Elena Kagan Confirmation Hearing Transcript (Wake Me When It's Over)


Andrew Cohen

Legal Analyst
There are likely to be few secrets left by the time the blue-suit kabuki dance before the Senate Judiciary Committee starts up again this summer over the nomination of Solicitor General Elena Kagan to the U.S. Supreme Court.

She's a familiar figure in Establishment Washington. Like her immediate predecessors, she'll almost certainly be the brightest person in the room during her hearing. And both Democrats and Republicans appreciate that the president's choice to replace retiring Justice John Paul Stevens, from their own perspectives, could have been far worse.

In fact, having endured the last three confirmation hearings over the past 55 months or so, it's quite easy to predict right now what many of the committee members' questions will be and how nominee Kagan will likely respond to them. So here, without further ado, are 10 likely questions and the nominee's anticipated response to them. You can check back after the confirmation to see how close I came with my predictions. But trust me, I'll come close.

Senator: Some of my constituents are concerned because you don't come from a judicial background; you've never before put on a robe, written opinions or decided cases. Won't that put you at a disadvantage right from the start?

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Kagan: I believe I am a quick study, Senator. I have spent the last 15 months as solicitor general of the United States. In that capacity, I have been immersed in the inner workings of the court. Before that, when I was herding cats as dean of the Harvard Law School, I was required to make weighty decisions. And for more than 25 years, I have immersed myself in constitutional legal principles and doctrines. The last person to come to the court without having just served on a federal appeals court first was the late Chief Justice William Rehnquist. And he did pretty well for himself on the court, I am sure you will agree.

Senator: But what about all those cases from which you'll be forced to recuse yourself because of your work as solicitor general?

Kagan: Justices Thurgood Marshall and Robert Jackson, both of whom ascended to the court from the solicitor general's post, faced this dilemma as well. I will in all likelihood have to recuse myself from some cases early on in my tenure should I be confirmed to the court because I worked on them as an advocate for the government. I do not apologize for this but think it's absolutely essential to ensuring integrity and fairness in the judicial process. Within a term or two, of course, this issue will be moot.

Senator: Despite your years of public service, General Kagan, you have left very few traces in public about what you really think about the most contentious issues of our time. How could someone so deeply involved in public and academic service fail so thoroughly to participate publicly in contemporary legal debate?

Kagan: Well, I certainly didn't do it on purpose, Senator, if that's what you are implying. As solicitor general I was required by law to argue on behalf of a client, the government of the United States, in a way that did not always mesh completely with my own personal views. In my earlier government work, in the Office of White House counsel, I had as a client the president of the United States, with whom I didn't always agree. Perhaps had the Senate voted on me for a federal appeals court judgeship back in 1992, I would by this time have a long and illustrious record for you to sift through today. But my life did not take that path.

Senator: Do you believe in a constitutional right to privacy?

Kagan: Thank you for asking that question. I believe there is a right of privacy. The court has recognized it over and over again in the Constitution. And let me pre-empt your next question by saying this: I believe that the court's decision in Planned Parenthood v. Casey reaffirmed the court's ruling in Roe v. Wade, settling in place the law with respect to the right to an abortion. I will not announce here whether I personally agree or disagree with that except to say I now recognize those precedents as settled law.

Senator: Do you believe in the right to same-sex marriage?

Kagan: As I have said before, the Supreme Court has not recognized a constitutional right to same-sex marriage. Obviously, it's an issue that is evolving legally at both a state and federal level. And because it's a topic that may come before me as a justice should I be confirmed, I think the wisest course for me now is to decline to detail my views.

Senator: You've mentioned that in some circumstances U.S. courts should look to foreign law. What did you mean by that? And what are the circumstances in which you'd look to foreign law and where in the Constitution is that permitted?

Kagan: I think first it's important to understand that the circumstances are rare. Justice Anthony Kennedy, who would be my colleague if I am confirmed, has written extensively on this point. From my view, as an academic, I believe there is always more to learn from reading about how other people in similar situations handle certain legal problems. To ignore such wisdom is to deprive oneself of all the tools of education and enlightenment. I understand that the Constitution is an American document which must be interpreted using American law and precedent.

Senator: Explain your position against military recruitment at the Harvard Law School. To me it shows a reckless disregard for both the Solomon Amendment, which prohibits federal funding for schools which do not admit military recruiters, and Supreme Court precedent.

Kagan: Thank you for that question, Senator, because it gives me the chance to explain myself a bit more. In that situation, I tried to be all things to all people. I tried to respect the recruitment effort by allowing the military access to the students. And I tried to respect the wishes of many of my constituents not to have such a presence on campus. As dean of the law school, I had the discretion to try to engineer such a result and I admit that I was aggressive in pursuing that goal. I do not apologize for this. But I do recognize how different my new role would be. No longer an advocate or executive interested in the fortunes of one client or one employer, I recognize my role would be as an honest tribune of the law and I would take that job very seriously.

Senator: For too many years now, our courts have been populated with activist judges who want to make law rather than merely interpret it. Most of these judges are nominated by presidents of the party of the current president who nominated you. Why should I think you aren't going to be an activist judge?

Kagan: I am glad you asked that question, Senator, because it allows me to remind you that both the late Chief Justice William Rehnquist and former Justice Sandra Day O'Connor, the first woman ever on the court nearly three decades ago, derided as meaningless the term "judicial activism." The fact of the matter is that every time a judge makes a decision he or she is "acting," regardless of the political consequences of the decision. No judge wants to make law. Every judge, however, has to fill in the ambiguities left by legislators, including the first legislators, the Founding Fathers, who left us with a brilliant but slightly flawed Constitution. I will follow the law wherever it leads me.

Senator: Fifteen years ago, in a scholarly publication, you called the judicial nomination process "a vapid and hollow charade." What caused you to make that statement then and do you regret and retract it now?

Kagan: At the time, without ever dreaming that I would be sitting here today, I thought it was appropriate to draw attention to the worst parts of the judicial nomination process. And I think many people would agree with me from all sides of the political spectrum that these hearings can be frustrating to watch and that the process could be streamlined to allow judicial vacancies to be filled more quickly and efficiently. Today, naturally, from my vantage point, I understand better that the Senate's "advise and consent" role goes way beyond what people see through these hearings.

Senator: You have publicly discussed some of the good things that might come to the American people by letting cameras into Supreme Court oral arguments. Are you ready now to say you'll support such initiatives?

Kagan: It's true, Senator Specter. Last summer, I did say: "If cameras were in the courtroom, the American public would see an amazing and extraordinary event . . . I think if you put the cameras in the courtroom, people would say "wow." They would see an institution of their government I think working at a really high level." I believe that to be true today. But I do not believe it is my place, if confirmed, as the junior justice, to suggest any particular course of conduct to my new colleagues about such a highly charged issue. I'd prefer to hear what they say first.