But I think my view is that, going forward, we need to evaluate people based on their performance, and 

their performance with respect to the mission of the Department, 

because in the past, to the extent that other criteria have crept in, 

that is why we have a problem. 

Senator WHITEHOUSE. Well, I certainly hope that that is the 

case, and I am prepared to accept that it may be the case. But I 

am not convinced yet, and from my point of view, I just want to 

register that as a remaining open question. But I am delighted that 

you both are candidates for these offices. I look forward to working 

with you, and I appreciate very much that you have taken this step 

to serve in these positions. The hassle and the criticism and the 

hours and the pay are all somewhat different than what you have 

experienced at different times in your pasts, but there is nothing 

quite like the responsibility and the honor. So I wish you well. 

Ms. KAGAN. Thank you, Senator. 

Mr. PERRELLI. Thank you, Senator. 

Senator CARDIN. Senator Hatch. 

Senator HATCH. Well, thank you, Mr. Chairman. I welcome both 

of you to the Committee. I have great respect for both of you, and 

I appreciate the fact that you are willing to give your time to public 

service. It means a lot to me. 

You both have excellent academic credentials. Dean, you have 

done a terrific job up there at Harvard. 

Ms. KAGAN. Thank you. 

Senator HATCH. No question about it. And I think it is evidence 

by the number of professors who are here today, a number of whom 

I consider close friends and who have weighed in in your favor 

from time to time with me. And I really appreciate you are both 

excellent lawyers, you are both excellent scholars. 

Let me just raise a case with you, Dean Kagan, that I raised 

with David Ogden last week, and that is the child pornography 

case titled Knox v. United States. Now, this is important not only 

because protecting children is one of the highest matters of importance, but because of the attempt to weaken enforcement of the 

child pornography statute. That was first made by the Solicitor 

General in his brief to the Supreme Court awhile back. Suddenly, 

the Solicitor General asked that a different definition of child pornography be used and the conviction in that case be reconsidered. 

You said in your opening statement that the Solicitor General 

must defend ‘‘any Federal statute in whose support any reasonable 

argument can be made.’’ In my opinion, the Solicitor General at 

that time failed in this duty in the Knox case where something as 

118 

important at the protection of children was involved. And that is 

what the new Solicitor General in the last incoming Democratic administration did. 

Now, I do not want a Solicitor General who will use that office 

to change the law through the courts. Neither the Solicitor General 

nor the courts make the law. Congress does. And I know you write 

in the area of First Amendment law and about legislative efforts 

to restrict obscenity and pornography. 

Now, do you have any comment on the Knox case? And how will 

you keep that sort of thing from happening on your watch? 

Ms. KAGAN. Senator, I do not know the case, and I am not sure 

I understand which Solicitor General did what when. 

Senator HATCH. Well, it was the first Solicitor General in President Clinton’s tenure. 

Ms. KAGAN. I see. But then it was defended later? 

Senator HATCH. Yes, it was—well, actually, it turned out, I 

think, all right in the end. But that was the argument. 

Ms. KAGAN. Well, either way, Senator, I would have no difficulty 

in this area whatsoever. I mean, I would have no difficulty in any 

area defending a statute. And I cannot imagine why one would 

have any in this area. 

Senator HATCH. Well, in your review of Professor Stephen 

Carter’s book on the confirmation process, you wrote that the Senate should ask judicial nominees about their views on constitutional issues, the direction they would take the Court, and even 

about votes that they would cast. Now, I would like—— 

Ms. KAGAN. The—— 

Senator HATCH. Even about votes they would cast. How do you 

square this with the principle that judges must be impartial and 

with the oath they take to provide justice without respect to persons? 

Ms. KAGAN. It is a great question, Senator, and I am not sure 

that sitting here today I would agree with that statement. I wrote 

that piece—after I had worked on this Committee, I had the privilege—— 

Senator HATCH. If you want to know the truth, I remember when 

Judge Bork was here. He had written some outlandish things from 

time to time, but he was absolutely brilliant. And he did it more 

as an academic, as a teacher, and some on this Committee held 

that against him very badly. But the fact of the matter is that I 

think it is good for teachers to raise all kinds of issues on all sides 

of cases. 

Ms. KAGAN. Right, right. 

Senator HATCH. And you are good at that. 

Ms. KAGAN. Well, thank you, Senator. I was just going to say, 

you know, I wrote that when I was in the position of sitting where 

the staff is now sitting and feeling a little bit frustrated that I really was not understanding completely what the judicial nominee in 

front of me meant and what she thought. But I think that you are 

exactly right, of course, that there are other—that this has to be 

a balance. The Senate has to get the information that it needs, but 

as well, the nominee for any particular position, whether it is judicial or otherwise, has to be protective of certain kinds of interests. 

And you named the countervailing ones. 

119 

Senator HATCH. Let me just say that I may not agree that 

Thurgood Marshall was the greatest attorney of the last century, 

but I agree with you he is one of the greatest. And I have nothing 

but respect for what he did for the civil rights community and the 

courage that he had in doing that. And so I think I would just commend you for having had the privilege of working with him and 

others on the Supreme Court who were giants at that time when 

you were there. I think you have had some tremendous experiences 

in your life, and, naturally, I respect that. 

Now, Mr. Perrelli, I do not want to ignore you. 

[Laughter.] 

Senator HATCH. If you are confirmed to be Associate Attorney 

General, you will oversee the Justice Department’s Civil Rights Division. In the last several years, the Division has launched some 

important initiatives which reflect a more comprehensive vision of 

civil rights, and I want to know if you intend to continue these programs and priorities. Let me give you an illustration. 

One of these is the protection of religious liberty. Now, I take a 

tremendous interest in that. Naturally, as a member of the Church 

of Jesus Christ of Latter Day Saints, the only church against whom 

an extermination order was issued by a Governor of a State, I naturally have a great deal of concern, and not just for my faith but 

for people of all faiths. You know, it is the first liberty mentioned 

in the First Amendment to the Constitution. 

Now, the Division right now has a Special Counsel for Religious 

Discrimination to handle these cases. It has also developed a strong 

program for enforcing the Religious Land Use and Institutionalized 

Persons Act, which I introduced and which was passed unanimously by the Senate and the House. I think it is a very important 

bill. 

Now, what priority will the Civil Rights Division under your 

leadership give to the protection of religious liberty? Will you maintain the position of Special Counsel? And I would like your views 

on how this will fit into your approach to civil rights? 

Mr. PERRELLI. Well, Senator, it is an important question, and I 

agree with you that we need to continue the efforts of the Civil 

Rights Division in protecting religious freedom. As I indicated previously, one of my concerns is that the number of statutes that the 

Civil Rights Division is enforcing has only increased while its staffing has actually been declining over time. 

With respect to the particular position that you reference, I think 

I would want to talk to the incoming Assistant Attorney General 

for Civil Rights at such time when he or she is nominated and confirmed about the right approach here. But I agree fundamentally 

that work on the RLUIPA, which I worked on when I was at the 

Department of Justice in the drafting phases, in cooperation with 

this Committee, is an extremely important statute, and we need to 

continue significant enforcement efforts with respect to it. 

Senator HATCH. Well, thank you. I want to express my regard for 

both of you, and I have really enjoyed listening to your comments 

here today. I think you both are very, very top-flight people with 

top-flight abilities. And I appreciate your willingness to serve here 

in Washington. It is not as much fun as Harvard, I have got to tell 

you. In fact, it gets pretty miserable at times. 

120 

[Laughter.] 

Senator HATCH. But I am glad to have you here and glad that 

you are willing to serve. 

Ms. KAGAN. Thank you, Senator. 

Mr. PERRELLI. Thank you, Senator. 

Senator CARDIN. Thank you, Senator Hatch. 

Senator Wyden. 

Senator WYDEN. Thank you, Mr. Chairman. I want to welcome 

both of our witnesses as well. I know we have votes, and both Senator Kaufman and I are going to try and get our 5 minutes in, and 

we will try and do it quickly. 

Mr. Perrelli, let me start with you on the white-collar crime 

issue. I think we all understand that hundreds of billions of dollars 

is going out to the financial sector at this time, and we have seen 

this enormous spree of rip-offs, investment schemes, and frauds 

and the like. You have looked at what your predecessors in the 

Bush administration have done in the financial fraud area. What 

will you do specifically to change the Bush policy and beef up the 

fight against white-collar crime? 

Mr. PERRELLI. Well, Senator, I appreciate the question, and I 

agree that, particularly in the current phase of the economy that 

we are in, we need to be extraordinarily vigilant both on the civil 

and criminal side in enforcing the law against those who would defraud consumers as well as defraud the Government. 

As the Associate Attorney General, most of the jurisdiction of the 

components that I would supervise, if confirmed, is focused on the 

civil side, civil enforcement. But there is criminal jurisdiction, for 

example, over scammers that come out of the FTC, and those are 

enforced by the Civil Rights Division. 

Through the transition process, I think we talked a lot about the 

need for enhanced FBI—additional FBI agents to focus on whitecollar crime, because over the last several years the FBI has really 

had to transform itself into a national security agency. We have 

also talked about the need for additional U.S. Attorneys and working with Assistant United States Attorneys in the field, figuring 

out whether a centralized task force or a more dispersed approach 

is appropriate. 

But I certainly think that we will need to focus on fraud both 

against consumers, mortgage fraud, and fraud against the Government, particularly with large sums of money flowing to the private 

sector. Those are going to need to be extraordinarily important priorities for—— 

Senator WYDEN. You have told me that you would look at putting 

more agents on it and more U.S. Attorneys. I want to hold the 

record open on this point because I want to know specifically what 

you would do to beef up the fight against white-collar crime relative to what was done in the Bush administration. You can get 

back to us quickly on that? 

Mr. PERRELLI. I can, Senator. 

Senator WYDEN. Very good. Second point for you, you represented the Recording Industry Association, and there was an aggressive there to pursue individuals who share music files. Now, 

clearly, the Department of Justice has got to set some priorities, 

and given the need to set priorities, do you believe that GovernVerDate Nov 24 2008 11:53 Apr 20, 2010 Jkt 055828 PO 00000 Frm 00126 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\55828.TXT SJUD1 PsN: CMORC
121 

ment prosecutors ought to devote time to pursuing individuals accused of these illegal downloads if we are talking about, say, a 

small number of music files? 

Mr. PERRELLI. Senator, with respect to the enforcement of the 

criminal copyright laws, that again would likely fall within the 

Criminal Division, so it would not necessarily fall under the purview of the Associate Attorney General. 

I would say that, to date, I think the career prosecutors of the 

Criminal Division have never yet concluded that it was an appropriate use of their resources to pursue such action. 

Senator WYDEN. And you would support that? 

Mr. PERRELLI. I have no reason to disagree with it, Senator. 

Senator WYDEN. OK. One question for you, Ms. Kagan, and I 

share Senator Hatch’s views about your qualifications, and we are 

looking forward to your confirmation. I want to ask you about the 

unusual case of Ali al-Marri, the legal resident of the United States 

who has been held at the military brig in Charleston for the past 

several years. He is currently the only U.S. person being held in 

prison in the United States on the grounds that he was declared 

an enemy combatant. And I want to go at this issue in a careful 

way because it is certainly, you know, a possibility that you may 

have to argue the case. 

So let us kind of set aside that, and what I would like is just a 

little bit of your thinking without it just being 35,000 feet about 

the kind of legal principles and the legal analysis that you might 

bring to cases like this without getting you into the area that you 

might 1 day have to argue. 

So do not be so general that you just take me to 35,000 feet and 

I do not get a sense of your thinking, and at the same time, I want 

to be respectful of the fact that you may one day be arguing. I am 

just trying to get a sense of how you think about these kinds of 

cases. 

Ms. KAGAN. Senator, I appreciate the question, but I have this 

urge actually to stay up at 50,000 feet. 

Senator WYDEN. I got the drift. 

Ms. KAGAN. For the reasons that you say. You know, the President has authorized a review of this case and all the various ways 

of dealing with it, and that review is ongoing. I do not know really 

anything because, you know, I am only a nominee and I have no 

sense of how it is proceeding or how this might get to the Court, 

whether it would get to the Court, if it got to the Court what the 

arguments would be. I just feel as though I do not want to step into 

that area. This is, you know, very much an ongoing case, and also 

an ongoing exploration in the Justice Department of how to deal 

with it. 

Senator WYDEN. Well, tell me then about the balance, the constitutional balance as you would think about it. What our country 

has always been about is protecting the public good—in this case, 

fighting terrorism ferociously—and at the same time, being sensitive to individual liberty. Talk to me about how you approach the 

balance. 

Ms. KAGAN. Fighting terrorism ferociously and also fighting terrorism within the rule of law. And those are the two things that 

you have to make sure happen at one and the same time. 

122 

Senator WYDEN. Thank you, Mr. Chairman. 

Senator CARDIN. Senator Kaufman? 

Senator KAUFMAN. Thank you, Mr. Chairman. 

Dean Kagan, Mr. Perrelli, I am really pleased that you are taking on these new assignments, and although, Dean Kagan, what I 

find is that when we were working for Chairman Biden, we got to 

question a lot earlier. And, frankly, most of the questions that I 

had have already been asked, and I do not see any reason to repeat 

them. 

I especially want to associate myself with Senator Whitehouse’s 

remarks about the Justice Department and what has happened in 

recent years—not to look back. I agree with President Obama. We 

should be looking forward. But, clearly, there are some things that 

went on there that are disturbing in terms of keeping career people 

and in terms of the kind of people that are presently there and in 

terms of recruiting people. I think you are going to have some excellent recruits for the Justice Department, and it is a challenge 

you have to meet. And, Dean Kagan, I am glad to hear that you 

feel that the Solicitor General’s Office is in good shape in this regard. 

I want to just thank you for—we have a vote coming up. I just 

want to thank you for serving. I think you are, as Senator Whitehouse said, going to have an incredible experience in the Justice 

Department. I think that what we are going to be doing in the Justice Department, as Senator Wyden said, are extremely difficult 

questions. No one wants to make these questions any simpler, and 

I think, Dean Kagan, that the question he asked you and the fact 

that the Justice Department is looking into this and trying to determine is really one of the key things. 

So I want to thank you very much for coming here today. Thank 

you for serving. I think you are excellent selections, and I wish you 

all good luck. 

Thank you, Mr. Chairman. 

Senator CARDIN. Thank you, Senator Kaufman. 

Let me just echo what Senator Kaufman has just said and thank 

both of you for being willing to serve our country. These are very 

important positions, and as Senator Whitehouse said, it is going to 

be long days. Your family are going to make continued sacrifices, 

and we thank them for being willing to share your talent with our 

country. 

The hearing record will remain open for one week in order for 

members to submit questions in writing. I would urge you all to 

please respond to those questions as quickly as possible so that we 

can complete the process that we need to go through to make a recommendation to the floor in regards to confirmation. 

Chairman Leahy apologizes for not personally being here today. 

Other business kept him away from the Committee. Without objection, his statement will be made part of the record, and once again, 

I thank you all for your courtesies today. 

With that, the Committee will stand adjourned. 

[Whereupon, at 12:05 p.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

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Æ 


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