The Senate Judiciary Committee endorsed Supreme Court nominee Elena Kagan at its meeting Tuesday.
The panel voted, 13-6, to report her nomination out of committee. Sen. Lindsey Graham of South Carolina was the only Republican to vote in favor of the nominee.
Kagan had received some support from panel Republicans when she was a nominee for Solicitor General last year. Republican Sens. Tom Coburn of Oklahoma, Jon Kyl of Arizona, Orrin Hatch of Utah and then-Republican Sen. Arlen Specter of Pennsylvania voted for Kagan’s confirmation for Solicitor General last year.
Though Graham did not vote on the confirmation of Kagan for Solicitor General, he said the nominee’s liberal-leaning philosophy would not bar him from supporting her nomination to the Supreme Court.
“I’m going to vote for her, and that doesn’t mean I’m pro-choice—I’m very pro-life,” Graham said. “I’m going to vote for her because I believe the last election has consequences.”
He added: “[Kagan] would not have been someone I would have chosen, but the person who did choose, President [Barack] Obama, chose wisely.”
In his most striking departure from his GOP colleagues, Graham defended Kagan’s stance on military recruitment as dean of Harvard Law School. Republicans criticized Kagan on her decision to bar military recruiters from the law school career placement office.
“Lawyers challenge the law; she challenged the law. Schools and organizations make political statements all the time in this country,” Graham said. “In my view, Harvard’s position on denying full access to military recruiters in the law school said more about Harvard than it did about the military.”
Sen. Jeff Sessions of Alabama, the ranking committee Republican, said Kagan fed the committee “political spin” during her confirmation hearings. He refuted Kagan’s claims that she was in compliance with the Solomon Amendment — a law that allows the government to withhold federal grants from colleges that restrict or prevent military recruitment.
“This is not a coronation but a confirmation,” Sessions said. “She choose to spin the facts in a way that was, at best, misleading, and at the worst, dishonest.”
Panel Chairman Patrick Leahy (D-Vt.) and his Democratic colleagues applauded Kagan’s testimony before the committee last month. Leahy said she had a “an impressive knowledge of the law” and would uphold it.
“She spoke of judicial restraint, respect for our democratic institutions and commitment to the Constitution and the rule of law,” Leahy said. “She made clear that she’ll base her approach to deciding cases on the law and the Constitution, not politics or an ideological agenda.”
But some Democrats expressed frustration with her sometimes evasive answers last month. Some of them said she was not living up to comments she made in 1995 criticizing senators for failing to “engage [Supreme Court] nominees in meaningful discussion of legal issues.”
Sen. Herb Kohl (D-Wis.) said she gave “opaque and limited answers” to questions posed by panel members.
“The substance of her answers was so general at times that it was really difficult to distinguish her answers from those of any other nominee,” Kohl said.
Sen. Russ Feingold (D-Wis.) said he doesn’t blame Kagan for the type of answers she provided during her testimony.
“I can’t say she quite lived up to that high standard she set for nominees in 1995,” Feingold said. “But I believe that she tried to answer our questions as openly and comprehensively as she could, given what the confirmation process has become.”
Several Republicans, including Sessions, also criticized the nominee for her decision as Solicitor General not to appeal the government’s case in Witt v. Department of Defense — a case challenging the military’s Don’t Ask, Don’t Tell policy that bars openly gay individuals from military service.
“The Witt decision placed the Don’t Ask, Don’t Tell law — a law that she has stated repeatedly she personally abhors — in serious jeopardy and has made it unworkable,” Sessions said.
The committee initially scheduled a vote for Kagan on July 13. But her nomination was held over at the request of panel Republicans. Committee members can request to hold over a nominee one time.
The full Senate is expected to vote on her nomination before it recesses next month.
This post has been updated from an earlier version.
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The Senate Judiciary Committee postponed votes on the nominations of Elena Kagan for the Supreme Court and James Cole for Deputy Attorney General Tuesday in response to Republican requests to consider the nominees next week.
Sen. Jeff Sessions of Alabama, the ranking Republican on the committee, said the GOP members of the panel needed more time to review the nominations. Panel members can ask to postpone consideration of nominees until the committee’s next meeting.
The Alabama senator said his Republican colleagues have lingering questions about the backgrounds of the nominees.
Sessions said he has concerns about Cole’s time as an independent consultant for insurance giant AIG. The ranking Republican also said he was worried about Kagan’s lack of judicial experience and her decision to bar military recruiters from the Harvard Law School career placement office when she was dean.
Panel Chairman Patrick Leahy (D-Vt.) implored the Republicans not to further delay consideration of the nominees. He noted that several senators have already announced whether they will support Kagan.
“I suspect that every single member of this committee knows how he or she will vote,” Leahy said.
Sessions said panel Republicans are cooperating with their Democratic colleagues to move the Supreme Court nominee through committee as quickly as possible. He said the committee might complete its work on Kagan quicker than when the panel considered then-Supreme Court nominee Sonia Sotomayor last summer.
“I think we are moving this nomination in a very expeditious manner,” Sessions said.
The panel is slated to meet again next Tuesday.
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The Senate Judiciary Committee is slated to consider the nomination of Solicitor General Elena Kagan to the Supreme Court when the Senate returns from its week-long Fourth of July recess.
The panel set the vote for its July 13 meeting. But Republicans could request to have consideration of the nomination delayed until the committee’s next meeting.
The nomination hearing for Kagan concluded on Thursday.
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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.”
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Senate Judiciary Committee members on Wednesday tried to get an in-depth look inside the Solicitor General’s office and a better understanding of Supreme Court nominee Elena Kagan during her third and final day before the panel. But Kagan’s remarks left some senators unsatisfied.
Senators pressed Kagan during a seven-hour back-and-forth to discuss matters connected to her office and disclose internal deliberations among her colleagues, including discussions about two cases that had political implications.
Sen. Jon Kyl (R-Ariz.) asked the nominee to say whether her office spoke with the White House about the U.S. Chamber of Commerce v. Candelaria or Lopez-Rodriguez v. Holder cases. The Solicitor General’s office urged the Supreme Court to take up the U.S. Chamber of Commerce case, which questions the legality of an Arizona law that would penalize employers who knowingly hire illegal immigrants. But her office advised the court not to consider the Lopez-Rodriguez case decided by the U.S. Court of Appeals for the 9th Circuit, which ruled that information given to immigration officials without a warrant or invitation could not be used in a civil immigration hearing.
Kagan said her office made the “correct decision on the law” on the two cases. But she declined to say whether her office and the White House discussed the cases.
“The Solicitor General’s office does from time to time – and I think this is true in every administration – have some communications with members of the White House with respect to particular cases,” Kagan said. “That is not a surprising thing and I think is true in every administration. But I don’t think it would be right to talk about internal deliberations in any particular case.”
Kyl was unsatisfied with Kagan’s answer.
While Kyl said he wouldn’t be shocked if the White House had a political interest in the cases, he said he would be surprised if the Solicitor General’s office made its decisions based on the “political advice or efforts” of the White House.
“I think that there wouldn’t be anything wrong with the committee understanding whether or not your decision was based on considerations other than purely legal especially if it came in the form of requests by the White House or people within the White House because of the rather political nature of these two cases,” Kyl said.
The nominee also declined to tell a testy Sen. Arlen Specter (D-Pa.) whether she would vote to hear several cases that may come before the court because she is still a party in the cases as Solicitor General. She added that she didn’t “want to count [her] chickens before” confirmation.
“You are counting your chickens right now,” Specter said. “I am one of your chickens. Potentially.”
But Sen. Jeff Sessions of Alabama, the ranking panel Republican, tried to make the most of Kagan’s refusal to speak openly on issues that may involve her office by bringing up a Republican cause de célèbre.
The senator invoked Miguel Estrada, who befriended Kagan while they attended Harvard Law School and was President George W. Bush’s nominee for a seat on the U.S. Court of Appeals for the D.C. Circuit. Estrada’s nomination was filibustered by Democrats who wanted internal memos he authored during his time in the Solicitor General’s office under President George H.W. Bush.
Every living Solicitor General – including Kagan — supported the George W. Bush administration’s refusal to turn over the memos. Kagan, who said she supported Estrada’s nomination, said they understand “how important confidentiality within the office is to effective decision making.”
“I do think the Office of Solicitor General is a very special kind of office where candor and internal, really truly thorough deliberation is the norm and that it would very much inhibit that kind of appropriate deliberation about legal questions if internal documents had the potential to be made public generally in that way,” Kagan said.
The hearing on Kagan will continue tomorrow afternoon with testimony from witnesses chosen by the senators to speak about issues related to the nominee. Former Solicitor General Gregory Garre, now of Latham & Watkins LLP, is scheduled to testify as is former Assistant Attorney General for the Office of Legal Counsel Jack Goldsmith, who Kagan hired as a professor at Harvard Law School during her tenure as dean. Ethics and Public Policy Center President Ed Whelan, a former OLC official in the George W. Bush administration, will also testify.
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Wednesday - 11:27 a.m.
Kagan received a lesson in congressional intent and judicial activism from Sen. Al Franken (D-Minn.) — the last speaker in her first round of questioning.
With conspicuous disappointment with the court’s rulings on mandatory arbitration in labor disputes, Franken drilled into an opinion by Justice Kennedy stating: “we need not assess the legislative history” — a remark Franken cited as disregard for congressional intent.
Kagan affirmed that she would use legislative history as a source to assess congressional intent if confirmed.
“Where the text is clear, a court should go with the text,” said Kagan. “Where the text is ambiguous, which often happens … the court surely would be helped if Congress spoke as precisely, as exactly and as comprehensively as it could.”
Franken then zeroed in on Citizens United, calling it an example of judicial activism and saying its unduly broad scope made it “unfair to the American people.”
“[Corporations] can spend billions,” he said. “They are going to spend it when we try to protect oil drilling in deep water … or Wall Street fraud. They’re going to spend their money against the consumer — the laws that protect our families and our homes.”
Franken further criticized the Supreme Court justices for extending the Citizens United decision beyond the more narrow question originally presented to the court.
In response, Kagan agreed that cases should be decided in the narrowest possible way.
“This leads to a kind of restrained decision making in which consensus can more easily be achieved and the most appropriate outcomes can be reached,” Kagan said.
Wednesday - 11:08 a.m.
Kagan said the Supreme Court didn’t give her an easy time when she argued cases before it as Solicitor General.
The nominee said in response to a question from Sen. Ted Kaufman (D-Del.) that everyone is equal before the court.
“One of things that I found remarkable in my time as Solicitor General as I walk into that court and I represent the government … people might think that the government is kind of favored in the court,” Kagan said. “Anything but.”
She also defended her time in the executive branch, invoking Justice Robert Jackson, who held various Justice Department posts from 1936 to 1941 including Solicitor General and Attorney General.
The nominee said the justice was “one of [her] favorite figures in Supreme Court history.” - AR
Wednesday - 10:38 a.m.
Amy Klobuchar (D-Minn.) seemed to subtly respond to Republican criticism of Kagan’s judicial experience by asking the nominee to speak on how her time as Solicitor General informed her judgment.
“You go up there, and you get to the podium, and there are nine people — every single one of them is so prepared to talk about the case, so into the case, so engaged, obviously so smart, and I think, trying to get it right,” Kagan said. “They know your briefs…what they want to hear you do is respond their questions. It’s only if you address the justices’ real concerns that you’re going to win your case.”
“We’ll consider those tips for those that go before you,” Klobuchar remarked.
Klobuchar also questioned Kagan on the practical consequences of Supreme Court decisions, alluding to the criticism in the senator’s opening statement of the Melendez-Diaz decisions, which forced forensic analysts to testify personally before the court in all cases. Kagan submitted an amicus brief as Solicitor General supporting looser regulations for testimony in a similar case.
“I was concerned about the decision just because, again, the practicality of all this new work for prosecutors,” Klobuchar said.
Kagan responded by suggesting the person most responsible for this evidentiary trend was Justice Antonin Scalia and said she would approach decisions with an eye for the “real-world, practical effect of a legal rule.” - CT
Wednesday - 10:04 a.m.
Sen. Sheldon Whitehouse (D-R.I.) kicked off the morning questions, starting a third day of hearings for Supreme Court nominee Kagan.
Kagan said taking precedent into consideration when making decisions on the Supreme Court is important.
Whitehouse expressed frustration with the Citizens United decision, saying precedent wasn’t followed by the conservative court. Kagan said there are “competing views” on whether the court can reverse precedent under some circumstances.
“I do believe … that [undoing precedent] should be regarded with some caution,” Kagan said.
The Rhode Island senator also tried to get Kagan to elaborate on her remarks yesterday about Leegin Creative Leather Products v. PSKS, a 2007 Supreme Court decision that held that manufacturers could set price floors below which retailers cannot sell their products.
The nominee said yesterday that laws that protect consumers and ensure competition among businesses must be upheld, adding that “economic theory and economic understanding” must also be taken into account.
But today she declined to give a more thorough analysis of antitrust issues surrounding the case saying, “I’m not an antitrust expert.” - AR
The hearing will continue Wednesday morning with questions from Democratic Sens. Sheldon Whitehouse of Rhode Island, Amy Klobuchar of Minnesota, Ted Kaufman of Delaware and Al Franken of Minnesota.
Kagan said she would give deference to Congress if she is confirmed to the Supreme Court.
Sen. Benjamin Cardin (D-Md.) said it is important for the court to give deference to Congress when it rules on civil rights and voting rights laws. He expressed frustration that justices did not give deference to Congress in rulings like the Citizens United decision, which he called a “step backwards.”
The Maryland senator also noted the importance of interpreting how the intent of the framers of the Constitution would apply to the present time. The nominee said the Constitution’s basic principles are relevant “throughout the ages.”
“I think that the Constitution is a kind of genius document,” Kagan said.
Cardin said he thinks Kagan will “follow in the best traditions of the Supreme Court.” - AR
Sen. Tom Coburn (R-Okla.) took a confrontational tone with Kagan, at one time holding up placard with excerpt from a letter written by the nominee to Specter regarding the use of foreign law as a guide for court decisions.
The placard read: “ ‘There are some circumstances in which it may be proper for judges to consider foreign law sources in ruling on constitutional questions’ such as the Eighth Amendment.”
“Here’s your quote — exactly,” said Coburn, holding up the sign. “Please explain to me why it’s OK sometimes to use foreign law to interpret our Constitution, our statute and our treaties.”
“For the most part, I wouldn’t try to convince you of that because I don’t think it is appropriate as precedent or as an independent bases for support in the vast majority of legal questions,” Kagan said.
Coburn then criticized the Supreme Court for abdicating its duty to prevent Congress from overstepping its authority under the Commerce Clause, which governs interstate trade and commerce with other countries.
“You can’t solve the problem now, but you helped create it,” said Coburn, referring to the court. - CT
Kagan said efforts to eliminate the disparity between crack and powder cocaine sentences should be left to Congress.
Sen. Richard Durbin (D-Ill.) said the 100-to-1 sentencing ratio for crack and powder cocaine offenses is a “significant cause” of what Justice Anthony Kennedy told the Democratic senator was a “badly broken” incarceration system.
The Senate passed a version that would establish a new 18-to-1 sentencing ratio. But the House has its own legislation that would eliminate the current decades-old sentencing law and hasn’t acted on the Senate’s bill.
The nominee worked on Clinton administration efforts to reduce the ratio. But she said the court is not the place to press for changes in sentencing policies.
“I think justices on the Supreme Court are appropriately interested in these kinds of questions,” Kagan said. She added: “But it is a kind of interest that I think has to be advanced in conversations like the kind he had with you.” - AR
What began as a quiz on the constitutional amendment process administered by Sen. John Cornyn (R-Texas) turned into an exhortation for Kagan to honor precedent in cases of Second Amendment rights and Citizens Untied if confirmed.
Cornyn took pains to extract from Kagan an affirmation that the Constitution’s meaning could only be changed through the Article V amendment process. Kagan, however, tenaciously insisted that the way in which justices apply the text of the Constitution can alter its meaning as applied to new facts and circumstances.
“It’s the genius of the Constitution that not everything was set forth in specific terms, bus instead certain provisions were phrased in a very general way,” Kagan said. “The Constitution does not change … but it does apply to new facts and new circumstances all the time, and in that process … development of our constitutional law indeed does occur”
However, Kagan said she did not view the document as a “living Constitution.”
“I don’t particularly think that the term is apt, and I don’t like what people associate with it,” she said. “I think the job of constitutional interpretation … [is] a highly constrained role.”
Cornyn built off this statement to address the issue of preserving precedent in cases like Heller — which established an individual right to possess firearms — and the Citizens United decision. He explicitly referenced the statements of Justice Sonia Sotomayor during the hearing on her confirmation last year and suggested her testimony contradicted the dissention opinion she authored in McDonald v. Chicago, a decision reached earlier this week on the constitutionality of state gun-control statutes.
“If the doctrine of precedent enabled you to overturn a decision you thought was wrong, it wouldn’t be much of a doctrine,” Kagan said.
Kagan said freedom of speech is not absolute in response to a question from Sen. Charles Schumer (D-N.Y.) about Supreme Court rulings on cases like the Citizens United decision.
Schumer said it was “confounding and deeply troubling” that the court used the first amendment to invalidate limitations on corporate funding of broadcasts for political campaigns. The nominee argued against the decision as Solicitor General.
“If you yell fire in a crowded theater or you yell into a … cardiac victim’s ear, nobody’s going to [say it is protected speech],” Kagan said.
The New York senator also asked Kagan to clarify what laws and resources she would use to make decisions on the court.
The nominee said the Constitution would be her primary tool on the court. But she said international laws and other resources could be used in making some decisions.
“Judges should keep their minds open to a variety of sources,” Kagan said. - AR
4:38 p.m. “Like all Jews, I was probably at a Chinese restaurant.”
Kagan’s back-and-forth with Sen. Lindsey Graham (R-S.C.) took on a more congenial tone but failed to mask the penetrating nature of the questions the senator launched at the Supreme Court nominee.
Graham zeroed in on the controversial issue of detainees in the war on terror, urging Kagan — as he did in her earlier confirmation for Solicitor General before the committee — to speak on the policies she defended as Solicitor General.
“The problem with this war is that there will never be a definable end to hostilities, will there?” Graham asked, referring to the policy that allows the government to hold enemy combatants in wartime until hostilities cease.
“That is exactly the problem,” said Kagan. “That is a question that I believe has not been answered.”
Kagan said that, should Congress and the president work together to find a workable policy, she would give it a greater deference as a Supreme Court justice.
Quoting Attorney General Eric Holder, Graham said the battlefield of the war is “the hearts, the minds and wherever al-Qaeda may reside,” questioning whether Kagan would agree with Holder’s policy in combating terrorism.
“I still agree with the Attorney General,” Kagan responded.
Graham then cited the attempted bombing on Christmas day last year, asking the nominee, “Where were you at on Christmas day?”
“Like all Jews, I was probably at a Chinese restaurant,” Kagan retorted.
She went on to say she had never dealt with the question of criminalizing enemy combatants or the operation of military commissions in her time as Solicitor General, but also said that she supported the Obama administration’s approach and defers to the Attorney General on the issue. - CT
4:13 p.m. Specter and cameras in the courtroom
A testy Sen. Arlen Specter (D-Pa.) prodded Kagan to disclose how she would rule if confirmed to the Supreme Court.
Specter, who cut off Kagan on many of her answers, pushed the nominee to speak about how she would view the Citizens United case if she was a judge. The nominee said she could only speak to the position she took as Solicitor General.
“It is a little bit difficult to take off the advocate’s hat and put on the judge’s hat,” Kagan said.
The senator expressed frustration with the confirmation process for Supreme Court nominees and their answers to senators’ questions.
He said if Supreme Court proceedings were televised that might change. Kagan said she is in favor of televising arguments.
“I think if the public understood what was happening there would be this strong temptation to stand behind what was said at these confirmation hearings,” Specter said.
Kagan said televised Supreme Court arguments would mean that she would “have to get [her] hair done more often.”
“A little humor would do a lot of good,” Specter said. - AR
3:38 p.m. Grassley and Second Amendment rights
Sen. Chuck Grassley (R-Iowa) used his time to press Kagan on her views regarding the Second Amendment and delve into the nominee’s more obscure writings to discuss her judicial philosophy.
He quoted the nominee as writing that she was “not sympathetic” to those critical of a handgun ban in Washington, D.C. and probed Kagan on the 2008 Heller decision establishing the right for individuals to possess private firearms. Grassley even tried to tack down whether she felt the Second Amendment’s guarantee of the right to bear arms is an inherent or constitutionally provided right.
“If we are endowed by our government with certain rights, the government can take those away from us,” he said. “Whereas if we possess them ourselves and give them up from time to time to the government to exercise in our stead, the government cannot take away something that is inherently ours.”
Kagan responded by affirming that she will abide by the court’s precedents.
“I have absolutely no reason to think that the court’s analysis was incorrect in any way,” Kagan said. “I accept the court’s analysis and will apply by it going forward.”
Grassley also brought up her time in Oxford where she wrote a thesis paper suggesting judges could at times defer to the public’s “demands of social justice.”
“All I can say about that paper is that it’s dangerous to write papers about the law before you’ve spent a day in law school,” Kagan said. “I would ask you to recognize that I didn’t know a whole lot of law then.”
“If I accept your answer, it would spoil a whole five minutes ahead,” joked Grassley. “You’ve learned a lot by going to law school.” - CT
The committee has recessed for lunch and votes. They will resume later this afternoon.
1:29 p.m. Feingold presses on campaign finance
Kagan said the Citizens United decision was an “unusual action” in response to questions from Sen. Russ Feingold (D-Wis.)
Feingold was the co-author of the 2002 campaign finance legislation that was partially overruled in the Citizens United case. Feingold and other Democratic senators have expressed frustration with the Supreme Court ruling, which invalidated limitations on corporate funding of broadcasts for political campaigns. Kagan as Solicitor General represented the government in support of the law during oral arguments last year.
“It’s obviously unusual whenever the court reverses a precedent,” Kagan said.
The Wisconsin senator also asked the nominee to discuss her views on the role of the court.
Kagan said the court has a “very important role in policing the constitutional boundaries.”
“There are some times when the court does have to step in and police those boundaries and make sure the president doesn’t usurp the authority of Congress or vice versa,” Kagan said.
She added: “No person however grand, however powerful is above the law.” - AR
1:06 p.m. Kyl questions Kagan on immigration
Sen. Jon Kyl (R-Ariz.) questioned Kagan on her suggestion as Solicitor General that the Supreme Court hear an Arizona case regarding the hiring of undocumented immigrants.
According to Kyl, Kagan’s counsel proved pivotal in the court’s decision to grant certiorari and hear the case.
“My guess is … that without the [Solicitor General] taking the position that you did, that it’s much less likely the court would have taken that case,” Kyl said.
Kagan clarified her interest in the case as one pertaining to the legal issue of federal preemption and denied any bias regarding the case’s greater context in immigration regulation.
“The reason for the court to take this case was not only that it was wrong — that the Arizona statute was statutorily preempted — but also … for the Supreme Court to set down its view on what the federal statute preempts,” Kagan said. “This is a significant issue … as to whether the [federal] statute prevents a state from doing this.”
The case, Chamber of Commerce of the United States v. Candelaria, involved an Arizona statute that required businesses to compare the Social Security numbers of employees with a national database to confirm their immigration status. Corporations found to have knowingly hired illegal workers could then have their state licensing revoked.
Kyl said the issue would come up again in his second round of questioning.
Following up on concerns he expressed in his opening statement, Kyl also questioned Kagan about her former boss and legal hero, Thurgood Marshall. He focused on bench memos the nominee had written during her tenure as Marshall’s clerk — which he characterized as “not just pragmatic, but almost political.”
In response, Kagan said clerks tended to “channel Justice Marshall,” attempting to anticipate what kind cases the justice would accept. The memos did not fully reflect her views, she said. - CT
12:25 p.m. Feinstein asks about terrorism and detention of suspects
Sen. Dianne Feinstein (D-Calif.) probed the Solicitor General on her views on executive power.
Kagan said the Solicitor General’s office is working under the assumption that the executive branch is operating with authority from Congress.
“For the most part, the presumption is that if the president is told by Congress that he can’t do something, [he] can’t do something,” Kagan said.
Feinstein also asked the nominee to elaborate on the president’s ability to detain terrorism suspects. Kagan said she has worked on the issue in the Solicitor General’s office, which supports the authority.
The nominee said the Supreme Court will likely take up cases about terrorism, including definitions questions about the boundaries of the battlefield and the definition of an “enemy belligerent.” - AR
11:46 a.m. Hatch presses Kagan on how she presented the case during oral arguments for Citizens United
Sen. Orrin Hatch (R-Utah) probed Kagan’s tenure as Solicitor General for her views regarding the Supreme Court’s recently decided cases, clamping down on the corporate political speech at issue in Citizens United.
In response, Kagan said she held her views as a Solicitor General separate from her personal beliefs or the beliefs she might espouse as a judge.
“I want to make a clear distinction between my views as an advocate and any views I might have as a judge,” Kagan said. “When I stepped up to the podium, as an advocate, I thought that the U.S. government should prevail in that case.”
However, Hatch held firm to the court’s extension of First Amendment protection to corporate political speech. He cited Kagan’s counsel as saying the Federal Election Commission’s application of the restrictive statute could extend to many types of organizations and forms of speech, including political pamphleteering — a hallmark of the American election process, Hatch said.
“I’m not really blaming you for your argument, nor am I blaming the person whose job is to defend this statute. I’m just saying what happened,” he said.
Hatch asked the nominee whether her decisions as a justice would hinge on a “jurisprudence of minutiae” that drew arcane delineations between where and whom the First Amendment protects.
“I’m getting a little tired of people mis-stating what Citizens United is all about,” he said. “In Citizens United, the court listed at least 25 precedents dating back almost 75 years … specifically that protect corporate political speech.”
Hatch said he believed the case was correctly decided and suggested that the arguments Kagan made contradicted the core value of the First Amendment.
Kagan, however, refused to give an objective evaluation of the case, stating that her role as a Solicitor General had dictated her entire approach.
“When I prepare an argument, the first person I convince is myself,” she said. “I did believe that we had a strong case to make. I tried to make it to the best of my ability … in the Solicitor General Office, we defend statutes that Congress determines. - CT
11:09 a.m. Kohl questions Kagan on Leegin
Kagan deflected questions from Sen. Herb Kohl (D-Wis.) on how she would make decisions on the Supreme Court.
“All I can say … is that I will try to decide each case that comes before me as fairly and objectively as [possible],” Kagan said.
Kohl, who chairs Senate Judiciary Committee antitrust subcommittee, also asked Kagan about her views on business competition. The Democratic senator said consumers have had fewer choices recently after Supreme Court decisions like Leegin Creative Leather Products v. PSKS, a 2007 Supreme Court decision that held that manufacturers could set price floors below which retailers cannot sell their products.
The nominee said laws that protect consumers and ensure competition among businesses must be upheld. But she said “economic theory and economic understanding” must also be taken into account. - AR
10:37 a.m. Sessions and Harvard’s policy on military recruiting
Ranking Republican Jeff Sessions of Alabama took an aggressive stance, highlighting what will likely be a constant line of attack from GOP members: Kagan’s role in military recruiting policy as dean of Harvard Law School.
Sessions launched a into series of questions that accentuated Kagan’s part in dictating military recruitment policy as the dean of Harvard Law School. He said that by prohibiting recruiters from joining Harvard’s Office of Career Services she had violated the Solomon amendment — a law requiring schools to offer equal treatment to military recruitment on their campuses as other career recruiters.
Kagan defended her policy by saying the military had always had “excellent access” to students through the school’s veteran’s organization.
“In fact, the veteran’s organization did a fabulous job of letting all our students know that the military recruiters were going to be at Harvard during that recruiting season,” she said. “And military recruiting went up that year, not down.”
Sessions, however, remained unconvinced.
“I’m a little take aback by the tone of your remarks because its unconnected with reality,” Sessions said. “In fact, you were punishing the military.”
Sessions also highlighted the importance of unbiased legal interpretation before pressing on Kagan’s policy work for the Clinton and Obama administrations — saying he “would have to classify [Kagan] as someone in the theme of a legal progressive.”
Kagan responded by dismissing the hard-and-fast labels politicos place on judges and lawyers.
“People should be allowed to label themselves,” Kagan said. “I am not quite sure how I would characterize my politics, but one thing that I do know is that my politics would be, must be, have to be separate from my judgment.” - CT
9:58 a.m. Leahy questions on Harvard military recruiting
Kagan clarified her decision to bar military recruiters from using the career placement office at Harvard Law School, responding to questions from Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.).
Kagan, who was Harvard Law School dean from 2003 to 2009, barred the recruiters because the military’s ban on openly gay soldiers violated the school’s anti-discrimination policies. But Harvard agreed to allow military recruiters to recruit students via a student group — the Harvard Law School Veterans Association.
“I am confident that the military had access to our students and our students had access to the military throughout my entire deanship.”
The nominee, who is the Solicitor General, also said she would recuse herself from any case before the Supreme Court where she was counsel of record, signed a brief on the case or where she officially approved an action on the case. She said there will be about 10 Supreme Court cases that she may have to recuse herself from next year. - AR
The second day of the confirmation hearings for Supreme Court nominee Elena Kagan have just gotten underway. Today, senators get to question the nominee for 30 minutes each.
The order of Senators will be as follows: Patrick Leahy (D-Vt.); Jeff Sessions (R-Ala.); Herb Kohl (D-Wis.); Orrin Hatch (R-Utah); Dianne Feinstein (D-Calif.); Charles Grassley (R-Iowa); Russ Feingold (D-Wis.); Jon Kyl (R-Ariz.); Arlen Specter (D-Pa.); Lindsay Graham (R-S.C.); Charles Schumer (D-N.Y.); John Cornyn (R-Texas); Richard Durbin (D-Ill.); Tom Coburn (R-Okla.); Benjamin Cardin (D-Md.); Sheldon Whitehouse (D-R.I.); Amy Klobuchar (D-Minn.); Ted Kaufman (D-Del.); Al Franken (D-Minn.)
First up, Leahy.
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Elena Kagan said at her Supreme Court nomination hearing Monday that her tenure as Solicitor General has given her the experience she needs to be the court’s next justice.
Kagan, who has served as the government’s chief lawyer since March 2009, has argued six cases before the nation’s highest court. She said after her Supreme Court arguments she was left “with a renewed appreciation of the commitment of each justice to reason and principle.”
“In no other place I know is the strength of a person’s position so tested and the quality of a person’s analysis so deeply probed,” Kagan told members of the Senate Judiciary Committee. “No matter who the lawyer or who the party, the court relentlessly hones in on the merits of every claim and its support in law and precedent.”
Republicans criticized the nominee for her lack of judicial experience. Kagan, a former Harvard Law School dean, has held a number of academic, White House, congressional and private sector jobs, but has never been a judge.
Jeff Sessions of Alabama, the ranking panel Republican, said the nominee “has less real legal experience of any nominee in at least fifty years.”
“She has barely practiced law, and not with the intensity and duration from which real understanding occurs,” Sessions said.
Democrats defended Kagan, saying her background doesn’t undermine her legal acumen.
Benjamin Cardin (D-Md.) said Kagan’s role as Solicitor General has shown her ability as a “unquestioned legal scholar, a proven leader and a dedicated public servant.”
“I know that having served as Solicitor General — a position often referred to as the 10th justice — you are well prepared for the day-to-day responsibilities of the court,” Cardin said.
Republicans complained that Kagan’s judicial philosophy is difficult to ascertain without a judge’s records and opinions to review. GOP senators also took aim at her tenure as a clerk to liberal Supreme Court Justice Thurgood Marshall, whose portrait hangs in her Justice Department office.
“Justice Marshall’s judicial philosophy … was not what I would consider mainstream,” said Jon Kyl (R-Ariz.) “As he once explained: ‘You do what you think is right and let the law catch up.’ He might be the epitome of a results-oriented judge.”
Richard Durbin (D-Ill.) lauded Marshall, saying the United States is a “better nation” because of the first black justice.
“You deserve to be judged on your own merits, not on the basis of strength and weakness or philosophy of any judge for whom you clerked,” Durbin said.
The nominee pledged to bridge ideological differences and keep an open mind in her decisions if confirmed to the Supreme Court.
“I will listen hard, to every party before the court and to each of my colleagues,” Kagan said. “I will work hard. And I will do my best to consider every case impartially, modestly, with commitment to principle, and in accordance with law.”
Kagan’s hearing will continue tomorrow morning with questions from the senators.
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Sen. Sheldon Whitehouse (D-R.I.) said at the nomination hearing Monday for Supreme Court nominee Elena Kagan that he hopes the would-be justice would not be swayed by corporate interests if she is confirmed to the court.
Whitehouse cited court decisions — including the Citizens United decision — which he said improve the “strike zone for corporations.” In the Citizens United decision, the Supreme Court ruled that corporations can spend unlimited funds in U.S. elections.
“If confirmed, I hope and trust that you will adhere to the past institutional traditions of the Supreme Court and act with a clear understanding of the proper role of all the institutions of government provided for us by our founding fathers,” Whitehouse said. “It is a great Constitution we have inherited.”
We will include his full opening statement when we get it.
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WASHINGTON, D.C. - Senator John Kerry (D-Mass.) today delivered the following remarks at the confirmation hearing of Solicitor General Elena Kagan to be the next Associate Justice of the Supreme Court of the United States:
Mr. Chairman, 16 years ago I had the privilege to introduce Stephen Breyer to this Committee.
With the loss today of Senator Byrd, I am particularly reminded of Senator Kennedy sitting beside me that day. As you know, Ted served on this Committee for 46 years - and I know the pride he would feel seeing Elena Kagan nominated for the Supreme Court of the United States.
When Ted introduced then-Judge Breyer, he quoted Oliver Wendell Holmes that “every calling is great when greatly pursued.” Those words applied to Stephen Breyer, and I can share with you my complete confidence that they apply equally to Solicitor General Elena Kagan.
Massachusetts is proud of Elena Kagan’s accomplishments, and we believe that through these hearings as you get to know her as we do, she will earn broad bi-partisan support just as she did when she was nominated as Solictor General.
By now we have learned the high points of her record - a trailblazing pace culminating in her selection as the first woman to serve as Dean of Harvard Law School and the first woman to serve as Solicitor General. If confirmed, she will make history once again. In an America where women comprise more than half the population, she’ll join Justices Ginsberg and Sotomayor and for the first time in our history, a full third of the Court will be women.
But there’s much more that distinguishes Elena: Her life has been characterized by her passion for public service and her awareness of what it means to be a public citizen. A close friend from her days clerking for Justice Marshall, remembers Elena interviewing at a big law firm in New York, meeting with a young partner who - with no family to support - was pulling in close to a million dollars a year. So Elena asked him, “What do you do with all that money.” And he replied, “I buy art.” Elena just shook her head in the conviction that there were better ways to expend her life’s work, and she continued to pursue efforts to more directly impact the lives of those around her.
Elena’s skills and intellect quickly brought her to the attention of the Clinton White House which is when I first got to know her. I’d been asked by the Chairman of the Commerce Committee to help break through a stalemate on a bi-partisan tobacco bill. It was a difficult issue for both caucuses. Elena became the Administration’s point person. When we started out, no one gave us hope of getting close to passage. But Elena camped out in the Vice President’s office off the Senate floor, shuttling back and forth to the White House. She worked night and day, working every angle, thinking through every approach. On the eve of the Commerce Committee’s markup, things seemed to be falling apart. But Elena wasn’t going to let that happen. She got together with the Republican senators and staff, listened carefully, and helped all of us to meet the last minute objections. It was classic Elena - she saw a path forward when most folks saw nothing but deadlock. And it led to a 19-1 vote to pass the bill out of Committee - a mark of bi-partisanship that few imagined was possible.
She was tough and stubborn when necessary, but she also knew when it was necessary to strike a compromise. She had a knack for knowing how to win people over - an ability to make people see the wisdom of an argument. I remember lots of late nights in a very quiet Capitol building, walking off the Senate floor to meet with my staff and Elena. And, invariably, Elena would have another new idea, a fresh approach. It was a tutorial in consensus-building from someone for whom that was pure instinct - and it won Elena the respect of Republicans and Democrats alike.
No doubt her hands-on experience working the governing process is a critical component of what makes her a terrific choice - someone who really understands how laws are created and the real-world effects of their implementation. It’s a reminder why some of the greatest Justices in our history were not judges before they sat on the highest Court - and among those are names like Frankfurter and Brandeis.
I might add that she brought the same pragmatic knack for consensus building to her stewardship at Harvard Law. There she found what was affectionately acknowledged as a dysfunctional and divided campus - and transformed it again into a cohesive institution, winning praise from students and faculty across the ideological spectrum. Elizabeth Warren, Elena’s colleague at Harvard and Chair of the Congressional panel overseeing our relief efforts, says simply “she changed morale around here.”
Charles Fried, the former Solicitor General under President Reagan and renowned conservative constitutional expert, says of her prospects as a Justice: “I think Elena would be terrific - because, frankly, the Court is stuck. The great thing about Elena is there’s a freshness about her that promises some possibility of getting away from the formulas that are wheeled out today on both sides. I have no reservations about her whatsoever.”
John Manning, the first hire under Kagan’s deanship - a conservative and an expert on textualism and separation of powers says: “I think one of the things you see in Kagan as Dean was that she tried to hire folks with different approaches to law and different ideological perspectives. She was equally as strong in her praise for Scalia as she was in her praise for Breyer - she celebrated both. It’s a good predictor of how she’ll be as a judge. She would be fair and impartial - the sort of judge who would carefully consider briefing and argument in every case. The sort of judge I would want if I didn’t know which side of the case I was arguing.”
And so, my colleagues, I’m glad that in these next days you’ll get the chance to know Elena as so many of us have in Massachusetts -as an extremely capable public servant well grounded in the Constitution, and committed to the values we all share as Americans.
I always remember what Justice Potter Stewart said about what makes a first rate judge. He said “The mark of a good judge is a judge whose opinion you can read and . . . have no idea if the judge was a man or woman, Republican or Democrat, a Christian or Jew . . . You just know he or she was a good judge.” I believe Elena Kagan will meet that standard - and I have every confidence that she’ll be outstanding in every sense of the word.
Thank you, Mr. Chairman, for the privilege of introducing this fine person on this historic day.
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Sen. Ted Kaufman (D-Del.) said at the nomination hearing Monday for Supreme Court nominee Elena Kagan that the would-be justice’s lack of judicial experience is not a black mark on her record.
Kaufman said several justices have come to the court without a judicial background, including Justices Earl Warren and William Rehnquist.
“Some pundits, and some senators, have suggested that your lack of judicial experience is somehow a liability,” Kaufman said. “I could not disagree more. While prior judicial experience can be valuable, the court should have a broader range of perspectives that can be gleaned from the appellate bench.”
Full remarks are embedded below.
Ted Kaufman Opening Statement at Supreme Court Confirmation Hearing of Solicitor General Elena Kagan
Welcome, Solicitor General Kagan, and welcome also to your family and friends. Like my colleagues, I want to congratulate you on your nomination.
We are now beginning the end of an extraordinarily important process. Short of voting to go to war, a Senator’s constitutional obligation to “advise and consent” on Supreme Court nominees is probably his or her most important responsibility. Supreme Court justices serve for life; once the Senate confirms a nominee, she is likely to affect the law and the lives of Americans much longer than the Senators who confirmed her.
As senators, I believe we have an obligation not to base our decision on empty political slogans, or on charges of guilt by association, or on any litmus test. Instead, we should focus on your record and your answers to our questions, which will allow us to determine whether you have the qualities necessary to serve all Americans, and the rule of law, on our nation’s highest court.
Over the years, as chief of staff to then-Senator Biden, teaching at Duke Law School, and as a Senator myself, I’ve thought a lot about the qualities I believe a Supreme Court nominee should have: A first-rate intellect; significant experience; unquestioned integrity; absolute commitment to the rule of law; unwavering dedication to being fair and open-minded; and the ability to appreciate the impact of court decisions on the lives of ordinary people.
Last year, when Justice Souter announced his retirement, and again when Justice Stevens announced his retirement this April, I suggested that the Court would benefit from a broader range of experience among its members. My concern was not just the relative lack of women or racial or ethnic minorities on our federal courts, though that deficit remains glaring.
I was noting the fact that the current Justices all share very similar professional backgrounds. Every one of them served as a federal circuit court judge before being appointed to the Supreme Court. Not one of them has ever run for political office, like Sandra Day O’Connor or Earl Warren or Hugo Black.
General Kagan, I am heartened by what you would bring to the Court based on your experience working in and with all three branches of government, the skills you developed running a complex institution like Harvard Law School, and yes, the prospect of your being the fourth woman to serve on our nation’s highest court.
Some pundits, and some Senators, have suggested that your lack of judicial experience is somehow a liability. I could not disagree more. While prior judicial experience can be valuable, the Court should have a broader range of perspectives than can be gleaned from the appellate bench.
General Kagan, you bring valuable non-judicial experience and a freshness of perspective that is lacking on the current Court. In the history of the Supreme Court, more than one-third of the Justices have had no prior judicial experience before being nominated. And a nominee’s lack of judicial experience has certainly been no barrier to success.
When Woodrow Wilson nominated Louis Brandeis in 1916, many objected on the ground that he had never served on the bench. Over his 23-year career, however, Justice Brandeis proved to be one of the Court’s greatest members. His opinions exemplify judicial restraint and his approach still resonates in our judicial thinking more than 70 years after his retirement.
Felix Frankfurter, William Douglas, Robert Jackson, Byron White, Lewis Powell, Harlan Fiske Stone, Earl Warren and William Rehnquist all became justices without having previously been judges. And they certainly had distinguished careers on the Supreme Court.
As Justice Frankfurter wrote about judicial experience in 1957, “One is entitled to say without qualification that the correlation between prior judicial experience and fitness for the functions of the Supreme Court is zero.”
We’ve all now had the opportunity to review your extensive record as a lawyer, a policy advisor, and administrator. Throughout your career, you have consistently demonstrated the all-too-rare combination of a first-rate intellect and an intensely pragmatic approach to identifying and solving problems.
Last summer, during then-Judge Sotomayor’s confirmation hearing, I focused on the current Court’s handling of business cases. I am convinced, by education, experience, and inclination, that the integrity of our capital markets, along with our democratic traditions, is what makes America great. Too often, however, today’s Supreme Court seems to disregard settled law and congressional policy choices, in order to promote business interests at the expense of the people’s interests.
Whether it’s pre-empting state consumer protection laws in Medtronic, striking down punitive damages awards in Exxon, restricting access to the courts in Twombly, or overruling 96 years of pro-consumer antitrust law in Leegin, this Court gives me the impression that in business cases, the working majority is business-oriented to a fault.
The Exxon case demonstrates how this pro-business orientation can affect the lives of ordinary people. In that case, four of the eight Justices who participated voted to bar all punitive damages in maritime cases against employers like Exxon for their employees’ reckless conduct.
Justice Alito did not participate in the case, so the Court split four-to-four on this point. But had he participated, and voted with the conservatives on the Court, then today individuals harmed by oil spills like Exxon Valdez would be subject to a flat ban on punitive damages in maritime actions. As we consider the current disaster in the Gulf, that prospect is worth contemplating.
The Court’s decision last fall in the Citizens United case, which several of my colleagues have mentioned, is the latest example of the Court’s pro-corporate bent. The majority opinion in that case should put the nail in the coffin of claims that “judicial activism” is a sin committed by judges of only one political ideology.
What makes The Citizens United decision particularly troubling is that it is at odds with what some of the Court’s most recently confirmed members said during their confirmation hearings. We heard a great deal then about their deep respect for existing precedent. Now, however, that respect seems to vanish whenever it interferes with a desired pro-business outcome.
As I’ve said before, charges of judicial activism are often unhelpful – empty epithets divorced from a real assessment of judicial temperament. But that doesn’t mean the term “judicial activism” is necessarily meaningless.
If we want to take the term seriously, it might mean a failure to defer to the elected branches of government; it might mean disregard for long-established precedent; it might mean deciding cases based on personal policy preferences rather than the law; or it might mean manipulating a case to get at issues not squarely presented by the parties.
By any of these definitions, the decision in Citizens United was highly “activist.” The Court summarily overturned years of settled precedent and statutory law that had limited the influence of corporate electioneering. Moreover, the Court took it upon itself to order that the case be re-argued on broad constitutional grounds, which neither party had asked it to do. In effect, the Justices wrote their own question of the case in order to obtain their desired result.
I share the fear expressed by Justice Stevens in his dissent – that the Court’s focus on results rather than the law in this and other cases will do damage to the Court as an institution.
General Kagan, I plan to spend the bulk of my time asking you about the Court’s business cases, based on my concern about its apparent bias.
One of the aspirations of the American judicial system is that it render justice equally to ordinary citizens and the most powerful. We need Justices on the Supreme Court who not only understand that aspiration, but also are committed to making it a reality. For Americans to have faith in the rule of law, we need one justice system in this country, not two.
Very soon, those of us up here will be done talking, and you’ll have the chance to testify, and then to answer our questions. I look forward to your testimony.
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