tv C-SPAN Weekend CSPAN July 4, 2010 10:30am-1:00pm EDT
floor? >> well, senator bingaman is a pragmatist and he is a master of the art of the possible and he says there has to be a bill by the end of july. i think they leave for august recess on august 6. but that last week is going to be for the kagen confirmation so there needs to be something in the next few weeks or there won't be anything. >> and you pressed him on if it doesn't happen within, before you -- you both did -- before the end of july, then what? >> it could really be the last best chance, the time line of the next couple of weeks. because as the senator himself pointed out, there will be more republican seats in the next congress. and so, you know, people are saying this -- if it's not possible to move something like this with this congress and this president, and the momentum provided by this moment with this environmental disaster, if all of those fourses together aren't enough
guest: the government would put a cap on the amount of emissions that utilities could permit. host: what industry are we talking about, cold? -- coal? guest: nuclear companies would benefit because they would have a low carbon source of wind and solar companies that provide that kind of power. the companies that will be heard would be those that are most reliant on coal. over time, the government reduce the amount of permits, they would take them away like musical chairs. over time, you have to reduce the amount of emissions you emit or you would have to pay someone
else to reduce the emissions for you. you are still achieving the same environmental goal, which is lower emissions, but you are letting the market decide how best to achieve that goal. previous bills, including the house bill, would have done this across multiple companies. this bill, the one democrats are considering will be very narrow. it is not clear it will pass. host: many industries, economies, want in economy-wide cap and trade system so they know, they have certainty about regulations. under current law, does that mean that the epa could step in? if it is only utility, epa could step in and say they will regulate transportation. guest: the epa is already moving to regulate greenhouse gas emissions. they finalize regulations covering greenhouse gas emissions from automobiles. they have announced plans to go
forward with regulations that would cover power plants, potentially other industries. they are moving in that direction. those regulations are likely to be more costly because the epa -- they are not the experts on which technology is the best. they are going to say, you have got to meet these emissions reductions and it will be much more expensive. host: could you walk through what in energy-only bill looks like? it sounds somewhat like it will not be able to do cap and trade on utilities, not even be able to do that, what does an energy- only bill look like? guest: senator jeff bingaman's bill which has bipartisan support has a renewable electricity standard. it mandates that 40% of all the nation's electricity be generated -- 14% of all the nation's electricity generated by wind and sold there.
that is significant energy policy. today, less than 5% of our electricity is generated from that source. that is a really big scale that's all. -- scale- up/ it overalls the national grid and put in place new transmission systems that are better suited for renewable electricity. it would put power lines in place from where wind and solar are generated. that is a significant step forward in energy policy. it creates a new agency that would give federal incentives for development of advanced, a new, clean energy technology. one of the really contentious pieces of that bill is that, when it was passed a year ago, it included new offshore drilling in the gulf of mexico. so that brought in republican by in. that will have to go. host:n it sounds like people
interested in this should be watching and reading senator jeff bingaman's bill and not focusing on the bill that was put out by senator kerry and senator lieberman. guest: it is almost certain that whatever comes through in the next couple weeks will be written by senator jeff bingaman, or whether it is energy-only or utility-only or the bill that would overhaul offshore drilling, and that is the most popular. host: thank you for being with us on newsmakers. we appreciate it. >> today on "book tv," bill bennett, live and in death. the former education secretary has written more than 20 books -- live and in depth. starting today at noon, eastern. it is a part of the holiday weekend.
the rest of the schedule at booktv.org. >> one of the best quotes about money and politics is that is about water that finds home. >> he won the pulitzer prize for his reporting by jack abramoff and tom delay. the daschle investigative correspondent for "the washington post" on c-span's "q&a". >> the senate judiciary committee held a confirmation for supreme court nominee elena kagan. next, we will show you portions from three days of that hearing, beginning with opening statements from the chairman and the ranking member. as well as from the nominee. this is about 40 minutes. host: [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2010]
>> good afternoon. welcome. everybody here, just so you know the procedure, senator sessions and i have discussed this, we are going to recognize senators and order of seniority, doing the usual back and forth. the senator sessions and i will each give an opening statement and following those, take turns back and forth. i would urge the senators to stay.
we will have to stay within the 10 minutes, just simply to keep on schedule. welcome to our committee room. there are somewhat more people here than usual. let me begin. one of the things that will change our schedule this week is the death of senator byrd. all of us, both republicans and democratic senators, are saddened by his death. no senator cared more about the constitution and was a more effective defender of our constitutional governor then the senior senator from west virginia. he was the fierce defender of the senate's constitutional role and prerogatives. i do not know how many times we saw senator byrd called up a copy of the constitution. -- hold up the constitution.
the difference is that he could put it back in his pocket into recited verbatim, the whole constitution. for a number of votes cast, i know and as a mentor and friend. he served for time on this committee. i was honored to sit near him on the senate floor and engage in many a discussion about the senate, its rolls, the issue of the moment, or about our families. it was a privilege to stand against him to fight. -- about the war in iraq. he was a self educated man. he learned much brought his life. senator byrd was such an extraordinary man, a man of grit and determination. he loved his family. he drew strength from his deep faith, who took to heart his oath to support and defend the
constitution. the arc of his career in public service is an inspiration to all and should inspire generations of americans. now, on the issue before us today, there have beeen 111 justices on the supreme court of t. only three have been women. if she is confirmed, the solicitor general kagan will bring the supreme court to historical high water mark. elena kagan are replaced 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 the great supreme court justice justice thurgood marshall.
and i appreciate seeing justice marshall's son in the audience here today. she worked in private practice and briefly for then senator biden on this committee. she taught law at him go of the greatest law schools. she served as dean of harvard law school and is now the solicitor general of the united states, sometimes referred to as the tent justice. i believe we are better country for the path of excellent elena kagan has taken. her career as a path not 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 recognizes that the guarantees and the 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 in the rule of law is guiding principles. yet flexible enough to sustain a young nation that was destined to grow into the greatest and 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 of thousands to end enslavement of african-americans and include as those born in naturalized in united states. which transformed the constitution into one that more fully embraced equal rights and human dignity. the country, and our democracy was stronger for it. the job is not complete.
it was halfway through the last century that racial discrimination was dealt a blow with the supreme court in the modern landmark case of brown versus board of education. congress passed the civil rights act of 1964 and the voting rights act of 1965. america began to provide a full measure of equality to those who were held back for so long because of the color of their skin. a path to a more perfect union was included, also included a rejection it 75 years ago of conservative judicial activism but by the supreme court and our establishing a social safety net for all americans. it began with a long child labor and guaranteeing a minimum wage, social security, medicare, medicaid, congress insured that growing old no longer means growing poor.
and no longer means being without medical care. progress continues today. are better for it. the 100 members of the senate stand here in the shoes of more than 300 million americans as we discharge our constitutional duty in 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. 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 are 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. now, i reject the ideological litmus tests from the right or the left. i expect judges to look to the legislative intent of our losaw, 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 judge ment. it should appreciate the proper role of the courts and our democracy, should consider the consequences of decisions on the fundamental purposes of the law
and the lives -- in the lives of americans. i will urge solicitor general kagan publicly what i have urged per privately to be open, to be responsive, to share with us and even more portly with the american people per judicial philosophy, but also to assure us of her judicial independence from either the right or left. i believe a fair amount of people will find it in a judicial philosophy well within the mainstream. gal main stream. i welcome questions but urge sen sto to senators on both sides to be fair. no one should presume that this intelligent woman has excelled during every part of her distinguished career lks independence. it is essential that we
understand that as judges, they are not members of any administration. the courts are not part of any political party or interest groups and our judges should not be partisans. that is why the supreme court's intervention in the 2000 presidential eliection in bush versus gore was so jarring and why it shook in many people's minds the credibility of the court. five conservative justices rejected the court's own precedent, and the bipartisan law enacted by congress. rejected 100 years of legal development in order to open the door for massive corporate spending. 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. in my own state of vermont the 14th state of the june yunion d vote to join the union until the bill of rights was ratified. we are cautious in vermont. we understand the importance that the amendments have had in expanding individual liberties have had over the past 20 years. it should be the kind of independent justice who keep faith with these principles and keep faith with the words that are enscribed over the front doors to the supreme court. "equal justice under law". i'll put the rest of my statement in the record.
senator? >> thank you, mr. chairman. i would like to join you in recognizing the special moment of the loss of senator byrd who is such an institution here. he believed they were two great senates, the roman and american he wanted ours to be the greatest ever. and i remember one day he gave a speech on friday morning in which he complained about the text books and the failure to stin distinguish between a republic and a democracy. he called them touchy feely twaddle but he loved the constitution and loved our country and loved clarity of thought and we will certainly miss him. miss kagan, let me welcome you here today. this nomination is certainly a proud day for you and your family and 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 nominaon. republicans are committeed to conducting this hearing in a respectful manner. serious questions will be asked, miss kagan will be given ample opportunity to respond. she certainly has numerous talents and good qualities but there are concerns about this nomination. she has less al legal experience of any nominee in at least 50 years. it is 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 the jury.
while academia has value there is no substitute i think for being in the harness of the law, handling real cases over a period of years and what the record does reveal is a more extensive background mixed with law. her college thesetthesis affirm activists tendencies of the court but complained that they could have done a better job of justifies their act varieivism. 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-ginsberg. and now one of the most active
members of the supreme court. i know you will join with me in expressing our sympathy to justice ginsberg on the loss of her husband. work i working in the clinton white house, doing as she described it, mostly policy work. policy is quite difference than intense legal work. for example, in the office of legal council or 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 mcdonald case shows the personal right of every american who 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 bl k
block -- abortions. perhaps she was the key person who convinced president obama to cha who convinced president clinton to change his mind on that precedure.clinton to change his mind on that precedure. her actions punished the military and defeened our soldiers as they fought in two wars over seas. as someone who feels the burden of sending young men and women into harm's way, to ensure military resucruiters were treae fairly, i can't take this issue lightly. dean kagan also joined with three over law school deans to write a letter in opposition to senator graham's legislation for
determining who was an enemy combatant for the war on terror. she most recently, the nominee served as solicitor general for little over a year. but her shortenure there has not been without controversy. in her first appellate argument, miss kagan told the court that the first amendment would allow the federal government of banniban banning pam plephlets -- thomas pain's common sense. to suggest that the government now has the power to spuppress that kind of speech is breath taking. miss kagan approved a filing of
a brief to theupreme court asking that it strike down the provisions of the arizona act which limits companies from knowingly hiring illegal immigrants she did this after the 9th circuit had up held the law. this is an important legal issue which the court will resolve during the next term. despite comments to the committee that she would vigorousry ly defend the don't don't tell policy if challenged in court, the action she has taken as solicitor general to place that law in jeopardy. throughout her career she has associated herself with well-known activist judges who have used their power to
redefine the meaning of our constitution and have the result of advancing that judge's preferred social policies. and agendas. she clerked for justice marshall, at least well-known activists and she has called israeli judge who has been described as the most activist judge in the world as her hero. these judges really don't deny their activist ideas, they advocate it. and they openly criticize the idea that a judge is merely that neutral umpire. this recordtells us much about the nominee. in many respects, ms. 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 our federal government is one of limited, separated powers and part of a federal state system with individual rights referred to our free people. but we've watched as the president and congress have purchased ownership shares in banks, nationazed car companies, seized ctrol 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 as an outdated impediment to their expansive vision to a new social and political order in america. even today president obama advocates 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 sele disputes of law and not set policy for the nation. broad affirmatio of fidelity to law during these hearings will not settle the question. one's record also speaks loudly. it's easy to pledge fidelity to law when you believe you can change its meaning later if you become a judge.
ms. kagan has called previous confirmation hearings vapid and hollow. some probably have been. and hazarded that nominees for a lifetime position owe a greater someone to the supreme court and that person will affect 300 million americans, but only 100 of us get to vote. that process will begin now. solicitor general, police please stand and raise your right hand. do you solemnly swear that the testimony you are about to give in this matter shall be the truth, the whole truth and nothing, but the truth so help you god? >> i do. >> thank you. please be seated. solicitor general kagan, i know you have an opening statement and now the floor is yours. >> thank you very much, mr. chairman, senator sessions and members of the committee. i would like to thank senators
kerry and brown for those generous introductions. i also want to thank the president again for nominating me to this position. i'm honored and humbled by his confidence. . let me also thank all the members of the committee as well as many other senators for meeting with me in these last several weeks. i've discovered that they call these courtesy visits for a reason. each of you has been unfailingly gracious and considerate. i know that we gather here on a day of sorrow for all of you, for this body and for our nation with the passing of senator byrd. i did not know him personally as all of you did, but i certainly knew of his great love for this institution, his faithful service to the people of his state and his abiding reverence
for our constitutioo, a copy of which he carried with him every day. a moving reminder to each of us who serves in government of the ideals we must seek to fulfill. all of you and all of senator birrd's family and friends are n my thoughts and prayers at this time. i would like to begin by thanking my family, friends and students who are here with me today. i thank them for all the support they've given me during this process and throughout my life. it's really wonderful to have so many of them behind me. i said when the president nominated me that the two people missing were my parents, and i feel that deeply again today. my father was as generous and
public spirited a person as i've ever known, and my mother sets a standard for determination, courage and commitment to learning. my parents lived the american dream. they grew up in immigrant communities. my mother didn't speak a word of english until she went to school, but she became a legendary teacher and my father, a valued lawyer, and they taught me and my two brothers, both high school teachers, that this is the greatest of all countries because of the freedoms and opportunities it offers its people. i know that they would have felt that today, and i pray that they would have been proud of what they did in raising me and my brothe brothers. to be nominated to the supreme
court is an honor of a lifetime. i'm only sorry that if confirmed i won't have the privilege of serving there with justice john paul stephens. his integrity, humility and independence, his deep devotion to the court and his profound commitment to the rule of law, all these qualities are models for everyone who wears or hopes to wear a judge's robe. if given this honor, i hope i will approach each case with his trademark care and consideration. that means listening to each party with a mind as open as his to learning and persuasion and striving as conscientiously as he has to render impartial justice. i owe a debt of gratitude to two other living justices. sandra day o'connor and ruth
bader ginsburg paved the way for me and so many other women in my generation. their pioneering lives have created boundless possibilities for women in the law. i thank them for their inspiration, and also for the personal kindnesses they have shown me and my heart goes out to justice ginsburg and her family today. everyone who ever met marty ginsburg was enriched by his incredible warmth and humor and generosity, and i'm deeply saddened by his passing. mr. chairman, in law school i had the good fortune to lead has a kind of motto spoken each year at graduation. we tell the new graduates that they are ready to enter a profession devoted to those wise restraints that make us free.
that phrase has always captured for me the way law and the rule of law mattered. what the rule of law does is nothing less than to secure for each of us what our constitution calls the blessings of liberty, those rights and freedoms, that promise of equality that have defined this nation since its founding and what the supreme court does is to safeguard the rule of law through a commitment to even handedness, principle and restraint. my first real exposure to the court came almost a quarter century ago when i began my clerkship with justice thurgood marshall. justice marshall reveered the court and for a simple reason.
in his life, in his great struggle for racial justice, the supreme court stood as a part of government that was most open to every american and that most often fulfilled our constitution's promise of treating all persons with equal respect, equal care and equal attention. the idea is engraved on the very face of the supreme court's building. equal justice under law. it means that everyone who comes before the court, regardless of wealth or power or station receives the same process and the same protections. what this commands of justice is even handedness and impartiality. what it promises is nothing less than a fair shake for every
american. i've seen that promise up close during my tenure as solicitor general. in that job, i served as our government's chief lawyer before the supreme court arguing cases on issues ranging from campaign finance to criminal law to national security, and i do mean argue. 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. no matter who the lawyer or who the client, the court relentlessly hones in on the merits of every claim in its support of law and precedent, and because this is so, i always come away from my arguments at the court with a renewed appreciation of the commitment
of each justice for reason and principle. a commitment that defines what it means to live in a nation under law. for these reasons the supreme court is a wondrous institution. the time i spent in the other branches of government remind me that it must also be a modest one, properly deferential to the decisions of the american people and their elected representat e representativ representatives. what i most took away is simple admiration for the democratic process. that process is often messy and frustrating, but the people of this country have great wisdom and their representatives work hard to protect their interests. the supreme court, of course, has the responsiblility 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. i am grateful, i am grateful beyond measure for the time i spent in public service, but the joy of my life has been to teach thousands of students about the law and to have had the sense to realize that they had much to teach me. i've let a school whose faculty and students examine and discuss and debate every aspect of our law and legal system, and what i''e learned most is that no one has a monopoly on truth or wisdom. i've learned that we make progress by listening to each other across every apparent, political or ideological divide. i've learned that we come closest to getting things right
when we approach every american and every issue with an open mind. and i've learned the value of a habit justice stephens wrote about of understanding before disagreeing. i will make no pledges this week other than this one that if confirmed i will remember and abide by all these lessons. i will listen hard to every party before the court and to each of my colleagues. 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. that is what i owe to the legacy i share with so many americans. my grandparents came to this country in search of a freer and better life for themselves and their families. they wanted to escape bigotry and oppression, to worship as they pleased and work as hard as they were able. they found in this country and they passed on to their children and their children's children the blessings of liberty. those lessons are rooted in this country's constitution and its historic commitment to the rule of law. i know that to sit on our nation's highest court is to be a trustee of that inheritance, and if i have the honor to be confirmed, i will do all i can
to help preserv >> for more on the confirmation process, go to our web site where you can watch the confirmation hearings, previous c-span appearances by the nominee, elena kagan, as well as past supreme court nominees. you also have access to additional documents, reference wins, remarks by senators and more at c-span.org/kagan. to purchase copies of the dvd, go to c-span.org where you can find a program you want to purchase and click the by now button. >> c-span is now available in over 100 million homes, bringing you a direct link to public
affairs, politics, history and nonfiction books as a public service. created by america's cable companies. >> we move on now to date to of confirmation hearings with questions from the committee chairman and ranking members and senators orrin hatch, arlen specter, and lindsay gramm. good morning, everyone. today -- today justice john paul stevens' resignation from the supreme court takes effect. i appreciated your recognition of his service to the country in your opening statements. general kagan -- he was the
first person i -- the first supreme court nomination i was able to vote on. as a very young and very junior member of the united states senate. but you spoke eloquently about the rule of law securing the blessings of liberty about the constitution. and about the respect of all three branches of our democratic government. and i appreciate your pledge to look at every case modestly in connection with principal aiple with accordance of law. so beginning our questioning, i talked about this, each senator each senator will have a 13-minute round and we'll go alternating back and forth. so i will begin the first round.
so in general, kagan, you spoke yesterday about your parents, children of immigrants, person of families to attend college. i was struck when you said that your mother didn't learn english until getting ready to go to school. the same with my mother and my wife. before we get the questions about the important role that the supreme court plays n american lives, you wanted to share some additional thoughts about the values your parents taught you to put you on the path of teaching and law and public service because that may give us a better idea of who you are. >> oh, gosh, chairman leahy, thank you for giving me that opportunity. that's a wonderful opportunity. my parents, of course, were -- they were loving, wonderful parents.
but they were also people who worked hard for their communities. and i think that's what i most took away from them is the value of is serving the communities that you live in, serving other people. we got a little bit from each side. my father, as i said, was a lawyer. he was a lawyer for ordinary people. he was the kind of lawyer who, if you needed a will drawn up, he would draw up your will. and if you had problems on your taxes, he would help you with that. then one of the things that he did quite a lot of is he helped tenants in new york city, the neighborhood that we live in was in the process of some change as i was growing up. and many people were sort of being forced out of their homes. and he made it part of his work to ensure that either they could stay in their homes or at least if they did need to move to
another neighborhood, they could -- they could take something with them to establish a good life there. and he was also a person who spent an enormous amount of time thinking about that neighborhood. he was involved in lots of community boards and citizen groups of various kinds thinking about environmental projects and land use projects. he really treated that neighborhood of new york city as just, you know, he -- he just so much cared about the welfare of it and poured his heart and soul into trying to improve it. and i think what i learned from him was just the value of public service, was just the value of doing what you can in your neighborhood or in your nation or wherever you can find that opportunity to -- to help other people. and to serve the nation. so that's what i most took away from my father. my -- my mother was -- she -- i
said yesterday, she was the kind of legendary teacher. she died only a couple of years ago. and my brothers and i, we expected a small funeeal. we didn't expect many people to attend. i don't have a large family. instead, tons and tons of people showed up. we couldn't figure out who they all were. they're middle aged, 30-year-olds, 40-year-olds, whatever. they had had my mother as a sixth grade teacher decades ago. they were people who just wanted to come and pay their respects because they kept on coming up to me and my brothers and saying, at the age of 12, your mother taught me that i could do anything. she was really demanding. she was a really tough teacher. it was not -- you didn't slide by in mrs. kagan's class. but she got the most out of people. and she changed people's lives
because of that. % and if i look at my own career in this kind of strange way, not land, but in a strange way, part of my life is my father and part is my mother. part of my life has been in public service. i've been blessed with the opportunities i've had to work in government and to serve this nation. and then part of my life is teaching, which i take enormous pleasure and joy from. i mean the -- i'm looking over your right shoulder -- your left shoulder right on my side. and there's a student of mine right there. and maybe there's some other students that are around the room. and it's kind of a great thing. >> these -- these things that i -- i mean, each one of us can speak about our parents and what they brought to us.
seems to me they gave you pretty strong values. that speaks about who you are as a person. now we go to some of your legal abilities and criticize your background and your legalizing -- even going to what did you write on college papers. the chairman of the republican national committee criticizing you last month for agreeing with justice thurgood marshall's observation of the constitution as originally drafted was imperfect. the criticism surprised me because everything you read about the founders, they knew that the -- they would lay down something that would not cover any foreseeable thing? how could they possibly foresee what the country is today? they wrote in broad terms. they couldn't foresee every challenge. what's your response to this criticism of you that's made
because you agreed with justice marshall. how would you describe the constitution to you as amended the way it was drafted. >> the framers were incredibly wise men. if we always remember that, we'll do pretty well. because part of their wisdom was that they wrote a constitution for the ages. this was very much in their mind, this was part of their consciousness. even that phrase that i quoted yesterday from the preamble of the constitution, they said that the constitution was to secure blessings of liberty. i didn't quote the next part of the stage. he said lessons of liberty for themselves and their posterity. they were looking towards the future. they were looking generations and generations and generations ahead. and knowing that they were writing a constitution for all that period of time.
and that life -- and that circumstances and that the world would change. just as it had changed in their own lives, very dramatically. so they knew all about change. and they wrote a constitution, i think, that has all kinds of provisions in it. so there's some that are very specific provisions. it just says what you're supposed to do and how things are supposed to work. so it says to be a senator, you have to be 30 years old. and -- and that just means that you have to be 30 years old. and it doesn't matter if people mature earlier. it doesn't matter if people's life spans change. you just have to be 30 years old. because that's what wrote. and that's what they meant. and that's what we should do. but there are a range of other kinds of provisions in the constitution of a much more general kind. and -- and those provisions were meant to be interpreted over time, to be applied to new
situations and new factual contexts. so the fourth amendment is a great example of this. it says there shall be no unreasonable searches and seizures. well, what's unreasonable? that's the question. the framers could have given like a whole primer on police practices, you know? which searches were reasonable and which weren't reasonable and lots of different rules for saying that. but they didn't do that. they didn't do that because of the incredible wisdom they had. the world is about to change and they didn't live with bomb-sniffing dogs and heat detectors and -- >> computers. >> and computers. all these questions that judges, courts, everybody is struggling with. police in the fourth amendment context. and i think that -- i think that they laid down -- sometimes they laid down very specific rules. sometimes they laid down broad principles.
either way, they applied what they say, what they meant to do. and so, in that sense, we are all originalists. >> and we also made changes. i mean, the -- the bill of rights, my own state of vermont didn't join the union until they saw that the bill of rights was going to be ratified. they did the -- the 19th amendment, expansion and votes for women. the 26th amendment, the -- allowing 18-year-olds to go. we see some major changes over the years. yesterday i talked about how the supreme court interprets plessi versus ferguson. overruled by brown versus board of education. same constitution. but if we -- people realize how changes are in society. i -- i can't imagine anybody saying we should go back to plessi versus ferguson. because that was -- that was decided first. i think -- i do recall you being
a special counsel with senator biden on this committee during the supreme court confirmation hearing. i was here -- i was a little further down the -- down the road at the time. but you wrote a law review article and book review after in which you argued that these proceedings should be occasions to engage in the meaningful discussion of legal issues. now, you set the standard. you probably reread those words. how are they -- >> many times. >> how are you -- i'll bet. i'll bet. as have i. and i guarantee you every single member of this committee. >> you know what? they've been read to me many times too. >> and probably will again. how will you live up to that standard? >> senator leahy, before i answer that question, may i say a little bit more about what you started with, about constitutional changes, just to show my commitment to being open, all right.
>> okay. go ahead. >> you said something that sort of triggered a thought in me. i just wanted to -- as you said, there are all these many changes that have happened to the constitution. and i think it's important to realize that those changes do come in sort of two varieties. one is the formal amendment process. and i think it was senator cornyn yesterday who had talked about the formal amendment process. that's tremendously important. when thurgood marshall said this was the constitution. they counted slaves at 3/5 of a human beinging, didn't do anything about that original sin of our country, and the 14th amendment changed that. the 14th amendment was an enormous break after the civil war. and created a different constitution for america. so partly the changes come in that way. but partly, they -- they come
outside of the formal amendment process as well. what you said about plessi and brown is absolutely right. if you look at the specific intent of the drafters of the 14th amendment, they thought that the 14th amendment was perfectly consistent with segregated schools. i mean, you just have to -- you can't really argue otherwise as an historical matter. but in brown, the court said otherwise. and, you know, step by step by step, decision by decision, in large part, because it's inconsistent with the principles of the law with the draft that the 14th amendment laid down is inconsistent with that principle to have sessiongregated schools.
that's how change can happen as well. to go to your real question. i apologize to that digression. i have looked at that -- that book review -- many times. and have been pointed to it. and here's what i think. i still think that the basic points of that book review were right. and the basic points were that it's to the supreme court. the senate has a constitutional responsibility and should take that constitutional responsibility seriously. and also that it should have the information that it needs to take that responsibility seriously. and part of that is getting some sense, some feel of how a nominee approaches legal issues the way they think about the law. and i guess that's my excuse for
giving you a little bit more, even than you wanted about constitutional change. but -- but i would say that there are limits on that. now some of the limits i talked about in that article itself. i mean, that article makes very clear that it would be inappropriate for a nominee to talk about how she would rule on pending cases or on cases beyond that that might come before the court in the future. so the article was very clear about that line. now, when i came before this committee in my hearing, senator hatch and i had some conversation because senator hatch said to me -- i'm sorry he's not here -- he said to me he thought that i had the balance a little bit off. he said, you know, in addition -- he basically said, it's not just the people can ask you about cases coming to the -- that come before the court. they can ask you a range of
questions that are a little bit more veiled than that. but they're really getting at the same thing. if it's not right to say how you would rule on a case that's going to come before the court or it might, it's also not right to ask those kinds of questions which essentially ask you the same thing without doing so in so many words. i went back and forth a little bit with senator hatch both in these hearings and on paper, and i basically said to senator hatch that he was right. that i thought that i did have the balance a little bit off. and that i skewed it too much towards saying that answering is appropriate, even when it would, you know, provide some kind of hints. and i think that that was wrong. i think that in particular, that it wouldn't be appropriate for me to talk about what i think about past cases, you know, to grade cases.
because those cases themselves might again come before the court. >> well, actually, that is going to another area you've been associate general, you've argued a number of cases before the supreme court. the last -- the last person nominated directly to the supreme court not from a judgeship but from the administration was when justice rehnquist was working for the nixon administration and went directly to the supreme court. and then i was in dissent at that time. but i was there when he was being nominated for chief justice. i asked him to recuse himself from a case called laird versus tatum. now the laird case involved the nixon administration surveillance of americans. as the justice department's
legal expert, when he's working with the justice department for the nixon administration, he testified before congress about that case. but then after his confirmation, he was probably five justice majority in the very case in which he had testified. and he voted to dismiss the complaint alleging unlawful surveillance of lawful citizens' political activity. now our supreme court justices have to make up their own mind back and forth with justice scalia about some things in his relationship with the former vice president and ruling on cases involving him. i regularly ask questions of nominees, not just for the supreme court, but further courts about potential recusals. now, senator sessions and i sent you a questionnaire and in that we had the question recusal. and you answered it, appears to me, very seriously. tell me about what -- what
principles are you going to use to make recusal decisions if you can do just briefly. but then tell us some of the cases that you anticipate you are going to have to recuse? >> senator leahy, i think certainly as i said in that questionnaire answer that i would recuse myself from any case in which i've been counsel of record at any stage of the proceedings, in which i've signed any kind of brief. and i think that they're probably about ten cases -- i haven't counted them up particularly, but i think they're probably about ten cases that are on the docket next year in which that's true, in which i -- i've been counsel of record on a petition forfor certiori o
something of that manner. i said i would recuse myself of any case that i played a substantial role in the process. i would be her tanlt because one of the things i would want to do is talk to the colleagues thereupon and make sure this is what they think is appropriate too. but i think that would include any case in which i have officially formally approved something. so one of the things that the solicitor general does is approve appeals or approve am c -- amicus briefs to be filed in lower courts, or to approve interventions. >> i wish you would -- i was struck by former chief justice rehnquist's position -- i thought it was an open and shut question for recusal. the reason i mention it -- the
supreme court also has to have the respect of the american people. and some cases they can expect a justice on a case in which they will or will not agree with them. so long as they have request for the court, they will see that. they have justices involving a financial interest, which seems pretty clear cut. or other direct interests and then they rule on them, you can imagine this erodes the credibility of the court. i'm concerned about that whether it's the republican nominee or the democratic president's nominee. two years ago, the district of columbia versus heller, the supreme court held the second amendment guarantees to an american's individual right to keep and bear arms. i'm a gun owner, as are many people in vermont, and i agree
to the heller decision. and yesterday, mcdonald versus the city of chicago, the court decided the second amendment right to establishing heller is a fundamental right that applies to the states as well as the government. that's not going to have any effect one way or the other in vermont because we don't have gun laws in vermont except for hunting season, we try to give the deer a fighting chance. otherwise, there are no rules. is there any doubt after the court's decision heller and mcdonald is a second amendment to the constitution, secures a fundamental right for an individual to own a firearm, use it for self-defense in their home? >> there is no doubt, senator leahy, that's binding precedent and entitled to all respect to binding precedent in any case. that is settled law. . >> as solicitor general, did you
have a role in the president's domestic or foreign policy agenda? >> the solicitor general doesn't take part in policy issues. certainly -- the only policy issues i think i might have taken part of, and these are policy issues that would only overlap with litigation issues is national security issues. but otherwise, the solicitor general is a legal officer. >> if you were involve in domestic or foreign policy agenda, would that not be something you want to consider in the issue recusal? you mentioned national security issues, for example. >> right. i think that anything that i substantially participated in as a government official that's coming before the court, i should take very seriously as you say.
the appropriateness of recusal. >> now, i know when chief justice roberts were here, they'd worked for republican presidents. they assured senators as lawyers for presidential administration they were representing the views of the president. all my friends on the other side of the aisle thought that was fine. and the reason i mentioned it is i was concerned as some were saying that almost a different standard because back a number of years ago, you worked for the clinton administration. would you agree with chief justice roberts as a lawyer of the administration the policies you worked in advance the views of the president's policy of whom you worked. >> i worked for president bill clinton. we tried to implement his policy views and objectives.
>> let me ask you this -- we've heard you talk about harvard law school and military recruiting when you were a dean. and by enforcing the long standing nondiscrimination policy. -- you provided military recruiters with the access to students had been successfully % used for years under your predecessor dean clark for the approval of military recruiters and the department of defense. did you ever barre kreuters from the u.s. military from access of harvard law school when you were dean. >> senator leahy, military recruiters had access to harvard students every single day i was dean. >> let me ask you this, did the -- did the -- while you were
there, did -- did the number of students recruited go down? at all? while you were -- while you were dean? >> i don't believe it did, senator leahy. so i'm confident that the military had access to our students and our students had access to the military throughout my entire deanship. and that's incredibly important because the military should have the best and brightest people it can possibly have in its forces. and i think -- i said on many, many occasions that this was a great thing for our students to think about doing in their lives, that this is the most important and honorable way any person can serve his or her country. >> i -- always been my experience also that if someone wants to join the military, they're pretty motivated to join the military. my youngest son joined the marine corps out of high school.
there weren't recruiters on the high school campus. but he was able to find whether the recruiter was in downtown burlingtop a ington and walked e and signed up. my wife and i were proud for him doing that. here there's the implication given that somehow military recruit earles couldn't recruit harvard students. that was not the case, is that correct? >> that is not the case, senator leahy. the only question that ever came up -- as you stated earlier. this was a balance for the -- the law school. because on the one hand, we wanted to make absolutely sure that our students had access to the military at all times. but we did have a long stand going pack to the 1970s' antediscrimination policy which
says no employee can use the office of career services if that group would not sign the plemg that applied to many categories, race, gender, sexual orientation, veteran status as well. but the military couldn't sign that pledge. >> because of the don't ask don't tell. >> because of the don't ask don't tell strategy. >> which the chairman of the joint chiefs of staff said should be repealed. you said military service is the noblest of all professions. those cadets serve their countries in the most important of all ways. it didn't sound very anti-military to me. tell me why you said that? what you did at west point. >> i said it because i believe it. i was so honored to be invited to west point. they have a mandatory part of their curriculum and all students take a law course and they invite a person each year to talk to the students about any legal subject.
and it was really the greatest honor i think i've gotten to be asked to be that person. i went up and i talked to the west point students and faculty about -- about something that i talked about yesterday, really, which was about the rule of law. and about how it applied in the military context. and i was -- i was -- i just -- i loved that institution, the faculty, the students there. it was an incredible experience for me. but in addition, i mean, i tried in every way i could to make clear to harvard that veterans in the military at harvard law school and people going to go to the military, how much i respected their service. how much i thought they were doing the greatest thing anybody can do in their country. >> i tended to agree. i thought that way about our son.
we worried about him but we were proud of what he was doing. speaking of marines, i read may 21 "washington post" op-ed, the captain of the u.s. supreme court. 2008 harvard law graduate. he's serving as a legal advisor to a marine infantry battalion in southern afghanistan. i've been to that part of afghanistan with the group. not an easy place to be. he writes -- if elena kagan is anti-military, she certainly didn't show it. the firm advocate of the veterans association. the most thoughtful thanks of all just graduating from harvard law school. the supposedly anti-military elena kagan sent a handwritten note thanking me for my military service and wishing me in my new life as a judge advocate.
i want to thank you for doing that too. ly pi will put it in the record. captain merrill's op-ed. >> senator leahy, this has been a sort of a long process, this process. sometimes an arduous one. i've only cried once during this process. and i cried when i woke up one morning and i read that op-ed from captain merrill. that it meant just an enormous amount to me. he's a magnificent man doing great things for our country. and his praise meant more to me than anybodies. >> i haven't met him, but i was very touched by it. senator sessions. >> thank you, mr. chairman. and i value our relationship and we disagreed over documents in a few things. but i believe you tried to handle this committee in a fair way. no one's had more experience at it.
and fundamentally, i hope we had dean kagan, a good hearing. i hope you can feel free to tell us precisely how you think so we can evaluate what you might be like on the bench. we can have brilliant and wonderful people. and we have an approach to judging that i think advised them to be faithful to the law. to not take the -- to be able to honor that oath, which is to serve under the constitution and the laws of the united states, then we've got a problem. and i don't think that's judging. i think that becomes politics or law or something else. and so i would say that to you. i look forward to all of our members asking a number of questions to probe how you will approach your judgeship. let me ask you this -- >> thank you for those kind words. >> thank you, mr. chairman. and i meant that.
one thing before i get started, i would like to ask about your discussion of constitutional change earlier. you indicated that there is an amendment process in the constitution in two ways to do so. in the constitution. is there any other way than those two ways that the constitution approves to change the constitution? >> well, senator sessions, the constitution is an enduring document. the constitution is the constitution. and the constitution does not change except by the amendment process. but as i suggested to chairman leahy, the constitution does over time -- we're asked -- where courts are asked to think about how it applies to new sets of circumstances, to new
problems, the things that the framers never dreamed of. and in applying the constitution case-by-case-by-case, to new circumstances, to changes in the worl world, the constitutional law that we live under does develop over time. >> well, developing is one thing. and many of the provisions as you noted, they're not specific. but they are pretty clear, i think. but not always specific. but on -- you -- you're not empowered to alter the document. and change its meaning. you're empowered to apply its meaning faithfully in new circumstances. wouldn't you agree. >> i do agree with that, senator sessions? that's the point i was trying to make. however inartfully you take the fourth amendment and you say
there's unreasonable searches and seizures and that provisions stays the same unless it's amended. that's the provision. then the question is, what counts as an unreasonable search and seizure and new cases come before the court and the ccurt tries to think about to the extent that one can glean any meaning from the text itself, from the original intent, from the precedents, from the history, from the principles embed in the precedent. and the court step by step by step one case at a time figures out how the fourth amendment applies. >> i do believe thhre's some out there who think that the court really has an opportunity to update the constitution and make it say what they'd like it to say. i know we've seen a revival in the idea of the progressive legal movement that people in the early 20th century advocated
views for changing america. they felt the constitution often blocked them from doing that. and they were very aggressive in seeking ways to subvert or get around that constitution. the informant -- colleague at university of chicago, richard emstein, said any constitutional doctrine that stood in the way of the comprehensive, social, or economic reforms, he's referring to the progressives, had to be rejected or circumvented. and he noted that the progressive influence continues to exert itself, he's talking about today, long past a new deal in modern supreme court decisions that address questions of federalism, economic liberties, and takings for public use. i believe that's a dangerous philosophy. i believe that's a philosophy not justified by any judge on the court. and i'm worried about the trends. i think the american people are. greg craig, the former chief
council to president obama who's known you for sometime, i understand, said of you -- she's largely a progressive in the mold of obama himself, close quote. do you agree with that? >> well, senator sessions, i'm not quite sure how i would characterize my politics. but one thing i do know is that my politics would be, must be, have to be, completely separate from my judging. and i -- i agree with you to the extent that you're saying, look, judging is about considering the case that comes before you, the parties that comes before you, listening to the arguments they make, reading the briefs they file, and then considering how the law applies to their case. how the law applies to their case -- not how your own personal views, not how your own political views might suggest,
you know, a -- anything about the case. but what the law says, whether it's the constitution or whether it's a statute. now sometimes that's a hard question -- what the law says. and sometimes judges can disagree about that question. but the question is always -- what the law says. and if it's the -- if it's the constitutional question, it's what the text of the constitution says, it's what the history says, the structure, the precedent. but what the law says, not what the judge first -- >> i agree. the point i just wanted to raise with you is that this idea, this concept of legal progressivism is a foot. i noticed echlt j.dionne in yesterday's "washington post" had an article started off, the second paragraph as saying, democratic senators are planning to put the right of citizens to challenge corporate power at the senator of their critique of an activist conservative judging. offering as a case that has not
been offering a case that has not been fully aired since the great progressive era of justice lewis bran dice. and i think we do have this national discussion going on about a revival of progressivism. let me ask you about this. vice president biden's chief of staff, ron claim, who served on chief council of this committee skilled lawyer, was vice president chief of staff -- chief of staff to vice president gore, also, i believe, who's known you for a number of years said this about you -- elena kagan is clearly a legal progressive. i think elena is someone who comes from the progressive side of the spectrum. she clerked for judge mick, clerked for justice marshall, worked in the clinton administration, the obama administration. i don't think there's any mystery to the fact that she is. as i said, more progressive role than not, close quote. do you agree with that?
>> senator sessions, it's absolutely the case that i have served in two democratic administrations. and i think -- >> i'm asking, do you agree with the characterization that you're a legal progressive. >> senator sessions, i honestly don't know what that label means. i work in two democratic administrations. snarlt graham suggested yesterday and i think you're right that you can tell something about me and my political views from that. but as i suggested to you, that my political views are one thing -- >> i agree with you, exactly, that you -- you should not be condemned for being a political believer and taking part in the process and having views. but i'm -- i'm asking about his firm statement that you are a legal progressive which means something. i think he knew what he was talking about. he's a skilled lawyer that's been in a debate of justice and politics just as you have.
i'm asking you again, do you think this is a fair characterization of your views? certainly you don't think he was attempting to embarrass you or hurt you in that process? >> i love my good friend, but i guess that i think that people should be allowed to label themselves. and that's -- i don't know what that label means. and we're not going to characterize it one way or the other. >> i'm saying having looked at your overall record, having considered those two people who know you very well, i think you have to classify you -- i would have to classify you as someone in the theme of a legal progressive. one of the things i want to test is your willingness to follow the law, even if you might not agree with it, and senator leahy has asked you about harvard and the military.
isn't it true, isn't it a fact that harvard had full and equal access to the recruiting office, the office of career services, when you became dean? and isn't it true that -- well, isn't it true -- well, when you became dean. >> senator sessions, the military had full access to students at all times, before i became dean -- >> that's not the question. >> let her answer the question. >> but -- you know, you'd -- you -- go ahead. >> so the history of this is harvard did have this anti-discrimination principle and for many, many years, my predecess predecessor, bob clark, had set up a system to ensure military access, but also to allow harvard to comply with its anti-discrimination policy, which prohibited the office of career services from providing
assistance to employers who cou not sign the anti-discrimination pledge. and the accommodation that bob worked out was that the veteran's organization would instead sponsor the military recruiters. so the only thing that was at issue was essentially the sponsoring organization, whether it was the office of career services or, instead, the student veteran's -- >> please, let me follow up on that. in august 26 of 2002, dean clark, your immediate predecessor, act wiquiessed fro failure to comply with the law which requires not just access, but equal access to the offices on campus. he replied in this fashion to the government -- this year and in future years, the law school will welcome
military -- the military to recruit through the office of career services, closed quote. so that was with the rule when you took office, was it not? >> it was the rule when i took office. and it remained the rule after i took office. for many years, d.o.d., the department of defense, had -- >> well, not for many years -- well, how many -- >> well, for a number of years, for a great number of years, the department of defense had been -- had been very accepting. had approved the accommodation that we had worked out. you're quite right in 2002, d.o.d. came to the law school and said although this accommodation has been acceptable to us so far, it's not acceptable any longer and instead we want the official office of career services assistance. >> but before -- and harvard acquiessed and agreed to do so.
>> the dean decided to do so. >> on the direct threat of cutting off funds, and otherwise he indicated in his statement, he would not have done so. when you became dean, you personally opposed a don't ask don't tell policy and felt strongly about it. >> i do oppose the don't ask don't tell policy. >> and you did then. >> and i did then. >> and you -- in '03, not long after you had been -- became president, you said, quote, i abhor the military's discrimination recruitment policy, close quote. i consider it, quote, a profound wrong, a moral injustice of the first order, close quote. you said that not within six months or so becoming dean. and that's the e-mail you sent to the entire law school. >> senator session, i have repeatedly said the don't ask don't tell policy is unwise and unjust. i believe it then and now. we were trying to do two things. we were trying to make sure that
military recruiters had full and complete access to our students but we were trying to protect our own anti-discrimination policy and to protect the student with whom the policy was supposed tt protect and who have gay and lesbian students. >> in fact, there was a protest on campus, the next year and you participated in that protest and spoke out saying, quote, i'm very opposed to two government policies that directly violate the policy of nondiscrimination and directly impact our students. the first is "don't ask don't tell," the second one is an amendment, which effectively forces educational institutions to make this exceptions for
policy. you said that at that meeting. and in addition to that, a lawsuit was filed in addition to that circuit, a third circuit. and you agree in the don't ask don't tell policy. is that correct? >> senator sessions, that's not correct. the law school brought a challenge to the don't ask don't -- to the solomon amendment. we did not participate in that challenge. what the brief that i filed did do is try to argue harvard's accommodation that allowed -- that welcomes the military on campus but through our veterans organization what we tried to argue that that accommodation was consistent with the solomon amendment. that's what we argued to the third circuit. >> and eventually the supreme court did not agree with that.
but after the third circuit rule, 2-1, questioning the constitutionality of the statute, are you immediately the very next day changed the policy at harvard and barred the military from the office of career services, the equal access to solomon amendment had required. is that correct? >> senator session, after the third circuit ruled the solomon constitution unconstitutional, and the third circuit was the only appellate court to have issued a ruling on that question and did rule it unconstitutional. i thought it appropriate at that point to go back to what had been the school's long-standing policy, which had been to welcome the military on to the campus but through the auspices of the veteran's organization, rather than through the auspices of our office of career services. >> well, the and that was not the equal access that the solomon amendment,
which i worked on to pass, required. congress, frankly, was very frustrated at the law schools. we passed four or five versions of the solomon amendment to get around every maneuver that occurred on the campus. now, isn't it a fact that the mandate or the injunction never issued by the third circuit that the third circuit holding did not apply to harvard at the time you stopped complying with the solomon amendment, and isn't it a fact that you were acting in violation of harvard's agreement and the law when you reversed policy? >> senator sessions, we were never out of compliance with the law. nobody ever suggested that harvard should be sanctioned in any way. the only question was whether harvard should continue -- continue to remain eligible for
federal funding. and after dod came to us and after dod told us that it wanted law schools to essentially ignore the third circuit decision, that it wanted -- that it was going to take that decision to the supreme court, and that it wanted law schools to continue to do what they had been doing, we did change back, we did precisely what dod asked us to do and dod never withheld -- >> ms. kagan, you didn't do what the dod asked you to do. just answer this -- put your legal hat on for a second. the third circuit opinion never stated the enforcement of the solomon amendment at harvard, did it? did that law remain in effect? >> senator sessions, the question was -- >> no, that's my question to you. did the law remain in effect at all times at harvard? >> the solomon amendment remained in effect, but we had always thought that we were
acting in compliance with the solomon amendment, and for many, many years dod agreed with us. after the third circuit, i thought it was appropriate to go back to our old policy, which previously dod had thought complied with the solomon amendment. when dod came to us and said, no, the third circuit hasn't changed matters because we're going to take this to the supreme court, and we want the law schools really to ignore what the third circuit said, dod and we had some discussions, and we went back to doing it exactly the way dod wanted it to. >> let's get more basic about it. the military, you stopped complying and that season was lost before the military realized frankly you never conveyed that to them in a straight up way like i think you should have. you just started giving them a run around. the documents we have gotten from the department of defense
say that the air force and the army says they were blocked, they were stone walled, they were getting the run around from harvard. by the time they realized that you had actually changed the policy, that recruiting season was over. and the law was never not in force. i feel like you mishandled that. i'm absolutely confident you did, and but you continue to persist with this view that somehow there was a loophole in the statute that harvard did not have to comply with. after congress had written a statute that would be very hard to get around. what did the supreme court do with your brief, how did they vote on your brief attacking the effectiveness of the solomon amendment to assure equal access at harvard? >> senator sessions, if i might, you had suggested that the military lost a recruiting season. but in fact the veterans
organization did a fabulous job of letting all our students know that the military recruiter were going to be at harvard during that recruiting season and military recruiting went up that year, not down. now you're exactly right that the supreme court did reject our amicus brief. we filed an amicus brief saying that essentially the harvard policy complied with the solomon amendment. the supreme court rejected it 9-0, unanimously. >> but even before that, the military said the law was still in effect. harvard had no right to get around it. and they should comply even before the supreme court issued a ruling and they had to contact the university's counsel and the president, mr. larry summers, onthey -- mr. summers agreed that the military should have full and equal access before
even the supreme court ruled. but after you had denied equal access. isn't that right? >> senator sessions, we had gone back and done exactly what the department of defense had asked us to do prior to the time that the supreme court ruled. we had done it -- >> wait a minute. you asked them what they asked you to do, after the third circuit ruled, you denied them access, they had to insist and demand that they have equal access because the law was still in effect, you did not agree to that, you had reversed that policy and the president of the university overruled your decision, according to the internal dod documents. they say that president summers agreed to reverse the policy, the dean remains opposed. >> senator sessions, larry summers and i always worked cooperatively on this policy. i didn't ever do anything that
he didn't know about and he never did anything that i didn't approve of with respect to the decision that you're talking about, this was a joint decision that larry and i made that because dod thought what we were doing was inappropriate, we should in fact reverse what we had done. that period lasted for a period of a few months and my six-year deanship. and long before the supreme court issued its ruling in the fair versus rumsfeld case, we were doing exactly what dod asked us to do. >> so it is your testimony that the decision you made immediately after the third circuit opinion, you concluded was inappropriate? you and president summers and you reversed that policy later? >> senator sessions, what i did after the third circuit decision was to say, look, the only
appellate court to have considered this question has struck down the statute. we have always thought that our policy was in compliance with the statute. the appropriate thing for me to do, really the obligation that i owed to my school and its long-standing policy was to go back to our old accommodation policy, which allowed the military full access, but through the veterans organization. when dod came to us and said it thought that was insufficient, that it wanted to essentially ignore the third circuit decision because it was taking it up to the supreme court when they came back to us, we went through a discussion of a couple of months, and made a decision to do exactly what dod wanted. >> you did what dod wanted when they told the president and the counsel for the university they were going to lose some $300 million if dean kagan's policy was not reversed. isn't that a fact? >> senator sessions, we did what
dod asked for because we have always, you know, tried to be in compliance with the solomon amendment, thought that we were. when dod had long held that we were, when dod came back to us and said, no, notwithstanding the third circuit decision, we maintain our insistence that you're out of compliance with the solomon amendment, we said, okay. >> well, in fact, you were punishing the military. they protest that you had -- that you spoke to on campus was that the very time in the next building or one or two buildings nearby the military were meeting there. some of the military veterans when they met with you the first time expressed concern about an increasingly hostile atmosphere on the campus against the military. didn't they express that to you? >> senator sessions, i think, as
i said to senator leahy, but i tried in every way i could throughout this process to make clear to all our students, not just to the veterans, but to all our students how much i valued their service and what an incredible contribution i thought that they made to the school. >> i don't deny you value the military. i really don't. and -- but i do believe that your actions you took helped create a climate that was not healthy toward the military on campus. but let me ask you this, you keep referring in your e-mails and all to the military policy. isn't it a fact that the policy was not the military policy, but a law passed by the congress of the united states, those soldiers may have come back from iraq or afghanistan, they were appearing to recruit on your campus were simply following the policy of the united states congress effectuated by law, not their idea, and that you were taking steps to treat them in a
second class way, not give them the same equal access because you deeply opposed that policy. why wouldn't you complain to congress and not to the dutiful men and women who put their lives on line for america every day? >> senator sessions, you're, of course, right that the solomon amendment is law, passed by congress. and we never suggested that any members of the military, you know, should be criticized in any way for this. quite to the contrary. we, you know, i tried to make clear in everything i did how much i honored everybody who was associated with the military on the harvard law school campus. all that i was trying to do was to ensure that harvard law school could also comply with its anti-discrimination policy, a policy that was meant to protect all the students of our campus, including the gay and lesbian students who might very
much want to serve in the military, who might very much want to do that most honorable kind of service that a person can do for her country. >> i would think that that's a legitimate concern and people can disagree about that and i respect your view on that. what i'm having difficulty with is why you would take the steps of treating the military in a second class way, to speak to rallies, to send out e-mails, to immediately without legal basis because the solomon amendment was never at any time not in force as a matter of law. why you would do all those things simply to deny what congress required that they had equal access as anyone else. >> senator, the military at all times during my deanship had full and good access. military recruiting did not go down. indeed, in a couple of years
including the year that you're particularly referring to it went up. it went up because we ensured that students would know that the military recruiters were coming to our campus, because i talked about how important military service was, because our veterans organization and the veterans on campus did an absolutely terrific job, a terrific service to their fellow students in talking to them about the honor of military service. >> i would just say while my time is -- is running down, i'm just a little taken aback by the tone of your remarks, because it is unconnected to reality. i know what happened at harvard. i know you are an outspoken leader against the military policy. i know you acted without legal authority to reverse harvard's policy and deny those military equal access to campus until you were threatened by the united states government of loss of federal funds.
this is what happened. >> the senator's time has expired. but you can respond to that if you want. >> -- did not happen in that way and i think if you had any complaint, they should have been made to the united states congress, not to those men and women who we send in harm's way to serve our nation. >> especially because of the number of people including the dean of west point who has praised you and said that you were absolutely not anti-military, i'll let you respond, take time to respond to what senator sessions just said. >> well, thank you, senator leahy. you know, i respect and indeed i revere the military. my father was a veteran, one of the great privileges of my time at harvard law school was dealing with all these wonderful students that we had, who had served in the military and students who wanted to go to the military. and i always tried to make sure
that i conveyed my honor for the military and i always tried to make sure that the military had excellent access to our students and in the short period of time, senator sessions, that the military had that access through the veterans organization. military recruiting actually went up. but i also felt a need to protect our -- to defend our school's very long-standing anti-discrimination policy and to protect the men and women, the students, who were meant to be protected by that policy, the gay and lesbian students who wanted to serve in the military and do that most honorable kind of service. questions, some of which are asked for a yes or no to the extent you can do that, i appreciate it. you can do whatever you want to do. how's that? general kagan, i wt to begin by discussi freedom of speech in general and campaign finance reform in particular. as you know, the first word in
the first amendment is congress. i know that the supreme court has said the first amendment also limits state government, but do you agree that the america's founders were first concerned about setting explicit limits on the federal government in areas such as freedom of speech? >> there is no question that the first amendment limits what congress and what other state actors, executive officials can do. >> supreme court said that the first amendment protects some types of speh more strongly than others. and even that it does not protect some types of speech at all. do you agree that the supreme court is held repeatedly that political speech, especially during a campaign for political office is at the core of the first amendment haenz tand has first amendment's strongest protection. >> it is at the core of the first amendment. i think that has been said many times by the court. >> i think one of the great
examples, back in1989, really ce out very strongly on that. when you worked in the clinton white house, you wrote a memo in october 1996 in which you wrote this "it is unfortunately true that almost any meaningful campaign finance reform race raises constitutional issues. this is a result of the supreme court's view which i believe to be mistaken in many cases that money is speech, and that attempts to limit the influence of money in our political system therefore raise first amendment problems." now as i understand it, president harry truman argued as far back as 1947 that a ban on independent expenditures would be "a dangerous intrusion on free speech." the notion that spend and speech are necessarily related is hardly new and hardly confined to the supreme court or one political party. do you recognize -- or excuse me, do you reject the idea that
spending is speech? >> senator hatch, those- the quote you read, i believe, was not written by me in my voice, it was a set of talking points i prepared for -- i'm not sure if it was for the president,or president clinton, or if it was for the press office, but it was meant to rlect the administration's position at the time, the administration was trying very hard to enact the mcain/feingold bill. and those talkng points were in service of that objective and so they weren't, you know, my personal constitutional or legal views or anything like that, but was just a set of talking points i prepared for i think it was for the press office, may have been for the psident himself. >> you were listed as the creator. >> i created a lot of talking points in my time. >> okay. okay. i accept that. i want to turn to the supreme
court's decision in citizens united versus fac for a little bit. i've seen media reports in a meeting with at least one of your colleagues on this committee, yousaid that you believed the the steens ycitized case whichas wrongly decided. >> i argued the case, of course, i walk up to the podium and argued strenuously that the bill was constitutional. >> i'm not asking about -- >> and over the course --t least for me, when i prepare a case for argument, the first person i convince is myself. sometimes i'm the last person i convince, but the fist person i convince is myself. and so, you know, i did believe that we had a strong case to make. i tried to make it to the best of my ability. >> okay. the statute being challenged inn
this case prohibited different types of for profit corporations, nonprofit corporations and labor unions from using their regular budget to fund speech by candidates on election issues within 30 to 60 days of a primary or a general election. they could form separate organizations called packs, political action committees, to do so, but they did not have the freedom to use their own money directly to speak about candides or issues as they saw fit. now i know there is a lot of loose rhetoric about the decision in this case allowing unlimited spending on elections. i assume that is to conjure up images of campaign contributions or collusion. the statute and the citizens united case involvedhat are called independent sxexpenditur or money spent by corporations, nonprofit groups or unions
completely on their own to express their political opinions. this case had nothing to do with contributions to campaigns or spending that is coordinated or connected inny way with candidates or campaigns. isn't that true? >> you're right, senator hatch this was an independent expenditure case rather than a contributions case. >> right. when president obama announced your nomination, he said you believed that, "in a democracy powerful interest must not be allow to drown out the voices of ordinary citizens." all of the rhetoric surrounding this case is focused on large for profit corporations, but the law in question and, of course, this case affected much more than that. as you know, in that case, a nonprofit organize sued to defend its freedom of speech rights. do you agree many people join or contribute to nonprofit advocacy
organizations because they support the missions of those groups and those groups magnify the voice of their members and their contributors? >> i do agree that civic organizations are very important in our society, senator -- >> not just civic organizations, i'm talking about unions, businesses and nonprofits and profits and partnerships and many others. >> you're right that the statute that the government defended in the citizens united case was a statute that applied to many different kinds of corporations. one ofhe things that the government suggested to the court in the course of its arguments was that one possibly appropriate way to think about the case might be to treat those different situations differently. but the statute itself applied to many different kinds of organizations. >> okay. now, president obama called the citizens united decision a victory for powerful interests
that marshall their power every day in washington to drown out the voices of everyday americans, unquote. as i said, the statute applied to for profit corporations, nonprofit corporations and labor unions. do you believe that -- let's take unions. do you believe they're "powerful interests that drown out the voices of eryday americans". >> senator hatch, with the government tried to argue in that case was that congress had compiled a very extensive record about the effects of these independent expenditures by corporates generally and by unions generally on th political process. and that what the congress had found was that these corporations and unionshad a kind of access to congressmen, had a kind of influen over congressmen that changed outcomes that was a corpting influence on congress. and that was what the many,
many, many thousand page record that was created before congress enacted, the mccain/feingold bill, revealed and that what's we tried to argue to the court. >> understand the argument. but the statute then in political speech that was challenged in citizens united also applied to small s-chapter corporations that may have one shareholder. there are more than 4.5 million s corporations in america. we have 56,000 in my home state of utah alone. these are small company who want the legal protections that incorporating provides. these are family farmers, ranchers, mom and pop stars and other small businesses. before the citizens united decision, these small family businesses could be barred from using their regular budget for, say, radio, program or a pam in the opposing their congressman for his vote on a bill if it was that close to an
election. do you believe that constitution gets the federal government this much power? >> senator hatch, trade unions generally had this kind of corrupting impact on -- >> i'm talking about an organization of small corporations as well. >> senator hatch, of course in this litter general's office, we defend statutes and congress determined -- >> i understand that. let me ask my questions the way i want t i will. i'm going to be fair. i intend to be. and you know that after 34 years. go ahead. keep going. did you have something else you wanted to add? >> no, go ahead. >> okay. we have to have a little back and forth every once in a while or this place would be boring, i tell you. >> it gets the spotlight off me, you know, so i'm all for it. go right ahead. >> by t way, i've been informed that hell is not boring
so you can imagine what i mean by that. i have the current volume. the current volume of the codele federal regulations. this is governing campaign finances, 568 pages long, this code. this does not include at 1278 pages for these regulations. nor does it include another 1771 federal election commission advisory opinions, even more enforcement rules and more federal statutes. let me ask you this, do you believe that the constitution allows the federal government to require groups such as nonprofit corporations and small s-chapter corporations to comb through all this? this is just part of it. thousands of other pages of regulations. likely hire an election law attorney and jump through all the hoo of forming a political action committee with all of the
cuts and limitations simply to express an opini in a pamphlet or radio or movie or just to criticize their elected officials? do you believe the constitutional allows that type of requiremet? >> senator hatch, i want to say senator hatch, you should be talking to senator feingold. but i won't do that. congress made a determination here. the determination was the corporations and unions generally had this kind of corrupting influence on congress when they engaged in a -- >> you have knowledge of all these other smaller groups and all these other groups that have -- should have a right to speak as well. >> the solicitor general's office defends statutes as there written. congress made the determination broadly that corporations and trade unions had a corrupting influence on congress. and in the solicitor general's office, we in the solicitor general's office as other solicitor general offices have done vigorously defended that
statute as it was written on the basis of the record that was made in congress this, i think it w i 100,000 page record about the corrupting influence of independent expenditures made by corporations and unions. the court rejected that position. the court rejected that position in part because of what you started with. you said, political speech is of paramount first amendment value, no doubt the case. and the court applied a compelling interest standard and the court rejected the position. buthe position that we took was to defend the statute, to apply it broadly. >> i have no problem with that. that was your job. i'm getting into some of the comments by some of our colleagues, like the press and others, about how wrong this case was. when i don't think it was wrong at all. your 1996 law review article about private space and public
purpose emphasized the need. i would like to know whether you personally agree with the supreme court and the citizens united decision that "speech restrictions based on the identity of one speaker are all too often simply a means to control content. do you agree with with that. >> senator hatch, speaker based restrictions do usually get strict scrutiny from the supreme court for the reason you suggest which is a concern about why it is that congress is sayg one speaker can speak and not another. i had a very interesting colloquy with justice scalia at the court on this question. >> i understand. >> justice scalia said to me and it's a powerful argument. he said well, you know, if you let congress think about these things, congress is going to protect incumbents that that might be a reason for congress
to say that certain groups can make independent expenditures and others not. >> well, one part of congress would protect incumbents and the others would try to throw them out. that's what this system is. >> but i said to justice scalia and i think it's true with respect to the mccain-feingold bi that all the empirical evidence suggests i think my line was this is the most self-denying thing that congress has ever done. because all the empirical evidence suggests that these corporate and union expenditures actually do borough text incumbents, not withstanding that in the mccain-fooirn gold bill, congress determined that it was in order to prevent corruption to prevent those expenditure, but the court said no. >> well, tellhat to blanche lincoln, how incumbents are protect the. in this case, the speech in which citizens united.
blanche lincoln isne of the nicer people around here who had $10 million spent against her by t e u. the unions just because they disagreed with her on one or two votes. let me keep going now. i'm enjoying our colloquy together. >> me, too. >> i hope so. in this case, the speech in which citizens united wanted to engage was in the fo of a movie about a presidential candidate, hillary clinton at the time. the deputy solicitor general first argued the case. that the deputy solicitor general from your office. he told several justices that if a corporation of any size, a u.n. or even a nonprofit group did not have a separate pac, the constitution allows congress to ban publishing, advertising or selling not only a traditional print book but criticized the political candidate but electronic books on devices such
as the kindle. even a 500-page book that had only a single mention of a candidate not only print or electronic books or a news letter, even a sign held up in lafayette park. now isn't that what under that argument at that time, your office admitted that at first oral argument at the end of the day, the constitution allows congress to ban them from engaving in any political spemp in any of those forums? >> senator hat -- >> i'm not blaming you for the priority, nor am i blaming the person trying to defend this statute, i'm just saying that's what happened. >> senator hatch, the statute which applies only to corporations and unions when they make independent expenditures, not to their pacs. but the cporations and unions when they make independent expenditures within a certain period of an election. >> right. >> the statute does not
distinguish betwe movies and anything else. >> well, as you can see, i'm finding a certain amount of fault with that that's why the citizens united case, i think is a correct decision. the court has been criticized including just yesterday in this hearing for not deciding the citizens united case on narrower statutory grounds. but according to some media counts such as the national journal, it was your office's admission that the statute had much broader constitutional implications that prompted the court to ask for a second argument in this case, that's where you come in. you reargued the case last september and i believe that it was justice ginsberg who asked if you believe if they may ban certain books at certain times. >> you said the statute in question covered book but there might be some legal argument to actually apply it to books. i certainly agree with you. but didn't you argue that the constitution allows the federal
government to ban corporations, union and nonprofit groups from using their regular budget funds to publish pamphlets that say certain things about candidates close to an election. did you? >> senator hatch, we were -- i wasdefending the statute as it was written. >> i understand. >> and the statute as it was written applies to pamphlets as well as to the movie in the case and we made a vigorous argument that the application of that statute to any kind of classic electioneering materials, not books, but the application of the statute to any kind of classic electioneering matials was in facts constitutional and that the court should defer to congress' view of the need for this -- >> i accept that i accept that you had made that argument and that you were arguing for statutory enactment by the congress. but as i mentioned, you said that the federal government could ban certain pamphle at
certain times because pamphlets are as you put it pretty classic election ooerg. you id that pamphleteering has deep historical roots. such as thomas payne's "common sense." since in the citizens united case you were applying the statute to a film, would you also consider films as classic electioneering? >> senator hatch -- i'm trying to remember what our brief sai but yes, i think that the way we argue the case. >> you took that position. >> their it applied to films, as well, of course. >> a pamphlet is often defined as a unbound printed work. usually with a paper cover or short essay or treatise. in another first amendment
context involving the establishment clause, justice kennedy criticized the idea that application of the first amendment depend on such things ashe presence of a plastic reindeer or the relative placement of a poinsettia. i believe he called that jurisprudence of minutia. i thought it was an interesting comment, myself. do you believe that the first amendment should depend on such things as the stiffness of the curve, the presence of a binder or the number of words on a page? now you can give an idea on that since that case is decided. >> senator hatch, what we did in theitizens united case was to defend the statute as it was written, which applied to all electioneering materials with the single exception of books which we told the court were not the kind of classic ectioneering materials that
posed the concerns that congress had found to be posed by all electioneering materials of a kind of classic kind. books are different. nobody uses books in order to campaign. >> that's not true. you did say that books are probably covered, but you didn't think they would -- >> i thought i said that the argument was that they were covered by the language of the statute but that a good constitutional challenge as applied constitutional challenge could be made to it because the purposes that congress had in enacting the statute which were purposes of preventing couption wou not easily have applied to books. but would have applied to all the materials that people typically use in campaigns. >> i understand. in 1998 when you served in the clinton administration, the federal election commission sued steve forbes and his company that publishes "forbes"
magane, i have a copy of the "forbes" magazine right here, i think most people are familiar with t steve forbes had taken a leave from his position with the company to run for president but continued writing columns on various issues. the fcc used the same statute that you used inhe citizens united case to say these columns were illegal corporate contributions to forbes's presidential campaign and i know they later terminated the lawsuit and i know this forbes lawsuit involved alleged campaign contributions rather thanndependent expenditures but the same statute was involved and i use this as an example to show what can hpen on the slippery slope of the federal government regulating who may say what and when about the government. now forbes case involved a magazine. the case you argued involved a movie. your office admitted that the statute could apply to books and
news letters, you admitted that it could apply to pamphlets. now all of this involves the political speech that is the very heart of the first amendment, whether engaged in by for-profit corporations, nonprofit corporation tiny s chapter corporations or labor unions. do you really believe -- now this is your personal belief -- do you really believe, i understand you reprent the government, but do you really believe that the constitution allows the federal government this much power to pick and choose who may say what, how and when about the government? >> senator hatch, putting the citizens united case to the side, i think that there are extremely important constitutional principles that prevent the government from picking and choosing amongss speakers except in highly unusual circumstances with hugely compelling interests. >> well, what's highly unusual
about a book or pamphlet or a movie? >> senator hatch, i said putting citizens united to the side. i argued that case, i argued it on behalf of the government because congress had passed a statute. >> but you do believe it was wrongly decided, too, don't you? >> i'm sorry? >> you did take the position it was wrongly decided? >> i absolutely said, senator hatch, that when i stepped up to the podium as an advocate, i thought that the u.s. government should prevail in that case and the statute should be upheld. i want to me a clear distinction between my views as an advocate and any views i might have as a judge. i do think citizens united is settled law going forward. there's no question it's precedent and entitled to you will at weight precedent usually gets. i also want to make clear that in any of my cases as an advocates, this is citizens united or any of the other cases in which i've argued, i'm approaching the things, the cases as an advocate from a
perspective of first the united states government interes and also it's a different kind of preparation process. you don't look at both sides in the way you do as a judge. >> i got that. i got that. i don't have any problem with that. i'saying, we've had arguments right here in this committee thathis was a terrible case that upset 70 years of precedent and i've heard all these arguments. and they're just inaccurate. that's what we're establishing here. when president obama criticized the citizens united decision in the state of the union address with the supreme court justices sitting there, he said that it would allow foreign corporations to fund american elections. others have said the same thing. do you agree that this case involved an american nonprofit organization not a foreign corporation, that this case involved independent political speech, not campaign contributions and that the
separate laws regarding political spending by foreign contributions and campaign contributions by anyone are still enforced today? >> senator hatch, this case did, as you say, these parties were domestic, nonprofit -- was a domestic nonprofit corporation. >> okay. yeah, well, there was no foreign corporation involved. that's one of the points i'm try triing to establish. it was a misstatement of the law. i'm not here to beet up on %-esident obama, i just want to make this point. and yet colleagues have accepted that like it's true, it isn't true. in first national bank of boston versus bilootti, the supreme court held in 1978 that the identity of the speaker is not decisive no n terming whether speech is protected. corporations and other individuals contribute to the discussion, debate and
dissemination of ideas that the first amendment seeks to foster, unquote. billotti was decided just two years after the landmark case of buley versus vallejo. recognizing that corporations have a first amendment right to engage in political speech n that decision, chief justice berger wrote an interesting concurrence to raise questions likely to arise notice future, unquote these questions included that large corporations would have an unfair advantage in the political process. he some amazing insight there, i think, because people are making just such arguments today. that case also involved the first amendment protection of the press but berg noted how the gvernment historically has tried to limit what may be said about t he concluded, quote, in short, the first amendment does not belong to any definable category, persons or entities it belongs to all who exercise its freedom, unquote. do you agree with that?
>> i'm sorry, senator hatch. >> do you agree with justice berger's comment there? >> would you rae reed that again, i'm sorry. >> i would be glad to he said in short the first amendment does n belong to any definable category, persons or epties. it belongs to all who exercise its freedom. >> senator hatch, the first amendment protects all of us. and grants all of us rights. >> right and they're important. in citizens united -- see i'm getting tired of people on the left saying it was a wrongly decide kamplts let me make this point. the court listed as least 25 precedents dating back almost 75 years. here's a list of them right here. holding generally that the first amendment protects corporate speech and specifically that it
protects corporate political speech. now, i'd like to put these cases in the record at this point. on the other side of the presidential scale is a single 1990s decision in austin versus michigan chamber of commerce. as the court said in citizens united, no other case held that congress may prohibit expentures for political speech based on the entity of the speaker. in other words, austin was the aberration, the exception, the break in the court's kinlt pattern of precedents and many folks have -- mr. chairmaa i need about 30 seconds more, just to finish here. >> 30 seconds more. >> many folks have established the decision saying it is a prime example of, kboet, conservative judicial activism, unquote, because it ignored precedent by overruling austin. that by overruling that one precedent, wasn't the court realliry reigh affirming a much larger group of previs
decisions including billotti, a that as we discussed afirmentd that corporations of have a first amendment right to engage in political speech? and that includes all these small corporations. that sounds like the court is committed to precedent not rejecting it. now i thank my chairman for allowing me to make that last comme,ut get a little tired of people misstating what citizens united is all about and aapprecte your comments here today. >> senator hatch, i think there was a significant issue in the case about whether austins were an anomaly, as you quoted, or whether it was consistent with prior precedent and consistent wwwwororororororororororthy of effective role as ranking member. >> may we start at 30 minutes on my clock without senator session's interjection. >> madam solicitor general, i begin with concern of separation of powers which is the foundation of the constitution,
and the concerns i have for what the supreme court has done really in having a consolidation of power. a lot of it going to the court, a lot of it going to the executive branch, and it's all coming from the traditional power of congress. before i move into that area, i want to take up a couple of points. senator sessions has raised the issue about you being a progressive, a legal progressive. when he was doing that this morning i was thinking about the supreme court's decision yesterday incorporating the second amendment into the due process clause of the 14th amendment and remember how many objections were raised to the activist liberal warren court for doing that. i was a prosecutor at the time,
and the law changed. constitutional law changed with a map in ohio in '16 and gideon in '63 and rand in '66, and now we have the five conservatives being progressives or activists. i was intrigued by senator hatch's questioning you on the citizens united case, really an extraordinary case characterized by what justice stevens had to say in dissent. you have congress constructing a detailed record. 100,000 pages, and congress has structured mccain/feingold based
upon the standards set by the supreme court in austin versus michigan chamber of commerce, and then as justice stevens noted, the court pulled the rug out from congress, affirming the constitutionality that had been in effect for 100 years, and as justice stevens conclude showing, quote, great disrespect for a co-equal branch. i will try to make my questions as pointed as i can. to the extent that you can answer them briefly, i'd appreciate it. we don't have a whole lot of ti time. what is your thinking on the disrespect for the congress when we take a supreme court decision and we structure a law based on
those standards with the customary deference due congress on fact-finding. isn't that really what justice stevens calls it, disrespect? >> well, senator specter, as you know, i argued that case. as you know, i filed briefs on behalf of the united states in that case, and in those briefs the government made a similar kind of argument, that great deference was due to congress in the creation of a quite voluminous -- >> i know what you've said. you've talked about that a great deal. my question is very pointed. wasn't that disrespect fful? >> senator specter, as i suggested before, when i walked up to that podium as citizens united, i thought we had extremely strong arguments. i was acting as an advocate, of
course, but i -- i thought we had very strong arguments. >> i'm going to move on. i know all of that. the point that i am trying to find out from you is what deference you would show to congressional fact-finding. >> well, may i -- may i try again because i think that the answer to that is great deference to congressional fact-finding. >> well, was it disrespectful or not? >> well, again, i don't want to characterize what the supreme court did. >> i want to move on. if you don't want to characterize, i want to ask my next question. in u.s. versus morrison involving the issue of violence against women we had a mountain of evidence assembled, as justice s 0 ter pointed out in dissent, and the court rejected
congressional findings because of our, quote, method of reasoning. you haven't crossed the street to the supreme court yetu but do you think there's some unique endowment when nominees leave this room and walk across the street to have a method of reasoning which is superior to congressional method of reasoning so that we can -- so that a court can disregard voluminous records because of our method of reasoning? >> to the contrary, senator specter. i think it's extremely important for judges to realize that there is a kind of reasoning and a kind of development of factual material more particularly that goes on in congress. >> then you disagree with chief justice rehnquist. >> i think that it's -- that it's very important for the courts to defer to congressional fact-finding, understanding that the courts have no and the to do
fact-finding, are not -- would not legitimately, could not legitimately do fact-finding. >> well, i know all of that, but what do you think of our method of reasoning? >> as i -- as i said earlier, senator specter, i have enormous respect for the legislative process, and part that have respect comes from working in the white house and working with congress on a great many pieces of legislation. >> i'm going to move on to my next question. justice scalia attacked the stan dand of congruence and proportionality saying that this court is acting as congress' task master. the court is checking on congressional homework to make sure that it is identified sufficient constitutional violations to make its remedy
constitutional and proportional. i've picked out three instances. citizens united where justice stevens says great disrespect and the attack by rehnquist on our method of reasoning and scalia talking about proportionality and congruence, and that brings me to the question for you where you have been very explicit in the now famous university of chicago "law review" article about dealing with substantive issues. we had the standard for determining constitutionality under the commerce clause from maryland versus wertz, 1968.
justice harlan who acquired the standard where they have a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end. in the city of bernie case, 1997, the court pulled out of thin air a new test, and the test is whether the legislation is proportionate and congruent, and that is the test which justice scalia so roundly criticized saying it was flabby and it was an excuse for a judicial legislation. now, would you take harlan's test as opposed to the
congruence and proportionality test. >> senator specter, justice scalia is not the only person who has been critical of the test. a number of people have noted that the test, which is, of course, a test relating to congress' power to legislate under section 5 of the 14th amendment, that the test has led to some apparently inconsistent results in different cases so you have a case like garrett on the one hand and a case like tennessee versus land on the other >> i know those cases very well. 5-4. o'connor went the other way, but they used proportionate congruity. what i want to know from you is whether you think that is an appropriate standard to replace the rational basis test of wertz. >> well, i