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Confirmation Hearing for Elena Kagan
Aired June 28, 2010 - 12:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
BROOKE BALDWIN, CNN ANCHOR: And hello once again. I'm Brooke Baldwin, in this Monday for Tony Harris.
And top of the hour here in the CNN NEWSROOM, where anything can happen, here are today's top stories.
In just half an hour from now, the Senate begins its confirmation hearing for Supreme Court nominee -- there she is -- Elena Kagan. CNN live coverage with the best political team on television coming your way.
Also, senators mourn Robert Byrd. The West Virginia Democrat -- really, he's been called the "Dean of the Senate" -- dies after serving more than half a century on Capitol Hill.
And it looks like Tropical Storm Alex will steer clear of the Gulf oil leak site. It is aiming instead at Mexico, or even perhaps Texas.
But let's get started with our lead story. Here it is.
(BEGIN VIDEO CLIP)
BARACK OBAMA, PRESIDENT OF THE UNITED STATES: -- not just for her intellect and record of achievement, but also for her temperament, her openness to a broad array of viewpoints, her habit -- to borrow a phrase from Justice Stevens -- of understanding before disagreeing, her fair-mindedness and skill as a consensus builder.
(END VIDEO CLIP)
BALDWIN: President Obama was praising Supreme Court nominee Elena Kagan, as he announced her as his choice to replace retiring Justice John Paul Stevens, whose last day, by the way, is today. The confirmation hearing for Kagan begins this hour, and is it promises to be contentious.
Senior Congressional Correspondent Dana Bash joins us live from Capitol Hill with a preview of the hearing.
And Dana, of course -- leave it to Dana Bash -- you've got in your hot hand, what, a preview of Kagan's opening statement?
DANA BASH, CNN SR. CONGRESSIONAL CORRESPONDENT: That's right. I have to say that the White House released some excerpts of what Elena Kagan is going to say when she goes behind me and she gives her opening statement later this afternoon before this panel of the Senate Judiciary Committee.
And now she is going to talk about, according to these short excerpts, that she believes that decisions are best made when you come to them with an open mind. And she also is going to, at least from the excerpts that we see, is going to give a little bit of a window into how she can -- will approach her job as Supreme Court justice, if she is confirmed.
I'll read you an excerpt.
She's going to say, "The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals. But the Court must also recognize the limits on itself and respect the choices made by the American people."
You see, she is walking right down the middle there, trying to appeal to both sides, if you will, ideologically here of the folks and the senators she is going to be approaching. And, you know, a big question for a lot of these senators, Democrats and Republicans -- but for the most part, Republicans have been voicing these concerns -- is that she has never served on the federal bench. She has never served on any bench at all. And, in fact, she really just, for the first time, argued before any court two years ago when she became the solicitor general of the United States, tapped by President Obama to do that.
So what you are hearing from Republicans over and over is they're concerned about that, but more importantly, what they say is concern about the positions that she advocated for -- when working for Democratic presidents, specifically President Clinton. And that is what we are going to hear specifically, I believe, from the ranking Republican on this committee, Jeff Sessions.
Listen to what he said on "AMERICAN MORNING."
(BEGIN VIDEO CLIP)
SEN. JEFF SESSIONS (R), JUDICIARY COMMITTEE: She has the least experience of any nominee in 50 years. She was a Clinton operative for quite a number of years, the point person on efforts to restrict gun rights, the point person on blocking partial-birth abortion.
At Harvard, she barred the military from the recruiting offices, demeaned them, in violation of law. And her legal brief was rejected 8-0 by the Supreme Court.
There are a number of things here that cause us to believe, and any American to be concerned, that she would be an activist judge.
(END VIDEO CLIP)
BASH: Now, just one quick point to follow on, because this is something that we're likely to hear from a lot of these Republicans, and that is, when Elena Kagan was the dean of Harvard Law School, she tried to ban military recruiters from coming on campus because of the military's "Don't Ask, Don't Tell" policy banning gays in the military. So, that is something we know Republicans have been seizing on.
For their part, Democrats on this panel, at least some of them I talked to this morning, say that they're going to make the case that they think it's great that she doesn't have the kind of experience that the eight other justices who are on the Supreme Court has, and that she brings some real world experience.
We're going to get going in about an hour and a half. The questions from these senators, though, won't begin until tomorrow -- Brooke.
BALDWIN: But, Dana, before I let you get going, and as we watch for the Republicans to seize upon that issue, and I'm sure certainly others, what about the Democrats? Because I look behind you, I see the panel, the chairs, and I know there are more chairs for the Democrats. They have a healthy majority.
What might their strategy be today?
BASH: Look, I mean, the truth of the matter is that a lot of these Democrats have questions just like Republicans do. And based on the same reason. Because, again, Elena Kagan does not have a judicial record.
So, you are hearing mostly from the liberal groups who are pretty active on this, very active on this, that they are concerned that she is not liberal enough. For example, they point to some of the writings that she did during the Clinton administration about abortion, what she has argued in the Bush -- the Obama administration, rather, on executive privilege. There is concern among Democratic groups about that.
Interesting to see if we hear the Democratic senators voice some of that in these hearings.
BALDWIN: We'll be listening for that, I know you'll be listening for that. I'll let you go. I know that hearing gets under way in about 25 minutes.
Dana Bash, we'll be looking for your coverage. Thank you.
Just want to remind everyone, we will take you to Washington shortly here for our live coverage of the Kagan confirmation hearing. Chief National Correspondent John King will join us, along with an entire panel of judicial, political experts. That's coming up in about five minutes, 12:10 Eastern Time, here on CNN.
Also, the Supreme Court ended its term today with a landmark decision here on gun rights. Here's what happened.
Justices struck down Chicago's ban on handguns, maybe here what's being touted as the most restrictive in the country. And they ruled that the Second Amendment gives individuals the right to bear arms in state and local jurisdictions. The Court says gun control laws may be permissible, but they must be reasonable.
Today's case expands the decision. You'll remember this from two years ago, 2008. That was when the Supreme Court invalidated Washington, D.C.'s gun law, ruling that individual gun rights applied in federal jurisdictions.
Also, Senator Robert Carlyle Byrd, a man of modest beginnings who championed all things West Virginia, the 92-year-old Senator -- by the way, the longest-serving member of Congress -- died early this morning.
A statement from President Obama reads in part -- here it is -- "Senator Byrd's story was uniquely American. He was born into wrenching poverty, but educated himself to become an authoritative scholar, respected leader, and unparalleled champion of our Constitution."
Colleagues, as you can imagine, today, really both sides of the aisle, politically speaking, are calling Senator Byrd irreplaceable.
(BEGIN VIDEO CLIP)
JOSEPH BIDEN, VICE PRESIDENT OF THE UNITED STATES: Throughout his 51 years, the longest tenure of any member in Congress in the United States, Robert C. Byrd was a tough, compassionate and outspoken leader, and dedicated, above all else, to making life better for the people of the Mountain State, his state, the state of West Virginia. He never lost sight of home.
(END VIDEO CLIP)
(BEGIN VIDEO CLIP)
SESSIONS: I used to catch him on Friday mornings when he would come down and talk about various things. One day, he railed against textbooks, calling them touchy-feely twaddle. He was a remarkable man, no doubt about it.
(END VIDEO CLIP)
BALDWIN: If you would like to read more about the career of Senator Robert Byrd, all you have to do is head to CNNPolitics.com. There, you will see this amazing photo gallery, and you can read all kinds of different reaction to his passing.
Again, that's CNNPolitics.com.
Also today, new numbers from BP on the cost of the Gulf oil leak as the disaster reaches day 70 now. BP says it has spent about $2.6 billion responding to this disaster. That includes containment efforts, payments to states, claims payments.
By the way, here's the big piece of news. Oil now officially washing on shore in Mississippi. This is the first time they have seen it there. You see the tar balls. Really, just the gooey, icky oil has been spotted in at least four locations. Officials say the affected areas are relatively small, and so far have not closed any the of beaches, at least yet.
(WEATHER REPORT)
BALDWIN: Meantime, I want to remind you, CNN's John King, Candy Crowley just ahead here with the best political team on television, of course covering those hearings for you from the Supreme Court.
Stay here. You're watching CNN NEWSROOM.
(COMMERCIAL BREAK)
CANDY CROWLEY, CNN SR. POLITICAL CORRESPONDENT: You are looking at a live picture of the United States Supreme Court. If you ever come to Washington, you have to go here, one of those buildings where, if you stand on the steps, you get chills up your spine.
This is the last day of the Supreme Court, and a big day up there, a huge decision on guns, as well as retirement day for Justice John Paul Stevens. The question now is, who will take his place? And it's up to the people in that building. That, of course, is the U.S. Capitol.
Inside, the Senate Judiciary Committee getting ready today to hold hearings on Elena Kagan. She, of course, President Obama's pick to be the next person on the Supreme Court.
Lots of high drama, because you add in to that that, today, the U.S. Senate lost its oldest and longest-serving member. Senator Robert Byrd of West Virginia died early this morning.
So, lots of activity, lots of history going on.
I'm Candy Crowley.
JOHN KING, CNN CHIEF NATIONAL CORRESPONDENT: And I'm John King.
And welcome to CNN's special coverage of the Elena Kagan confirmation hearings.
Always, Candy, a great ritual inside the Capitol. In this case, the second Supreme Court nomination for this young president .
He is just a year and a half into his term. This will be his second. Justice Sonia Sotomayor breezed through confirmation, although heading into that there was a lot of high drama about a "wise Latina" comment.
In the case of Elena Kagan, Candy, nothing that anyone has been able to grab on to. So, instead, Republicans are starting to say here is someone with a career of political appointments, someone who has never been a judge. They are trying to say this is some kind of liberal, political operative the president is trying to sneak onto the bench, and it would be significant, because she is 50 years old.
She would be the youngest member of the court, presumably there for 30 years or more.
CROWLEY: It's a lifetime appointment, as they say, and that's a long lifetime yet to go.
And you're right, the Republicans have been unable -- first of all, because so many other things have been in the news. But they have been unable to get any kind of traction at this point on big things against Elena Kagan.
I think part of the problem has been, you know, people always say, oh, the paper trail this person left, and look at this, and they pore over all of these decisions that the judicial -- the people who have served as judges and them were nominated. And now it's like, oh, there is no paper trail. Good heavens, we don't know anything.
So, there is the good and the bad about it. But nonetheless, these are hearings that are also taking place in the middle of an election year.
It's June. There are elections in November. Nothing says turnout like Supreme Court judges, especially for the Republican side. So, even if Republicans cannot defeat this nominee, and many of them may vote for her, but even if they cannot defeat her, they certainly want to make their points known, because their base is listening.
KING: And as we talk here, you're looking inside the Senate Judiciary Committee hearing room. They're getting ready for the hearings today, of course.
What you'll get is opening statements from all of the members, 19 members of this committee. That takes quite some time.
They will offer their preliminary assessments of the nominee. And then Elena Kagan will have an opening statement. And then we'll get into Q&A. That will be tomorrow, not today.
But today, we will learn the parameters of this debate. And as we wait for these proceedings to begin, let's go around our table here.
We have an expert group here from the law, from the politics to help us through this.
And Jeff Toobin, let me start with you.
And you know this nominee very, very well. She is both a friend and a former colleague in school and the like.
What do you look for as the most important thing on day one?
JEFFREY TOOBIN, CNN SR. LEGAL ANALYST: I think what she is going to have to establish is that she is a judge, and she has the ability to be a judge, because she has never been one before. Now, it is true that 40 of the 112 people who had served on the Supreme Court have also not been judges, so there is nothing unprecedented about it, but the recent tradition has been that you appoint former federal appeals court judges.
The other thing she has to establish is that she will be independent. She is associated with Democratic politics. She worked in the Clinton White House. She was a high-ranking member of the -- is a high-ranking member of the Obama Justice Department.
The idea that she will be a judge for all people, not just Democrats, is going to be something she is going to have to establish.
KING: Victoria Toensing?
VICTORIA TOENSING, FMR. JUSTICE DEPT. ATTORNEY: But, of course, in the end, there is a 60/40 split in that Senate, and the Democrats, even though they lost Robert Byrd, will still control this whole hearing. So, what the Republicans are going to have to do is educate the public.
I don't have a problem so much with her not being a judge. I do have a problem with her not having been a real lawyer.
I mean, I have a box of tissues in my office for people who come to me as clients, because -- and I understand having been in government for 20 years and now in private practice for about the same amount of time, what the government can do and what it means when the government comes at a person. She has never had that experience. She has been in the highfalutin world of teaching and government. That's it.
KING: And, Gloria Borger, that will be one of the Republican lines against her. Does it take any of the drama out of this that, as in the case of Justice Sotomayor, you have somebody left of center replacing somebody left of center? So, we see a court that is often divided 5-4. There is no reason heading in, although judges sometimes surprise us, justices sometimes surprise us.
No reason heading in though to think that this will be a dramatic ideological shift on the court.
GLORIA BORGER, CNN SR. POLITICAL ANALYST: No, there isn't. So, it does take a little bit of the drama out of it. But I do think what Republicans are going to try and do is sort of take a step back and put the sort of big government, activist, Democratic, Obama agenda, the question of empathy of judges, which is what the president talks about so much on trial here, as well as Elena Kagan. And they're going to try and elicit answers from her.
Remember, this is a woman who wrote once in one of her academic writings that the Bork hearings were the last best real hearings we had, and that it's become a vapid and hollow charade since. So, let's see. And they're going to talk about that Kagan standard. They're going to say, oh, OK, you think they ought to answer some questions, how about answering some questions?
KING: That was then, this is now, I suspect is what we'll get.
BORGER: Right.
(LAUGHTER)
KING: Donna Brazile, we have talked about the line the Republicans are likely to take, but the Democrats have looked through the thousands of pages of the e-mails from the Clinton days, her academic writings, and many of what we'll call liberal interest groups, whether it be on the interest of gun rights, on abortion rights, on civil rights, many of them are a little concerned, because she was viewed as a pragmatist. She is very careful and cautious in most of her political writings when serving in government jobs.
And many of the people say, wait a minute, in Justice John Paul Stevens we had a champion, and she is kind of a blank slate. They want the Democrats to press her, as well.
DONNA BRAZILE, CNN CONTRIBUTOR: Of course, Democrats want to know as much as they possibly can about her views on those critical issues, whether it's affirmative active action or abortion rights or the death penalty. But at the same time, she is a brilliant legal scholar.
She has been a committed public servant in both the law, and as well as in government. And I think what you will hear Ms. Kagan, when she not only gives her testimony, but responds to questions by the senators, you will hear someone who will protect and cherish those values inherent in our Constitution.
So, I think liberals and conservatives and all of the partisans will come away with whatever they please. But she is more of a moderate in the mold of Sandra Day O'Connor. And I'm pleased to see that another woman will make it to the Supreme Court.
KING: I suspect, Ed Rollins, that the Republicans don't view her as another moderate in the model of Sandra Day O'Connor.
You were there at Ronald Reagan's side when Justice O'Connor took her spot. Where are you today?
ED ROLLINS, CNN CONTRIBUTOR: Well, I think where we are is I think they view -- at least the Obama team -- views her as an intellectual who will be able to compete over a period of time both for Kennedy's vote, in the short run, which is the swing vote, and long term, she will be on this court with Alito and Roberts, two young -- and Scalia, obviously, an older man -- and I think they see her as the intellectual. I don't think they saw Justice Sotomayor as the intellectual -- smart, but not going to drive the long-term opinions.
I think the big debate here is the Obama -- in the campaign mode, the Obama team is trying to make this court into something it's not. It's trying to make it as the protector of business. And I think the counter here is going to be, this is a left-wing, liberal, Harvard Law School dean, all the kinds of things that my friend Jeff here will get his hair on the back of his neck up on, but that's -- TOOBIN: If you're going to start insulting people by calling them Harvard Law School graduates --
(CROSSTALK)
(LAUGHTER)
ROLLINS: As a Chico State graduate, I just -- anybody east of the Mississippi.
But I think it will be interesting. She's an eminently qualified person. I think the only missing element is the judicial.
CROWLEY: As we have been talking here on the right side of our screen for our viewers, you have been looking at the Senate Judiciary room. All of those people that have been in front of the bench are photographers.
Why? Because this is a huge deal. These are people they see every day, with the exception of Elena Kagan.
But this doesn't happen all that often. And so it's always an exciting time when you have something as important as a lifetime appointment to the Supreme Court, which is why we want to bring in our senior congressional correspondent, Dana Bash, who is in that room to kind of give us a little bit of the optics and the feel -- Dana.
BASH: Well, you said it. And you've been in this seat, so you know exactly what these moments feel like.
I have to say, though, the kind of electricity and tension that we have felt the in past for Supreme Court nomination hearings, it's a little bit more key. In fact, a lot more low-key now.
You have a Democratic panel that feels really pretty confident, a White House that feels pretty confident, about Elena Kagan's chances of being confirmed, and you definitely sense that in the room. But I want to just pick up on one thing that you were all talking about, which is sort of the bigger politics of this.
And definitely, in talking to both Democratic and Republican senators who are going to be back there, and making their case for and against Elena Kagan, hearing a lot of talk about kind of the bigger picture of political year. Democrats already saying, for example, hitting on the one case, the one -- the first case that Elena Kagan argued before the Supreme Court as solicitor general, a campaign finance reform case. They're going to say, ah-ha, she lost that case. The Supreme Court ruled that money could effectively be free-flowing from unions and corporate interests. Democrats are going to say, ah- ha, that is proof that this is a government -- Republicans run by special interests.
So, it's a little bit off key, but it's interesting that that is what we have been hearing from Democrats a lot. Frankly, a lot more in many ways than we have been hearing about Elena Kagan and her qualifications. So, I think you're going to see a lot of that politicking four and a half months before Election Day in these hearings.
KING: Politicking four and a half months before Election Day. What a shock here in Washington.
Isn't that a shock?
(CROSSTALK)
KING: We've got a great group assembled. This is an important day for the country.
Elena Kagan, the president's nominee, she would be, as Jeff Toobin just noted, the 112th person to serve on the United States Supreme Court. She will be in that room in just a moment.
We're going to take a quick break. When we come back, the Senate Judiciary Committee will come to order and the confirmation of Elena Kagan will begin.
(COMMERCIAL BREAK)
KING: A live picture there on a beautiful but hot day in Washington. That is the Supreme Court of the United States. And in that building, the law of the land is settled, including some big decisions today we'll talk about in just a moment.
But Washington today wondering, will Elena Kagan be the next justice to take her place? And that will be decided in this room.
You're looking at the United States Capitol. Senator Orrin Hatch of Utah, a senior Republican on the committee, standing behind his seat. The rest of his colleagues not yet in the room.
You see them coming in there. Herb Kohl of Wisconsin on the bottom of your screen. There's Herb Kohl in the red tie on the top right.
We're waiting for the committee to take its place, and then the nominee will take hers. Elena Kagan, 50 years old, currently the solicitor general of the United States, the president's top lawyer to argue cases for the Supreme Court. He now wants her to sit on that court to replace the retiring Justice John Paul Stevens.
The drama about to begin in the United States Capitol.
I'm John King in Washington.
CROWLEY: I'm Candy Crowley in Washington.
This is going to be interesting. We have quite a panel here with a vast knowledge of how all of this works. And I want to read you something that we have pulled out, something that Elena Kagan wrote in another life, shall we say.
Talking about the Supreme Court hearings, where she wrote, "Subsequent hearings have presented to the public a vapid and hollow charade in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis." In the end, she says, "The process is so empty, and it may seem ever so tidy, muted, polite and restrained, but all that good order comes at great cost."
(LAUGHTER)
CROWLEY: So, how does she, shall we say, walk that one back?
TOOBIN: You know, she'll say, like, "Whatever." OK?
No. I think she is just going to answer some questions about the substance of what she feels about the law.
CROWLEY: Abortion is always one that comes up, right?
TOOBIN: Abortion will come up, separation of church and state, the death penalty. Certainly First Amendment issues related to the Citizens United case.
After today's major decision, she will certainly be asked about gun rights, because that's a very hot topic, very important to a lot of the senators. But I suspect she will be somewhat more forthcoming, not only because of what she wrote -- than Sonia Sotomayor was. In part, because she has such a thin public record on these issues. She will show a little more how she thinks about these issues, but probably not a lot.
TOENSING: But in that same article, she said when the candidate, the nominee has not written and has no past, that nominee should be questioned more carefully than the others who do have a past. And she also knocked in a footnote, Justice Rehnquist for having said the hearings should be more forthcoming, and yet changing his mind 20 years later when he became the nominee. So --
CROWLEY: Let me just -- I want to tell our viewers what they're looking at.
This is the view of the panel there that you see -- Senator Cornyn. We saw Senator Feingold coming in -- I'm sorry, Senator Feinstein coming in.
All of them -- they'll be here -- well, they're late. You know, what can I tell you? They're supposed to be sitting down and starting in 45 seconds, but, you know, it's the United States Senate.
John, we want to take a little bit of a look over at your Magic Wall on the current makeup of the court and how it reflects the general population.
KING: I'll take a little walk.
And one of things we say about the Supreme Court is it makes decisions about everybody's lives, whether you're 5 years old or 85 years old. The Supreme Court decides what's in and out in American law. But the court, frankly, does not look like America. Here is the Supreme Court right now by age right here. A little pause.
We see Elena Kagan walking into the room. You see her in blue there.
Let's watch for just a minute as she takes her seat at the witness stand, escorted by Patrick Leahy, the chairman. And then behind her, Jeff Sessions, the ranking Republican. They are the two senators who are most important to the procedure we're about to watch over the next several days here.
A very important lesson there in how to use the microphone. Elena Kagan smiling and relaxing as she sits down. The committee's about to come to order.
Let's very quickly go through this. If you look at the darker numbers, this is America, 48 percent of the country is between the age of zero and 34. Twenty-two percent between the age of 35 and 49. Look on the Supreme Court. This is with Justice Stevens. Forty-four percent of the court is between 50 and 64. Forty-four percent of the court between 65 and 79. Eleven percent of the court, only 3 percent of America, is over the age of 80.
What would happen if Elena Kagan takes that seat? Well, she is just 50 years old. So you see this segment would go up. The court would be younger with Elena Kagan, but still older than most of America. That, of course, to be expected because of the -- you want somebody with experience on the court. You want older Americans.
The Supreme Court here versus the United States. Sixty-six percent of the court is men. About 49 percent of the country is. Thirty-three percent of the court -- this is with Elena Kagan, assuming she is confirmed, would be female.
Here's something that's quite interesting if you get into - if you come down here into race. Of course the court is more white. You have one Latino member on the court. You have an African-American member on the court. I'm going to walk back over as we continue to get - we'll do more of the interesting demographics as we go. But as the hearing gets underway, let me walk over this way. Listen to Chairman Leahy.
SEN. PATRICK LEAHY (D-VT), JUDICIARY COMMITTEE CHAIRMAN: I would like to recognize senators in this order of seniority, going -- doing the usual back and forth. Senator Sessions and I will each give an opening statement. And following our opening statement, take turns back and forth. I would urge senators to stay -- in fact, we're going to have to stay within the 10 minutes, just simply to keep on schedule.
And - first, Solicitor General Kagan, welcome to our committee room. There is somewhat more people here than usual.
But let me begin. One of the things that has -- will change slightly our schedule this week is the death of Senator Byrd. All of us, I believe it's safe to say, both Republicans and Democratic senators, are saddened by his death. No senator came to care more about the Constitution, be a more effective defender of our constitutional government than the senior senator from West Virginia.
In many ways, he was the keeper of the Senate flame, the fiercest defender of the Senate's constitutional role and purgatives. I don't know how many -- how many times we saw Senator Byrd hold up the copy of the Constitution. The difference between him holding it up and any one of us holding it up, he could put it back in his pocket and recite it verbatim, the whole Constitution. Others will speak of his record for the time served in the Senate and Congress for a number of votes cast.
I know him as a mentor and a friend. He served for a time on this committee. I was honored to sit near him, the same row on the Senate floor and engage in many discussions about the Senate its rules, about the issue of the moment or about our families. It was a privilege to stand with him and fight against (INAUDIBLE) in the Constitution and what the two of us felt was an unnecessary and costly war in Iraq.
He was an self-educated man. He learned much throughout his life. He had much to teach us all. Senator Byrd was such an extraordinary man of merit and grit and determination, who loved his family. He drew strength from his deep faith, who took it to heart his oath to support and defend the Constitution. The arc of his career and public service is an inspiration to all and should inspire generations of Americans.
Now, on the issue before us today.
There have been 111 justices on the Supreme Court of the United States. Only three have been women. If she is confirmed, Solicitor General Kagan will bring the Supreme Court to an historical high watermark. Elena Kagan earned her place at the top of the legal profession. Her legal qualifications are unassailable. As a student, she excelled at Princeton, Oxford and Harvard Law School. She was a law clerk to a great Supreme Court justice, Justice Thurgood Marshall. And I appreciate seeing Justice Marshall's son, Thurgood Marshall, in the audience here today.
She worked in private practice and briefly for then-Senator Biden on this committee. She taught law through the nation's most respected law schools. She counseled President Clinton on a wide variety of issues. She served as dean of Harvard Law School and is now the solicitor general of the United States, sometimes referred to as the tenth justice.
I believe we're a better country for the path -- that (ph) the path of excellence Elena Kagan has taken in her career. It's a path now open to both men and women. As Chief Justice Marshall wrote, our Constitution is intended to endure for ages, and consequently to be adapted to the various crises of human affairs. He and other great justices have recognized that the broadly worded guarantees and powers granted in the Constitution adapt to changing circumstances.
Consequently, our Constitution has withstood the test of time. The genius of our founders was to establish a Constitution firm enough to enshrine freedom and the rule of law as guiding principles, yet flexible enough to sustain a young nation that was destined to grow into the greatest, the richest, most powerful nation on earth. And I might say, one of the most diverse nations on earth.
It took more than four score years and a civil war to claim the lives of hundreds and thousands to end the enslavement of African- Americans. It included citizens, all persons, born and naturalized in the United States. To the Civil War amendments that followed, we transformed the Constitution into one that more fully embraced equal rights and human dignity. The country and our democracy were stronger for it.
The job was not complete. It was halfway through the last century that racial discrimination was dealt a blow by the Supreme Court in the modern landmark case of Brown versus Board of Education. Congress passed the Civil Rights Act of '64 and the Voting Rights Act of '65. And America began to provide a fuller measure of equality to those who were held back for so long because of the color of their skin.
Our path to a more perfect union was included -- also included the rejection 75 years ago of conservative judicial activism by the Supreme Court and our establishing a social safety net for all Americans. It began with us outlawing child labor and guaranteeing a minimum wage. Through Social Security, Medicare, Medicaid, Congress ensured that growing old no longer means growing poor. And that being older or poor no longer means being without medical care. The progress continues today. We are better for it.
Out of the 100 members of the Supreme -- 100 members of the Senate stand here in the shoes of more than 300 million Americans as we discharge our constitutional duty with respect to this nomination.
The Supreme Court exists for all Americans. Only one person gets to nominate somebody for the court. Only 100 Americans get to vote on whether that person should be on the court or not. It is an awesome responsibility. And I urge the nominee to engage with this committee and through these proceedings with the American people in a constitutional conversation about the role of the courts and our Constitution.
When we discuss the Constitution's commerce clause or spending power, we're talking about congressional authority to pass laws to ensure protection of our communities from natural and man-made disasters. To encourage clean air and water. To provide health care for all Americans to ensure safe food and drugs to protect equal rights. To enforce safe workplaces. And to provide a safety net for all seniors.
And I reject the ideological litmus tests from either the right or the left that some would apply to the Supreme Court nominees. I expect judges to look to the legislative intent of our laws. To consider the consequences of their decisions. To use common sense and to follow the law.
In my view, a Supreme Court justice needs to exercise judgment. Should appreciate the proper role of courts in our democracy. Should consider the consequences of decisions on the fundamental purposes of the law and the lives of Americans.
I will urge Solicitor General Kagan here publicly, what I've urged her privately, to be open, to be responsive, to share with us, but even more importantly with the American people, her judicial philosophy. But also to assure us of her judicial independence from either the right or the left.
I believe that fair-minded people will find her judicial philosophy well within the legal mainstream. I welcome questions to Solicitor General Kagan about judicial independence, but I'd urge senators on both sides to be fair. There is no basis to question her integrity. No one should presume that this intelligent woman has excelled during every part of her varied and distinguished career lacks independence.
And it is essential that judicial nominees understand that as judges, they're not members of any administration. The courts are not subsidiaries of any political party or interest groups. And our judges should not be partisans.
That's why the Supreme Court's intervention in the 2000 presidential election in Bush versus Gore was so jarring and why it shook, in many people's minds throughout this country, the credibility of the court. That's why the Supreme Court's recent decision, Citizens United, in which five conservative justices rejected the court's own precedent, rejected the bipartisan law enacted by Congress, rejected 100 years of legal development in order to open the door for massive corporate spending on elections was such a jolt to the system. The American people live in a real world of great challenges. The Supreme Court needs to function in that real world. within the constraints of our Constitution.
My own state of Vermont, the 14th state in the union, did not vote to join the union until the year the Bill of Rights was ratified. We are cautious in Vermont. Those of us in the green mountain state are protective of our fundamental liberties. We understand the importance the Constitution and its amendments have had in expanding individual liberties over the last 220 years. And I hope that Elena Kagan will demonstrate through this hearing that she'll be kind of independent justice who will keep faith with these principles. And keep faith with the words that are inscribed in Vermont marble over the front doors of the Supreme Court, "equal justice under law." I'll put the rest of my statement in the record. And, Senator Sessions.
SEN. JEFF SESSIONS (R-AL), JUDICIARY COMMITTEE, RANKING MEMBER: Thank you, Mr. Chairman.
And I would like to join you in recognizing the special moment of the loss of Senator Byrd, who's such an institution here. He taught all of the new senators something about the Senate. He believed there were two great Senates, the Roman senate and the American senate. And he wanted ours to be the greatest ever.
And I remember one day he gave a speech on a Friday morning that I heard in which he complained about textbooks and their failure to distinguish between a republic and a democracy. He went on at some length demonstrating that, and then called them touchy-feely twaddle. But he loved the Constitution. He loved our country. And he loved clarity of thought. And we will certainly miss him.
Miss Kagan, let me join Chairman Leahy in welcoming you here today. This nomination is certainly a proud day for you, and your family and your friends and rightfully so. I enjoyed very much our meeting a few weeks ago and appreciated the chance to talk with you then.
Mr. Chairman, thank you for your work on this nomination. As I have pledged, Republicans are committed to conducting this hearing in a thoughtful and respectful manner. It's not a coronation, as I've said, but a confirmation process. Serious and substantive questions will be asked. Miss Kagan will be given ample opportunity to respond.
Miss Kagan certainly has numerous talents and many good qualities, but there are serious concerns about this nomination. Miss Kagan has less real legal experience of any nominee in at least 50 years, and it's not just that the nominee has not been a judge. She has barely practiced law, and not with the intensity and duration from which I think real legal understanding occurs.
Miss Kagan has never tried a case before a jury. She argued her first appellate case just nine months ago. While academia certainly has value, there is no substitute, I think, for being in the harness of the law, handling real cases over a period of years.
What Miss Kagan's public record does reveal is a more extensive background in policy, politics, mixed with law. Miss Kagan's college thesis on socialism in New York seems to bemoan socialism's demise there. In her master's thesis, she affirmed the activist tendencies off the Earl Warren (ph) court, but complained that they could have done better -- a better job of justifying their activism.
President Obama's nominee has stated her political -- started her political career in earnest as a staffer on the presidential campaign of Michael Dukakis. She took leave from teaching at law school to work for this committee under then chairman Joe Biden to help secure the nomination of Ruth Bader Ginsburg, a former council for the ACLU, and now one of the most active members in (ph) justices on the Supreme Court.
And know - I know you would join with me, Mr. Chairman, expressing our sympathy to Justice Ginsburg on the loss of her husband also.
LEAHY: A wonderful man.
SESSION: Professor Kagan left teaching law to spend five years at the center of politics, working in the Clinton White House doing, as she described it, mostly policy work. Policy is quite different than intense legal work. For example, in the office of legal counsel are some of the divisions in the Department of Justice.
During her White House years, the nominee was the central figure in the Clinton-Gore effort to restrict gun rights, and as a dramatic 5-4 decision today in the McDonnell (ph) case shows, the personal right of every American to own a gun hangs by a single vote on the Supreme Court.
Miss Kagan was also the point person for the Clinton administration's effort to block congressional restrictions on partial birth abortions. Indeed, documents show that she was perhaps the key person who convinced President Clinton to change his mind from supporting to opposing legislation that would have banned that procedure.
During her time as dean at Harvard, Miss Kagan reversed Harvard's existing policy and kicked the military out of the recruiting office in violation of federal law. Her actions punished the military and demeaned our soldiers as they were courageously fighting for our country in two wars overseas.
As someone who feels the burden of sending such young men and women into harm's way, and who spent much time drafting and redrafting legislation to ensure military recruiters were treated fairly on campus, I can't take this issue lightly. Dean Kagan also joined with three other law school deans to write a letter in opposition to Senator Graham's legislation establishing procedures for determining who was an enemy combatant in the war on terror. She compared this legislation, which passed 84-14, to the fundamentally lawless actions of dictatorship.
Most recently, the nominee served as solicitor general for a little over a year. But her short tenure there has not been without controversy. In her first appellate argument, Miss Kagan told the court that the speech and press guarantees in the First Amendment would allow the federal government to ban the publication of pamphlets discussing political issues before an election. I would remind my colleagues that the American Revolution was, in no small part, spurred by just such political pamphlets, Thomas Payne's Common Sense. To suggest that the government now has the power to suppress that kind of speech is breathtaking.
Also as solicitor general, Miss Kagan approved the filing of a brief to the Supreme Court, asking that it strike down provisions of the legal Arizona Workers' Act, which suspends or revokes business licenses of corporations which knowingly hire illegal immigrants, even though federal law expressly prohibits such hiring. She did this even after the liberal ninth circuit had upheld the law. Now this is an important legal issue that the court will resolve during the next term.
And is despite promises to this committee that she would vigorously defend the Congress's "don't ask, don't tell" policy for the military if it were challenged in court, the actions she has taken, as solicitor general, do appear to have deliberately and unnecessarily placed that law in jeopardy.
Importantly, throughout her career, Miss Kagan has associated herself with well-known activists judges who have used their power to redefine the meaning of words of our Constitution and laws in ways that, not surprisingly, have the result of advancing that judge's preferred social policies and agendas. She clerked for Judge (INAUDIBLE) Justice Marshall, each well-known activist, and she has called Israeli Judge Iran Barack (ph), who has been described as the most activist judge in the wormed, as her hero. These judges really don't deny their activists' ideas, they advocate it, and they openly criticize the idea that a judge is merely a neutral umpire.
Few would dispute this record tells us much of about the nominee. In many respects, Miss Kagan's career has been consumed more by politics than law. And this does worry many Americans.
In the wake of one of the largest expansions of government power in history, many Americans are worried about Washington's disregard for limits on its power. Americans know that our exceptional Constitution was written to ensure that our federal government is one of limited, separated powers and part of a federal/state system with individual rights reserved to our free people.
But we've watched as the president and Congress have purchased ownership shares in banks, nationalized car companies, seized control of the student loan industry, taken over large sectors of our nation's health care system, and burdened generations of Americans with crippling debt. So this all sounds a lot like the progressive philosophy which became fashionable among elite intellectuals a century ago and which is now seeing a revival. They saw the Constitution, and the now dated impediment to their expensive vision for a new social and political order in America. Even today, President Obama advocates a judicial philosophy that calls on judges to base their decisions on empathy and their broader vision of what America should be. He suggests that his nominee shares those views.
Our legal system does not allow such an approach. Americans want a judge that will be a check on government overreach, not a rubber stamp. No individual nominated by a president of either party should be confirmed as a judge if he or she does not understand that the judge's role is to fairly settle disputes of law and not set policy for the nation. Broad affirmations of fidelity to law during these hearings will not settle the question, one's record also speaks loudly.
Indeed, it's easy to pledge fidelity to law when you believe you can change its meaning later if you become a judge. Miss Kagan has called previous confirmation hearings "vapid and hollow." Some probably have been. And have argued that nominees for a lifetime position owe a greater degree of candor and openness to the committee. I agree with that. I agree that candor is need and look forward to this good exchange this week.
Mr. Chairman.
LEAHY: Thank you very much. We will go next to Senator Kohl, and then we'll go to Senator Hatch.
Senator Kohl.
SEN. HERB KOHL (D), WISCONSIN: Thank you, Mr. Chairman. KING: You're listening to an important statement from the ranking Republican, Jeff Sessions. He is the Republican of Alabama. This is the Elena Kagan confirmation hearing. You see her sitting, listening patiently as the senators give their opening statements. A very important opening statement from the lead Republican, laying out a bruising case. Very polite, but a bruising case against Elena Kagan, saying she's more concerned with politics than the law, tracing her Democratic heritage back to her working in the Dukakis campaign.
And as we go around the table here, Ed Rollins, trying to make the suggestion that this is somebody President Obama wants on the Supreme Court because he is an expansionist, activist president and he wants someone on the bench, in Senator Session's view, this is the lead Republican argument, to essentially back up, whether it's expanding health care or expanding government power in other areas, that he is putting her there for a purpose.
ED ROLLINS, CNN CONTRIBUTOR: Well, I think there's no question that was the purpose of that speech, and obviously a more aggressive speech than the one he gave at the opening of Justice Sotomayor. You know, we're now into the partisan season, and I think that you'll find the Democrats equally as aggressive as they try and paint the (INAUDIBLE) out of, as I said earlier, protecting business and what have you. It's -- these are the slogans of the campaign. And, obviously, these are the first rounds.
KING: And yet, Donna, when the Democrats had the first chance to frame the debate, Patrick Leahy, the chairman, he was very complimentary of her, but he also digressed into after saying the court is there to be independent, to criticism of the Bush v Gore decision, which was 10 years ago, and a recent decision on campaign finance. Much more about a criticism of the Republicans on the court now, the conservative majority on the court now, than a defense of Elena Kagan.
DONNA BRAZILE, CNN CONTRIBUTOR: Well, I thought he tried to do three things. One, pay deference to his colleague, Mr. Byrd. And then went on to talk about Miss Kagan's background, her history. But he also gave us a history of the court in the last 40 years. And I thought that was important in setting up the comments that he made about the activists, conservatives, that have altered American life in many ways, campaign finance reform, and none of us will forget the Bush v Gore decision. And Jeffrey is a better expert at that than I am. I'm more emotional about it than I am rational about that decision.
But, look, this is going to be a very partisan round, the opening rounds. The conversation that sets the frame and it includes Senator Session I thought outlined what the conservatives will be trying to dig up, and also spell out as they try to define Miss Kagan as being out of the mainstream. She's not. She is a moderate. She's a pragmatist.
KING: But Democrats have a lot of questions, too, Gloria. Do they put them in their back pocket if they see the Republicans come out in such a bruising way? Do they feel we have to rally around the flag, the liberals do? If the Republicans are going to be so tough, maybe we should be a little more gentle.
GLORIA BORGER, CNN SENIOR POLITICAL ANALYST: Liberals have questions whether about the extent of executive power. They're not quite sure where she is on the issue of abortion. But Senator Sessions was kind of stunning today. I mean, he hit every single note very, very -- in a very, very tough way, particularly when he talked about the military recruitment issue at Harvard when she was there, the dean at the law school, and military recruiters were not allowed on campus. He actually said that she demeaned our soldiers.
Those are very, very tough words. And then he also took on her and Washington and made her Washington and said, you know, people are concerned about Washington's disregard for the limits of its power. So he said, OK, if you want somebody, an activist judge who wants to give Washington more power, she's your justice.
KING: That's the southern gentleman tough, right, Candy?
CANDY CROWLEY, HOST, "STATE OF THE UNION": Yes, exactly. Exactly.
BORGER: Very tough. (INAUDIBLE) gentlemanly.
CROWLEY: I mean, but I think, you know, basically, let's remember a -- timing is everything. We've already noted that we are much closer to an election than we were with Sotomayor hearings. And the timing of these -- these are -- these people know their way around a television camera. They understand how the networks work. And they understand that this is their best shot at getting their case out there, is their ranking Republican guy. And he laid it out there with a real edge to it. And that's what - that's his job.
VICTORIA TOENSING, FORMER JUSTICE DEPT. ATTORNEY: Jeff Sessions' most interesting political point, though, was, you are one vote away from losing gun rights. That -- that was really a message to the masses -- watch it.
JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: And what's interesting is how they picked the issues they want to focus on. As Victoria said, Republicans are going to talk a lot about gun rights, because they think that's a winning issue for them. The Democrats, like Patrick Leahy, are going to talk about the Citizens United case, which was the case that said earlier this year that corporations and labor unions have free speech rights to spend as much as they want in elections. A very unpopular decision. He is going -- Leahy tried to make that a Republican decision, and that's how they're going to try to frame these things.
CROWLEY: Hang on. I want to ask all of you to hang on. They -- we will continue to cover these hearings, obviously. We've got to take a quick break. But we'll be back.
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