Three prominent Republicans who served in the Justice Department during the George W. Bush administration testified Thursday on the nomination of Solicitor General Elena Kagan to the Supreme Court. But only one former government lawyer spoke out against the nominee.
Former Office of Legal Counsel Assistant Attorney General Jack Goldsmith and ex-Solicitor General Gregory Garre lauded the nominee, noting her good character and experience as Harvard Law School dean and Solicitor General. Former OLC Principal Deputy Assistant Attorney General Ed Whelan, however, said Kagan would be a liberal judicial activist and does not deserve confirmation.
The peculiarity of Republican support for a Democratic nominee was not lost on Goldsmith, who was hired by Kagan in 2004 to teach at Harvard Law School.
“It is a little awkward for me to talk about this because I am actually held up as a conservative scholar who was hired while serving in the Bush administration,” said Goldsmith, who served as Assistant Attorney General from 2003 to 2004. “I’m held up as the example of how open-minded she was. It makes it a little awkward for me to talk about this, but I do think that her actions as dean — not just in connection with me, but much more broadly — do demonstrate a commitment to a frank and open exchange of ideas and reveal a temperament ideally suited for the Supreme Court.”
The former OLC chief said he first met Kagan in 1994 when he was trying to become a professor at the University of Chicago Law School, where the nominee was teaching at the time. He spoke with her about a paper he was presenting to the faculty and she inundated him with an “avalanche” of questions.
“It was a truly remarkable performance,” Goldsmith said. “I’d been in the teaching market for many months, but I had not encountered Kagan’s razor sharp questions — questions that exposed weaknesses and inconsistencies in my thesis.”
Read Goldsmith’s full written testimony here.
Garre, who served as Solicitor General from 2008 to 2009, said Kagan has “served the government well” during her more than a year of service as Solicitor General. The former Solicitor General said Kagan has earned the “confidence, trust and admiration” of career lawyers in the Solicitor General’s office.
He also said Kagan’s lack of judicial experience should not detract from the nominee’s qualifications for a seat on the Supreme Court.
“Service as a Solicitor General is by no means a necessary or itself sufficient qualification to sit on the Supreme Court,” said Garre, now a partner at Latham & Watkins LLP. “But the Office of the Solicitor General offers a valuable training ground for service on the court.”
Read Garre’s full written testimony here.
Whelan, who served in the OLC from 2001 to 2004, veered away from his former Bush administration colleagues, expressing concern about how Kagan would vote on the Supreme Court. He said the nominee would not upset the line of “activist” Supreme Court decisions since the 1960s on the death penalty, abortion and gay rights that have “degraded American politics, institutions and culture.”
“Elena Kagan is a predictable vote — quite possibly the decisive fifth vote in favor of inventing a federal constitutional right to same sex marriage,” said Whelan, president of Ethics and Public Policy Center, a Judeo-Christian morality think tank.
Sen. Jon Kyl (R-Ariz.) complimented Whelan on his written testimony, which expanded on his remarks before the Senate Judiciary Committee.
“I found it up to your usual incisive and impactful standard,” Kyl said. “I only regret that none of my Democratic colleagues — except Sen. [Ted] Kaufman [of Delaware] — are here to be instructed in the error of their ways.”